Headnotes

to the Order of the First Senate of 10 November 1998

1 BvR 1531/96

1. The general right of personality (Article 2(1) in conjunction with Article 1(1) of the Basic Law) also protects the individual against falsely imputed membership of an association or group where such imputed membership has a certain significance for their personality and public image.

2. It is incompatible with the general right of personality that a person adversely affected by a factual assertion is completely barred from refuting that assertion as false in court proceedings on the grounds that the person making the assertion already presented circumstantial facts supporting the assertion.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 1531/96 -

IN THE NAME OF THE PEOPLE

In the proceedings
on the constitutional complaint of

the Federal Constitutional Court – First Senate –

with the participation of Justices

Vice-President Papier,

Grimm,

Kühling,

Jaeger,

Haas,

Hömig,

Steiner

held on 10 November 1998:

1. The Judgment of the Frankfurt am Main Higher Regional Court of 20 June 1996 - 16 U 163/95 - violates the complainant’s fundamental right under Article 2(1) in conjunction with Article 1(1) of the Basic Law insofar as it rejects his action for injunctive relief. To that extent, the judgment is reversed together with the decision on costs and the matter is remanded to the Higher Regional Court.

REASONS:

A.

The constitutional complaint challenges the rejection of an action under private law seeking injunctive relief against defamatory statements.

I.

The complainant, a well-known Austrian artist living in Germany, had been studying the works and teachings of Scientology since 1972 and had also attended courses offered by this organisation. Since 1975, he was referred to as a Scientologist in various magazines or associated with Scientology in other contexts.

[…] In 1989, the magazine Celebrity , published in the United States by the ‘Church of Scientology – Celebrity Centre International’, […] ran an article about the complainant. The article was illustrated with pictures of the complainant and the first part of the text provided information on his biography and career. The article stated inter alia that the complainant had joined Scientology in 1973, that he was an ‘OT® V’ and had attended the ‘Academy Levels’ at the ‘Celebrity Centre’ in Düsseldorf.

‘OT’ is short for ‘Operating Thetan’; according to the teachings of Scientology, this term designates a person who has attained the state of total spiritual freedom through a series of gradient steps of salvation, is committed to social causes and actively contributes to solving social problems and grievances. The ‘Academy Levels’ are Auditor training courses. In Scientology terminology, an ‘Auditor’ is roughly equal to a priest.

The second part of the article featured questions asked by Celebrity and corresponding answers. The answers conveyed the impression that they were actual statements by the complainant, since the entire article was presented as an interview with the complainant and the text referred to him by his first name. The interview included the following statements:

I overheard other artists talking about Scientology in Vienna in 1973. (…) Together with an artist friend of mine, I attended the Communications Course. […] All my old problems disappeared. (...) I think that artists need Scientology to survive. (…) The Celebrity Centre in Düsseldorf is the best. (…) I love being there. (…)

[translator’s note: the English magazine excerpts were retranslated from the German text used in the decision of the Federal Constitutional Court. The original English text is no longer available to the Court. ]

[…]

In Issue 262 of 1993, Celebrity presented five celebrities in an advertising campaign featuring ‘answers’ to the headline question “Why should you train?”. The caption under a picture of the complainant read “H., Class IV Auditor, world-renowned artist”. The corresponding ‘answer’, set in inverted commas, included inter ali a the following statements […]:

In my view, the artist is the most vulnerable person in the world. (…) If you make a great impact through music or paintings, you will be in trouble, since there are certainly people in this world who are opposed to this and will do everything they can to suppress your work. (…) I think that artists need Scientology to survive. Scientology training is the best. (…)

[…]

2. In Germany, a private initiative had successfully campaigned for the site of the former concentration camp Neue Bremm in Saarbrücken to be transformed into a memorial site based on an artistic concept. The complainant was among the artists considered for this project and was asked to create a model [of his proposed design]. His involvement was opposed by two private associations committed to the fight against religious cults, which sent an open letter to the media and politicians. Excerpts from the letter read as follows:

(…) The fact that Austrian artist H., who promotes the criminal and totalitarian Scientology Church all over the world, was asked to create a model for the memorial site’s new artistic concept (…) is absolutely appalling.

