Whether a company can base claims for injunctive relief against public statements on a contractual confidentiality agreement was the subject of proceedings before the Berlin Regional Court II. In this context, the court also addressed the validity of catch-all clauses. (Judgment of Feb. 24, 2026, Case No.: 27 O 42/26 eV, available here).
Background of the Decision
The defendant, an actress and journalist, had co-written a screenplay with a co-author and entered into a contract with the plaintiff film production company. In addition to the transfer of rights, the contract provided for the respondent to play a leading role. It also contained a comprehensive non-disclosure agreement.
After the managing director of the production company withdrew the leading role from the respondent, citing negative reactions from third parties in connection with her public political statements, the respondent terminated the screenplay contract. She rejected an offer of a termination agreement that would have guaranteed her the full agreed-upon fee. Subsequently, she informed a funding agency, which was to co-finance the project, that the funding was, in her view, improperly granted as a result of her termination. In addition, in an interview published on a video platform, she made critical remarks about the events and the Israel-Palestine conflict.
Seeking preliminary injunctive relief, the production company and its managing director moved to prohibit the respondent from making certain statements regarding the joint film project. They contend that the statements contain false factual assertions, constitute a breach of the contractual duty of confidentiality, and violate the German Act on the Protection of Trade Secrets (GeschGehG).
The Court’s Rationale
The Berlin Regional Court II dismissed the motion in its entirety. In the court’s view, the confidentiality clause contained in the screenplay contract is invalid, and claims for injunctive relief arise neither from the GeschGehG nor from contractual duties of consideration.
1. Catch-all Clause
First, a claim for injunctive relief did not arise from the contract’s confidentiality clause, as it was invalid. The clause reads:
“The authors undertake to maintain the strictest confidentiality regarding all internal information, processes, financial figures, and confidential details that come to their knowledge in connection with the production. This obligation shall also apply beyond the term of the contract, unless otherwise released in writing by the producer.”
The invalidity of the clause stems from the fact that it imposes an obligation of confidentiality that is unlimited in both duration and scope, thereby constituting a “catch-all clause.” The obligation is not only unlimited in duration but, due to the scope of its content (“all”) and its simultaneous vagueness (“information … and … details”), establishes a duty of complete or, at any rate, far-reaching confidentiality regarding all matters related to the production. This would mean that the respondent would be obligated to maintain confidentiality even if it had obtained internal or confidential information regarding criminal or otherwise unlawful acts by the petitioners or third parties in connection with the production. In the court’s view, there is no legitimate interest in such a comprehensive duty of confidentiality.
Such a far-reaching obligation unreasonably disadvantages the contracting party and does not withstand a substantive review under Section 307 of the German Civil Code (BGB); even as an individual agreement, it could be invalid due to a violation of Section 138 BGB. The Federal Labor Court (BAG) has already clarified the invalidity of catch-all clauses at the highest judicial level in its ruling of October 17, 2024 (Case No. 8 AZR 172/23).
2. No Breach of a Trade Secret
In the court’s view, a claim for injunctive relief does not arise from Section 6 (1) GeschGehG either. According to that provision, the owner of a trade secret may demand that the infringer remedy the infringement and, if there is a risk of recurrence, also demand an injunction.
However, pursuant to Section 2 No. 1 b) GeschGehG, trade secrets are defined as only those pieces of information that are subject to “reasonable confidentiality measures” by their lawful owner, given the circumstances.
In the court’s view, such reasonable measures were not in place. While contractual agreements, in addition to technical safeguards, could constitute appropriate confidentiality measures, the court held that since the confidentiality clause at issue was invalid, it could not serve as an appropriate protective measure. The court further clarified that the applicant’s mere intent to maintain confidentiality was insufficient to establish the status of a trade secret.
In contrast, the Baden-Württemberg Regional Labor Court (LAG) had ruled, with regard to a catch-all clause in an employment contract, that the use of an invalid contractual clause did not automatically mean that no reasonable protective measures were in place and that a claim under the GeschGehG was therefore precluded (see blog post).
