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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 19 December 2021, 1 BvR 1073/20 [CODICES] |
Second Chamber of the First Senate Order of 19 December 2021 1 BvR 1073/20
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1. If someone claims that a statement violates their general right of personality, a finding that the statement in question amounts to insult within the meaning of § 185 of the Criminal Code requires a balancing of interests that weighs the impairments of the affected legal interests, in this case freedom of expression and personal honour. 2. The courts can only forgo such balancing of interests in exceptional cases subject to narrowly defined conditions: calumny (Schmähung), profanity (Formalbeleidigung) or attacks on human dignity. 3. If none of the narrowly defined exceptions applies, the courts must, in a balancing on the basis of fundamental rights, address the specific circumstances of the case and the context in which the statement was made. The circumstances to consider may include contents, form and effects of the statement, as well as the reasons for making the statement. They may also include the questions of who and how many persons made the statement, who and how many persons are affected by it and who and how many persons became aware of it. a) The more a statement seeks to contribute to the formation of public opinion, the greater the weight that must be accorded to freedom of expression in the balancing of interests; the more the statement merely seeks to stir up emotions against individuals, without seeking to contribute to the formation of public opinion, the lesser the weight accorded to freedom of expression. b) When weighing the fundamental rights interests affected by a statement, it must be taken into consideration that the protection of freedom of expression has evolved to protect criticism of persons in power. Thus, it must be part of the balancing whether a statement criticises persons in power and whether it was prompted by previous statements made in the context of public debate; however, these aspects cannot justify all verbal abuse, including personal abuse or hate speech, vis-à-vis officials or politicians. The Constitution sets limits to statements that seek to denigrate someone or incite hatred against them, particularly in public; these limits also apply to statements concerning public figures and officials. In this respect, too, statements merit less protection the more they focus on denigrating the person in question rather than being part of a public debate. The question of which statements public figures must tolerate does not only depend on the type of statement and its circumstances, but also on the position of the public figure and the level of public attention they seek. c) In particular when information is disseminated via social media, the effective protection of the personality rights of politicians and officials is also in the public interest, which can reinforce the weight of these rights in the balancing of interests. People will only be willing to engage in public life and participate in state and society if sufficient protection of their personality rights is guaranteed. d) With regard to the form and circumstances of a statement, it may be significant whether the statement was made ad hoc in a heated debate or after careful consideration. A greater degree of consideration and restraint can generally be expected of written statements. In principle, this also applies to written statements posted on social media. It is also relevant in this respect if and to what extent there were specific and comprehensible reasons for making the statement, or a situation was only used as a pretext for making the statement.
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Summary:
II. The Federal Constitutional Court held that the challenged court decisions violate the applicant’s general right of personality insofar as they denied the applicant a court order to obtain the subscriber data of the remaining ten users. In doing so, the ordinary courts failed to recognise the scope and significance of the general right of personality. When reviewing whether disparaging statements violate the general right of personality, the courts must examine the contents of the statements in question. On this basis, they must balance freedom of expression against the protection of personal honour. They must also take into account the context and circumstances under which the statement in question was made. The challenged court decisions do not satisfy these requirements. The Higher Regional Court incorrectly considered that the conditions for insult were only met if a statement amounted to calumny, holding that a statement only became punishable under criminal law once it had to be considered a mere denigration of the person concerned in any conceivable context. The Higher Regional Court failed to conduct the required balancing and used a flawed standard to assess the statements in question.
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