[…]

The complainant was ultimately not chosen for the project.

3. a) Upon an action brought by the complainant […], the Regional Court ordered the defendants […] to refrain from making or disseminating the following assertions, either verbatim or in spirit:

1. The Austrian artist H. calls himself a priest.

2. The Austrian artist is an Auditor IV of the Scientology Church.

3. H. is part of a group that works to destroy people’s minds by using lie detectors and forced hypnosis for brainwashing purposes.

4. […]

[…]

b) Following the defendants’ appeal on points of fact and law (Berufung ), the Higher Regional Court reversed the decision by the court of first instance […] [and] rejected the complainant’s action. […]

[…]

II.

In his constitutional complaint, the complainant claims a violation of his general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

He asserts that he is not a Scientologist, that he has neither received training as a priest nor assumed the role of a priest, and that he has never referred to himself as a priest. […] While he did study Scientology in the 1970s and 1980s and […] attended classes during this time, he claims to have distanced himself from Scientology since 1992 and to have sought recourse before the courts against the assertions that he was a member of Scientology.

[…]

III.

The defendants in the initial proceedings submitted a statement in the constitutional complaint proceedings. The Working Group for Mental and Psychological Freedom (Arbeitsgemeinschaft für Geistige und Psychische Freiheit, AGPF ), an umbrella association of initiatives working against cults, which one of the defendants in the initial proceedings is a member of, submitted a statement on its own initiative.

[…]

B.

The constitutional complaint is well-founded. The challenged decision violates the complainant’s general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law insofar as it rejects his action for injunctive relief. […]

I.

The challenged decision affects the complainant’s general right of personality.

1. The general right of personality affords protection against being falsely portrayed as the member of a group if such imputed membership has a certain significance for one’s personality and adversely affects one’s public image.

The general right of personality protects aspects of one's personality that are not covered by specific freedoms, but are equal to these freedoms in terms of their constitutive significance for one’s personality (cf. BVerfGE 54, 148 <153>; established case-law). One such aspect is the social recognition of the individual. Therefore, the general right of personality encompasses protection against statements which are capable of tarnishing one’s public image. Such statements jeopardise the free development of one’s personality guaranteed under Art. 2(1) of the Basic Law because they damage the affected person’s reputation in society, weaken their social relations, and as a result may undermine their self-esteem. However, the protection afforded by this fundamental right does not go so far as to grant individuals the right to be portrayed in public only as they see themselves or as they wish to be seen by others. Yet the general right of personality does protect individuals from skewed or distorted portrayals of their person whose significance for the free development of their personality is not entirely negligible (cf. BVerfGE 97, 125 <148 and 149>; 97, 391 <403>).

Membership in a particular group or association generally affects one’s personality in this sense. For most people, being affiliated with a group through birth or socialisation influences how their identity forms and develops. Where individuals join a group or association of their own free will, it generally means that they strongly identify with the aims and activities of said group or association, which may be determinant for their personality. As the case may be, people will more or less associate an individual with the groups or organisations the individual identifies with. The individual’s reputation no longer depends solely on their own characteristics and achievements as an individual, but also on how the groups they belong to are perceived (cf. BVerfGE 93, 266 <299>). This applies in particular to groups or associations whose self-defined mission is informed by religious or ideological beliefs; it is especially true for groups or associations falling outside the traditional religious or ideological communities that represent a minority and are viewed critically or even rejected by society.

