Successful constitutional complaint of a journalist against a court decision prohibiting a critical statement about the Federal Government

Press Release No. 37/2024 of 16 April 2024

Order of 11 April 2024
1 BvR 2290/23

In an order published today, the First Chamber of the First Senate of the Federal Constitutional Court granted a constitutional complaint in which a journalist challenged a preliminary injunction prohibiting him from making a critical statement about the Federal Government.

In August 2023, the complainant published the following short post on the communication platform ‘X’: ‘Germany has paid 370 MILLION EUROS (!!!) in development aid to the TALIBAN (!!!!!!) in the past two years. We are living in a madhouse, in an absolute, complete, total, historically unique madhouse. What kind of government is this?!’. The short post contained a link to an article in an online news magazine with the headline ‘Germany pays development aid for Afghanistan again’. On application of the Federal Government, the Berlin Higher Regional Court (Kammergericht) prohibited the complainant from making the statement ‘Germany has paid 370 MILLION EUROS (!!!) in development aid to the TALIBAN (!!!!!!) in the past two years’. According to the Berlin Higher Regional Court, the statement amounts to an untrue factual assertion that could jeopardise public trust in the Federal Government’s activities. The complainant challenged this ruling with his constitutional complaint.

The challenged decision of the Berlin Higher Regional Court violates the complainant’s fundamental right to freedom of expression under Art. 5(1) of the Basic Law (Grundgesetz – GG). The decision discernibly misses the point of the statement at issue and fails to recognise it as an expression of opinion. In principle, the state must also tolerate harsh and polemic criticism. When interpreting the meaning of the statement at issue, the Higher Regional Court ignored the article headline in the link preview at the end of the short post and thus failed to go beyond considering the text of the post in isolation.

Facts of the case:

On 25 August 2023, the online news magazine (...) published an article with the headline ‘Germany pays development aid for Afghanistan again’. The article stated, among other things: ‘Since the Taliban seized power in Afghanistan two years ago, the Federal Government has provided 371 million euros for development aid in the country. (...).’ About one hour after its publication, the complainant posted a short message linking to this article on the communication platform ‘X’. The post read as follows: ‘Germany has paid 370 MILLION EUROS (!!!) in development aid to the TALIBAN (!!!!!!) in the past two years. We are living in a madhouse, in an absolute, complete, total, historically unique madhouse. What kind of government is this?!’. At the end of his post, the complainant inserted the web link to the article, whose headline ‘Germany pays development aid for Afghanistan again’ was displayed below the link.

By the challenged order of 14 November 2023, the Berlin Higher Regional Court prohibited the complainant from making the statement ‘Germany has paid 370 MILLION EUROS (!!!) in development aid to the TALIBAN (!!!!!!) in the past two years’. The Higher Regional Court held that legal persons under public law can claim protection under civil law against attacks which unlawfully disparage their public reputation. According to the Higher Regional Court, legal persons may in any case assert such protection of honour if the specific statement is likely to seriously impair them in performing their functions. The Higher Regional Court found this to be the case here: The complainant’s statement risked creating the public impression that the Federal Government was paying development aid to a terror regime that was trampling on the rights of its population. In the Higher Regional Court’s view, this could sow doubt and diminish trust in the work and proper functioning of the Federal Government.

The complainant asserts that the order of the Berlin Higher Regional Court violates his fundamental right to freedom of expression.

Key considerations of the Chamber:

The constitutional complaint is manifestly well-founded. The challenged decision violates the complainant’s fundamental right to freedom of expression under Art. 5(1) of the Basic Law.

1. a) The state is not entitled to protection of honour as afforded by fundamental rights law. In principle, the state must also tolerate harsh and polemic criticism. It is true that generally state institutions may also enjoy protection from verbal attacks, given that a minimum level of societal acceptance is indispensable for them to fulfil their functions. However, protecting state institutions to this effect must not lead to shielding them from public – possibly even harsh – criticism that is particularly protected by the fundamental freedom of expression and that the state can counter by exercising its right to clearly and unequivocally reject incorrect representations of facts or discriminatory value judgments. The fundamental freedom of expression is the very foundation of the free and democratic order. As such, this fundamental right must be afforded exceptional weight here, given that the very reason for its existence and the unaltered source of its significance is the special need to protect criticism of persons in power.

b) A prerequisite for any legal assessment of statements is that their meaning has been correctly understood. While the wording of the statement must always be the starting point here, it does not conclusively determine its meaning. Rather, the linguistic context in which the disputed statement was made also determines the meaning, as do the accompanying circumstances, insofar as these were recognisable to the recipients. Courts misjudge the significance and scope of the freedom of expression if they incorrectly classify a statement as a factual assertion, profanity (Formalbeleidigung) or calumny (Schmähkritik) in the constitutional sense, meaning that the statement is not afforded the protection under the fundamental freedom of expression that is due to non-profane or non-calumnious value judgments.

2. Measured against this standard, the decision of the Berlin Higher Regional Court violates the complainant’s fundamental right to freedom of expression because it discernibly misses the point of the statement at issue and fails to recognise it as an expression of opinion.

a) Given that the complainant included a preview of the news article in his post, his intention to establish a substantive link between the two stood out from the perspective of an average reader. If a court assessing the context in which a controversial statement was made ignores the headline of a news article that the statement refers to – the content of such headline even being directly perceptible to any recipient of the statement –, the court fails to meet the constitutional requirements for interpreting controversial statements. This was the case here.

b) By ignoring the headline ‘Germany pays development aid for Afghanistan again’ reproduced at the end of the short post, the Berlin Higher Regional Court failed to go beyond considering the text of the post in isolation when interpreting the meaning of the statement. Moreover, the court did not consider whether the assumption of a factual assertion should be ruled out as remote in view of the reproduced headline ‘Germany pays development aid for Afghanistan again’ and whether an average reader would have assumed that the statement constituted a pointed expression of opinion to the effect that by paying ‘development aid for Afghanistan’ Germany is in fact paying ‘development aid to the Taliban’.  At the same time, the Higher Regional Court lost sight of the fact that criticising the Federal Government by making a statement that is characterised by elements of commentary, support and opinion is protected as an expression of opinion even if it mixes facts and opinions. There are two further aspects that the Higher Regional Court failed to consider: the Federal Government has not denied providing financial development aid ‘for Afghanistan’, nor does the Higher Regional Court itself doubt that there is a risk of these payments indirectly benefitting the rulers in Afghanistan.