3. No Breach of Duties of duties of consideration
Finally, the court also rejected a claim for injunctive relief under Section 241 (2) BGB. While obligations of consideration and confidentiality may arise from contractual relationships, their scope must be determined by way of practical concordance, considering the freedom of expression guaranteed by Art. 5 (1) of the German Basic Law (GG).
The court considers the statement made to the funding agency to be a permissible expression of opinion, as the respondent merely set forth her legal view on the validity of the termination, which was not manifestly incorrect. The court rejects the application of labor law standards, according to which grievances must first be resolved internally, since the screenplay contract at issue does not establish a comparable ongoing relationship requiring loyalty.
The other statements made in the interview were also, for the most part, true factual assertions or value judgments protected by freedom of expression, which constituted neither defamatory criticism nor formal insults. Minor deviations in oral reproduction are permissible.
Furthermore, the court emphasizes the special protection afforded to statements made in the exercise of one’s own rights. A prohibition on such good-faith statements would be incompatible with the right to a fair hearing under Article 103 (1) of the Basic Law.
The Relationship Between Confidentiality Protection and Freedom of Expression
Pursuant to Section 1(3) no. 2 GeschGehG, the exercise of the right to freedom of expression remains unaffected. Under Section 5 no. 1 GeschGehG, the acquisition, use, or disclosure of a trade secret does not fall under the prohibitions set forth in Section 4 if it is done in the exercise of the right to freedom of expression. However, this does not mean that the trade secret holder’s interests in the protection of their trade secret—which are also protected by fundamental rights under Article 12 or Article 14 of the German Basic Law (GG) – automatically take a back seat to freedom of expression. The right to freedom of expression and the protection of trade secrets do not have a hierarchical relationship with respect to one another; rather, the interests must be balanced in each specific case through a weighing of interests. A balance that is as respectful as possible must be achieved by means of practical reconciliation.
In order for freedom of expression to carry any significant weight at all in the required balancing of interests, the contested statement must first constitute an “opinion” within the meaning of Article 5 (1) of the Basic Law. This term is to be understood broadly and is characterized by elements of commentary and personal views within the context of an intellectual debate. The boundary of permissible expression of opinion is crossed when the focus is no longer on the debate over the matter itself but rather on disparaging the person, and the statement thus constitutes defamatory criticism not protected by Article 5 (1) of the Basic Law. However, a trade secret is unlikely to ever consist of a mere opinion.
Furthermore, true statements of facts are also protected by Article 5 of the German Basic Law (GG), as they are a prerequisite for forming an opinion. At this point, there may be an overlap with the GeschGehG: factual assertions can constitute a trade secret. This is where the balancing of interests described above comes into play. Untrue factual assertions, on the other hand, are not covered by Article 5 of the German Basic Law (GG) from the outset.
A decision by the Dresden Higher Regional Court (judgment of November 25, 2025, Case No.: 4 U 1120/25, available here) also demonstrates that courts often attach great importance to freedom of expression. The court rejected a claim for an injunction against statements made by a former employee about the company on the grounds that the confidentiality agreement did not cover the expression of opinions. Furthermore, the court emphasized that an overly broad duty of confidentiality would infringe upon the former employee’s freedom of occupation under Article 12 of the German Basic Law (GG).
Conclusion
The decision by the Berlin Regional Court II once again makes it clear that confidentiality clauses that are too broad in terms of time or content are invalid as “catch-all” clauses. While the Higher Labor Court of Baden-Württemberg ruled that catch-all clauses do not automatically lead to the assumption that no appropriate confidentiality measures within the meaning of Section 2 no. 1 b) GeschGehG were taken, the Berlin Regional Court II cited this circumstance as a decisive argument. It remains to be seen how other courts will assess this aspect in the future.
Furthermore, the ruling makes it clear that freedom of expression carries considerable weight. As soon as a statement can be classified as an “opinion” or “allegation of fact” within the meaning of Article 5 (1) of the German Basic Law (GG) and thus falls within its substantive scope of protection, it enjoys far-reaching protection. Nevertheless, the interests of both parties must be considered in a balancing of interests, meaning that the outcome always depends on the specific circumstances of each case.