In the two judgments from 10.01.2017 (Ref.: VI ZR 561/15 and VI ZR 562/15), the BGH dealt in detail with the extent to which the content of a satirical statement within a satire show is determined.
In order to determine the content of the statement, a statement must always be assessed in the overall context in which it was made.
Statements in a satirical program
Editors of the weekly newspaper “Die Zeit” sued ZDF for injunctive relief.
ZDF had previously broadcast the satirical format “Die Anstalt” in April 2014.
This program featured a dialogue between two cabaret artists on the issue of the independence of journalists on the topic of security policy.
The editors of the weekly newspaper were convinced that the statement made was a factual assertion.
They were allegedly members of organizations that deal with security policy issues.
In addition, it was falsely claimed that the editors had helped to prepare the Federal President’s speech for the security conference, which they subsequently reported on very favorably.
The content of the statement is determined in the overall context
After the Higher Regional Court ordered ZDF to cease and desist, the Federal Court of Justice overturned this appeal ruling and dismissed the rest of the claim.
The Higher Regional Court had inferred an incorrect meaning from the statements in the satirical program.
If the content of the statement had been correctly determined, the cabaret artists had not made the statement described above.
Thus, their conduct could not be prohibited.
A statement must always be considered in its overall context in order to determine its meaning.
Statements in the context of a satirical contribution must also be stripped of their satirical clothing, which is inherent to the alienation, in order to determine their actual content.
Decisive: The view of an average viewer
In the case of a satirical television contribution, the decisive factor is which message is received by an unbiased and intelligent viewer in view of the multitude of impressions.
The statements in the satirical programme “Die Anstalt” were – in compliance with the principles outlined by the BGH – only a statement that there was a connection between the editors and the organizations mentioned in the programme.
This statement is also true and therefore an admissible factual allegation.
“Satire is allowed to do almost anything”
Even after Tucholsky’s famous statement in 1919: “What is satire allowed to do? – Everything”, the BGH shows that there are clear limits to satire.
Statements must always be considered in the overall context and from the perspective of an average addressee.
Nevertheless, there is a wide margin of appreciation when assessing the legal situation, which gives the impression that satire is allowed to do almost anything.