2. The challenged decision impairs the complainant’s fundamental right under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

However, the constitutional protection against negative assertions cannot directly be invoked against third parties. Like other fundamental rights, the general right of personality is only directly applicable vis-à-vis the state. Yet it does give rise to a duty of the state to protect individuals against risks to their personality originating from third parties (cf. BVerfGE 73, 118 <201>; 97, 125 <146>). When applying legal provisions that give effect to such protection, the ordinary courts must take into account the relevant constitutional standards. According to the Federal Constitutional Court’s established case-law, failure on the part of ordinary courts to meet these standards not only violates objective constitutional law, but also the individual fundamental rights of affected persons (cf. BVerfGE 7, 198 <206 and 207>).

Therefore, where individuals challenge statements affecting their personality on the grounds that these statements are false, yet the courts find the statements to be permissible, these court decisions impair the general right of personality. This holds true for the court’s rejection of the complainant’s action seeking injunctive relief against the assertion that he is a member of Scientology, that he had referred to himself as a Scientology priest and that he was indeed a priest. The assertion that he had close ties to Scientology could negatively influence his public image. This is especially true in the present case given that Scientology is extremely controversial in society and has often been the subject of warnings by state officials and of critical press reports. It cannot be ruled out that the assertion that the complainant is a leading Scientologist makes his work as an artist more difficult, since damage to his reputation could adversely affect commissions or purchases of his art.

II.

The challenged decision violates the general right of personality.

1. The general right of personality is not guaranteed without reservation. Under Art 2(1) of the Basic Law, it is limited by the constitutional order, including the rights of others. These rights include freedom of expression guaranteed to everyone by Art. 5(1) of the Basic Law. Yet just like the general right of personality, freedom of expression is also not guaranteed without reservation. Pursuant to Art. 5(2) of the Basic Law, it may be limited inter alia by the provisions of general laws and by the right to personal honour. Private law actions for injunctive relief may be based on § 1004(1) and § 823(2) of the Civil Code in conjunction with § 186 of the Criminal Code. The Higher Regional Court based its judgment on these provisions. By contrast, § 193 of the Criminal Code primarily gives effect to interests relating to freedom of expression (cf. BVerfGE 12, 113 <125 and 126>; 93, 266 <290 and 291). This provision contains an exemption from liability for defamation where the respective statement seeks to safeguard legitimate interests. This also applies in private law relations, either by directly invoking § 823(2) of the Civil Code or by invoking the general precept underlying it.

The interpretation and application of these provisions falls to the competent [ordinary] courts. The interpretation adopted by the ordinary courts, however, must be guided by the affected fundamental rights to ensure that the values enshrined therein are upheld when applying the relevant statutory provisions (cf. BVerfGE 7, 198 <205 et seq. >). This generally requires that the severity of a statement’s adverse impact on an individual’s personality be balanced against the curtailing of freedom of expression that prohibiting the statement would entail. This balancing must be undertaken in respect of the constituent elements set out in statutory law that lend themselves to interpretation, taking into account the specific circumstances of the case.

The outcome of the balancing can generally not be determined in the abstract, given that the balancing is contingent upon the circumstances of the individual case. Yet over time, certain rules have emerged from the case-law that guide the determination as to which legal interest takes precedence. Where statements containing value judgments are concerned, protecting the right of personality usually takes precedence over freedom of expression if the relevant statement amounts to an attack on human dignity, calumny (Schmähkritik ) or profanity (Formalbeleidigung ) (cf. BVerfGE 93, 266 <293 and 294). Where statements containing factual assertions are concerned, the outcome of the balancing depends on their truthfulness. Generally, true statements must be tolerated, even where they adversely affect the person concerned. Untrue statements do not have to be tolerated (cf. BVerfGE 97, 391 <403>).

However, this formula requires further differentiation. In exceptional cases, even where statements are true, interests relating to one’s personality may take precedence over freedom of expression, which must then stand back. In particular, this is the case if the statements relate to the intimate, private or confidential sphere and cannot be justified by a legitimate interest of the public in obtaining information (cf. BVerfGE 34, 269 <281 et seq .>; 66, 116 <139>) or if they are likely to impair one’s personality to a degree that is disproportionate to the interest in disseminating the truth (cf. BVerfGE 35, 202 <232>; 97, 391 <403 et seq .>).

