Headnotes (non-official):

1. Fundamental rights are primarily defensive rights of the individual against the state. However, the fundamental rights of the Basic Law are also an expression of an objective order of constitutional values that amounts to a fundamental constitutional decision and therefore applies to all areas of law.

2. Private law provisions indirectly reflect the legal content of fundamental rights, primarily through mandatory provisions, and judges can give effect to this content in particular by drawing on general clauses.

3. Decisions of the civil courts may violate fundamental rights if they fail to consider the impact of fundamental rights on private law (§ 90 of the Federal Constitutional Court Act). The Federal Constitutional Court only reviews whether civil court decisions result in such violations of fundamental rights, not whether they contain legal errors in general.

4. Private law provisions may also be “general laws” within the meaning of Article 5.2 of the Basic Law; the fundamental right to freedom of expression may thus be restricted on the basis of such provisions.

5. Such “general laws” must be interpreted in light of the special significance of the fundamental right to freedom of expression in a free democratic state.

6. The fundamental right laid down in Article 5 of the Basic Law not only protects the expression of an opinion as such, but also the effects of such an expression.

7. An expression of opinion calling for a boycott is not always contrary to public policy within the meaning of § 826 of the Civil Code. In a balancing of all circumstances of the case, freedom of expression may be capable of justifying such an expression under constitutional law.

Summary:

I.

Veit Harlan was a film producer during the Nazi regime. One of his major works was the notoriously anti-Semitic film Jud Süss. After the Second World War, he was charged with, but then acquitted of aiding and abetting the persecution of Jewish persons. In 1950 he directed a new film, Immortal Lover. Prior to the film’s premiere, the applicant, then a Senator in Hamburg and Head of the Hamburg Press Office, gave a speech in a private capacity to an audience of film distributors and directors. He called for a boycott of the new film because he was convinced that it would harm Germany’s film industry, given Harlan’s history. Subsequently, the Hamburg Regional Court ordered him to refrain from such calls for boycotts on pain of a fine or imprisonment.

In his constitutional complaint, the applicant claimed that this judgment violated his fundamental right to freedom of expression.

II.

The Federal Constitutional Court held that the judgment by the Hamburg Regional Court constituted a violation of the applicant’s fundamental right to freedom of expression. Therefore, the Federal Constitutional Court reversed the judgment and remanded it to the Hamburg Regional Court for a new decision.

The Federal Constitutional Court held that fundamental rights also have an impact on private law and thus entail indirect horizontal effects. The Court’s review was limited to the question of whether the Regional Court had correctly taken into consideration the scope and significance of the fundamental right to freedom of expression when applying the general clause of § 826 of the Civil Code and when balancing freedom of expression against the interests of Harlan and the film production companies. The Court held that under Article 1.3 of the Basic Law, fundamental rights are binding upon the judiciary as directly applicable law.