In a ruling dated February 8, 2017 (case reference: 1 BvR 2973/14), the Federal Constitutional Court commented on the classification of a statement as defamatory criticism.
The statements must always be interpreted in the light of freedom of expression and must remain a “special case to be treated narrowly“.
Even exaggerated or even abusive criticism does not in itself make a statement defamatory.
Offensive comments at a meeting
The reason for the constitutional complaint was a dispute between the leader of a demonstration and a member of the Bundestag from the Alliance 90/The Greens party.
The latter was leading the counter-demonstration in order to actively prevent the right-wing march from taking place.
In the course of this, he repeatedly referred to the participants of the demonstration literally and analogously asa“brown troop” and “right-wing extremist idiots“.
Following this statement, the event organizer replied:
I see an agitated Green member of the Bundestag here, giving commands, calling on the SA hordes here as Obergauleiter.
These are the children of Adolf Hitler.
It’s the same ideology, they started out the same way.
Following a criminal complaint by the member of the Bundestag, the district court sentenced the leader of the meeting to a fine for insult in the form of abusive criticism.
On appeal, the regional court cautioned the assembly leader and reserved the right to impose a fine.
The appeal was unsuccessful.
The leader of the assembly appealed against the last-instance ruling with a constitutional complaint.
In it, he essentially complained that his freedom of expression had been violated.
Vilification remains a special case of disparaging statements
The Federal Constitutional Court has now upheld the constitutional complaint.
The challenged decision violated the complainant’s fundamental right to freedom of expression, Art. 5 para.
1 SENTENCE 1 GG:
The fundamental right to freedom of expression not only protects factually differentiated statements.
Rather, criticism may also be pointed, polemical and exaggerated.
However, derogatory statements that constitute a formal insult or vilification are a special case.
In such cases, it is not necessary to weigh up freedom of expression and personal rights, as freedom of expression regularly takes second place to the protection of honor.
Courts of first instance fail to recognize the importance of freedom of expression
According to the BVerfG, the meaning and scope of freedom of expression are also misjudged if a statement is incorrectly classified as abusive criticism.
This is because they are then no longer subject to the same degree of protection of fundamental rights as statements that are to be regarded as value judgments.
The courts of first instance failed to weigh up the freedom of opinion and the general right of personality of the member of the Bundestag affected by the statement as required.
In this way, the court of last instance also arrived at a constitutionally unacceptable classification as defamatory criticism.
It disregards the significance and scope of the freedom of opinion protected by Art. 5 para.
1 sentence 1 GG.
Insufficient consideration of the overall circumstances
The challenged decision also misunderstands that the leader of the meeting was also commenting on the actions of the member of the Bundestag with his statement.
This is because he was not solely concerned with the personal disparagement of the injured party.
Classification as defamatory criticism must remain a special case to be treated closely
The assumption of defamation must remain a special case to be handled narrowly due to the typical lack of consideration associated with it, especially with regard to statements that are judged to be insulting.
In order to avoid neglecting freedom of expression, the classification of a statement as defamatory criticism must remain a special case to be treated narrowly.
The Federal Constitutional Court thus sets a very narrow standard for the future.