By contrast, there is generally no justification for disseminating untrue factual assertions. However, this does not mean that all untrue factual assertions are, from the outset, excluded from the scope of protection of freedom of expression. While the Federal Constitutional Court has established that incorrect information is not a value meriting protection under freedom of expression (cf. BVerfGE 54, 208 <219>), only deliberately untrue factual assertions and assertions that are demonstrably false at the time they are made are excluded from the scope of protection of Art. 5(1) first sentence of the Basic Law. All other factual assertions bearing a connection to freedom of expression enjoy fundamental rights protection, even if they later turn out to be untrue (cf. BVerfGE 61, 1 <8>; 90, 1 <15>; 90, 241 <254>).

Whether and to what extent a statement is true is a significant factor for the required balancing of interests (cf. BVerfGE 94, 1 <8>). In principle, when untrue assertions are made, freedom of expression stands back behind the right of personality. It must, however, be taken into account that the truth is often uncertain at the time a statement is made and can only be determined through discussion or judicial review (cf. BVerfGE 97, 125 <149>). Given these circumstances, imposing sanctions in all cases where statements turn out to be untrue in retrospect could jeopardise the culture of communication, as the only statements that could be made safely would be statements of irrefutable truths. This would have a deterrent effect on the exercise of fundamental rights, which must be avoided for the sake of freedom of expression (cf. BVerfGE 43, 130 <136>).

Therefore, the case-law of the civil courts has sought to achieve a balance between the requirements deriving from freedom of expression and the protection of one’s personality by imposing duties of care on those making negative statements about others. In the specific case, the exact nature of such duties is determined by the means available for establishing the truth; they are stricter for the media than for individuals (cf. BGH, NJW 1966, p. 2010 <2011>; NJW 1987, p. 2225 <2226>). There are no constitutional objections to the recognition of such duties (cf. BVerfGE 12, 113 <130>). On the contrary, they may be seen as a manifestation of the duty of protection deriving from the general right of personality. Ultimately, what matters under constitutional law is that the duty to be truthful does not become excessive in scope, hampering free communication, which Art. 5(1) of the Basic Law seeks to protect (cf. BVerfGE 54, 208 <219 and 220>; 61, 1 <8>; 85, 1 <15, 17>).

The outcome of the balancing depends on whether these duties of care were observed. Where an assertion is completely unfounded or purely speculative, freedom of expression does not take precedence over the right of personality. Moreover, the duties of care derived from constitutional law and their specific scope are significant in this respect. If the applicable duty of care has been observed yet the statement subsequently turns out to be untrue, the statement must be qualified as lawful at the time it was made, so that no punishment, retraction or damages may be imposed. By contrast, there is no legitimate reason for upholding an assertion after it has been proven false (cf. BVerfGE 97, 125 <149>). If there is a danger that the statement will nevertheless be upheld in the future (so-called risk of first infringement – Erstbegehungsgefahr; cf. BGH, NJW 1986, p. 2503 <2505>), a court can order the person making the statement to refrain from doing so. If the statement continues to impair the person affected by it, they may request that the statement be corrected (cf. BVerfGE 97, 125 <149>).

Determining the truthfulness of factual assertions is often extremely difficult; therefore, the civil courts place an extended burden of substantiation on persons making negative statements about third parties, which requires them to substantiate circumstantial facts supporting their assertions (Belegtatsachen ) (cf. BGH, NJW 1974, p. 1710 <1711>). This extended burden of substantiation is the procedural equivalent of the substantive law principle that – in the case of speculative assertions – the protection afforded freedom of expression must stand back behind the protection of one’s personality. If the person making an assertion is unable to substantiate it with supporting facts, the assertion will be treated as false.

This standard [developed by the ordinary courts] is not objectionable under constitutional law, provided that the requirements derived from the burden of substantiation are not overly strict to the detriment of freedom of expression. […] Where individuals make factual assertions that are not based on events that they have personally witnessed, it is usually sufficient to use uncontested press reports as references that are capable of supporting the assertions in order to satisfy the burden of substantiation. Otherwise, it would hardly ever be possible for persons voicing individual opinions to invoke press reports containing negative statements about others despite the influence of the media on the opinion-forming process (cf. BVerfGE 85, 1 <22>).

However, satisfying the burden of substantiation does not render establishing the truth obsolete. Rather, it is necessary to distinguish, at the procedural level, between the rules of substantiation and the rules of evidence. Even where the person making an assertion substantiates facts supporting the assertion, it can still be false. For that reason, it would be incompatible with the general right of personality if the person adversely affected by a factual assertion could no longer challenge that assertion as false because they are procedurally barred from doing so in the event that the person making the assertion already satisfied the burden of substantiation. The truthfulness of the disputed statement may only be presumed [under procedural law] if the affected person fails to refute the facts submitted to substantiate the assertion. In all other cases, the truthfulness of the statement must be determined in accordance with the general rules of evidence.

This applies even where the factual assertions originate from press reports. […]

2. The Higher Regional Court did not satisfy these requirements arising from the general right of personality.

a) The refusal to grant the injunctive relief sought in respect of statement no. 1 does not meet constitutional standards.

This notwithstanding, it is not objectionable under constitutional law that the Higher Regional Court qualified statement no. 1 (that the complainant described himself as a Scientology priest) as a factual assertion. […] However, the court erred when it held that it was not necessary to assess the truthfulness of this assertion. In the case at hand, the court would have been obliged to take into account the complainant’s submission that he had not approved the article in which he supposedly called himself a priest; that the contents of this article were untrue, at least with regard to the assertion that he had served as an Auditor; and that he had distanced himself from Scientology in 1992.

In particular regarding the submission that the complainant had distanced himself [from Scientology], the Higher Regional Court should have taken into account that changing one’s view and endorsing new positions is also an expression of one’s personality. In this case, third parties can be expected to respect the new self-image that arises when individuals have seriously and publicly distanced themselves from an organisation they used to be involved with. Third parties may then only impute past membership in this group. As the challenged statement is expressed in the present tense, the decisive factor for upholding the disputed statement is not just whether the complainant had indeed referred to himself [as a priest of Scientology] in the past but also whether he had later distanced himself from Scientology, as he claims.

b) The Higher Regional Court’s decision furthermore violates the complainant’s general right of personality by refusing the injunctive relief sought in respect of statement no. 2. The Higher Regional Court […] erred in finding that in light of the Celebrity articles, it was not necessary to determine whether it is true or false that the complainant was an “Auditor IV” […]. Instead, the court would have been required to take into account that the complainant denies having been trained or having served as an Auditor, and that he had submitted declarations from the Church of Scientology in Germany to support his claim. Moreover, the court should have assessed whether and how seriously the complainant had made efforts to distance himself from Scientology, as he claims he did.

c) Finally, the Higher Regional Court’s decision violates the complainant’s general right of personality by refusing to grant injunctive relief in respect of statement no. 3.

It is true that the Higher Regional Court did not leave open the question whether the complainant was a Scientologist, as it actually found this to be a proven fact. It is also true that the court qualified this assertion and the statements about the organisation’s activities as derogatory. Yet it also held that freedom of expression takes precedence over the protection of the complainant’s personality. In doing so, the court failed to take into account that the complainant had objected to the defendants’ assertions by claiming to have distanced himself from Scientology. As this disregard [for the complainant’s submission] is rooted in an incorrect understanding of the scope of protection afforded by the general right of personality, the shortcomings of the decision that have been established in respect of statements nos. 1 and 2 apply accordingly in respect of statement no. 3 […].

3. The challenged decision is based on a violation of a fundamental right. […] It cannot be ruled out that the Higher Regional Court would have reached a different conclusion, one that would have been more favourable for the complainant, if it had taken into consideration the requirements deriving from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.