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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.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 18 February 2010, 1 Bvr 2477/08 [CODICES]
Abstract
First Chamber of the First Senate
Order of 18 February 2010
1 BvR 2477/08

Headnotes (non-official):

Statements of fact fall within the scope of protection of freedom of expression under Article 5.1 of the Basic Law provided such statements potentially contribute to the shaping of opinions.

Statutory provisions that give rise to a civil-law claim for cease-and-desist on account of a violation of the general right of personality qualify as legal provisions limiting fundamental rights within the meaning of Article 5.2 of the Basic Law. However, when interpreting and applying such provisions the regular courts must give sufficient consideration to the significance of the fundamental right thus restricted, especially with regard to its value-defining function.

Summary:

I.

The complainant operates a website on which he publishes online news articles. He intended to publish an article by the author R. on that site. The article dealt with a lawsuit before the civil courts in which the complainant and R. were co-defendants against a claim for cease-and-desist in relation to the publishing of a book. In this lawsuit, lawyer H. acted as legal representative for the claimant. Against this backdrop, the complainant wrote to a partner of H’s law firm in order to enquire whether he could use a photograph taken from the law firm's homepage for the envisaged publication on the complainant’s website. The tone of the enquiry was in part unfriendly, in part ironic. The partner contacted – who is the plaintiff in the initial proceedings that gave rise to the constitutional complaint at hand (hereinafter: plaintiff) – explicitly objected to such use of pictures of himself and of his partner, the lawyer H., and threatened to take legal steps against the complainant. When R.'s article was subsequently published on the relevant online news site, it was accompanied by comments on legal representative H.'s demeanour during the court’s oral hearing in the lawsuit against R., but also on the outer appearance of H. The article was accompanied by an editor’s note stating that, following an enquiry, the plaintiff "had not been willing to grant permission that an impressive webiste photo of his law firm could be used illustrate R.'s commentary". In addition, the content of the plaintiff's email and another email in which H. had explicitly objected to the use of his picture were quoted verbatim.

In response, the plaintiff filed an action against the complainant before the Berlin Regional Court (Landgericht) seeking an order to cease and desist from quoting verbatim from the relevant lawyer's correspondence. In the judgment challenged by the constitutional complaint, the Regional Court confirmed the existence of a right to a cease and desist order based on the provisions set out in § 823.1 and § 823.2 in conjunction with § 1004.1 sentence 2 of the Civil Code (. The court held that by having his harshly worded objection reproduced on the complainant's website, the plaintiff was publicly made to look like someone who reacted with a strong threat to a simple request, and that the resulting interference with the plaintiff's right of personality weighed more heavily than the public interest in obtaining this information. The complainant's appeal on questions of fact and law (Berufung) was rejected as unfounded.

II.

The First Chamber of the First Senate of the Federal Constitutional Court reversed the decisions of the regular courts and remanded the case for a new decision.

In essence, the Court’s decision is based on the following key considerations:

The issuing of a cease and desist order preventing the plaintiff's correspondence (in his capacity as a lawyer) from being quoted verbatim violated the complainant's fundamental right to freedom of expression (Article 5 of the Basic Law). The protection conferred by Article 5.1 of the Basic Law extends to statements of fact provided they can contribute – as in the present case – to the shaping of opinions. § 823.1 and § 1004 of the Civil Code qualify as legal provisions limiting fundamental rights within the meaning of Article 5.2 of the Basic Law. However, when interpreting and applying such provisions the regular courts must give sufficient consideration to the value-defining significance of the fundamental right thus restricted.

The courts' reasoning, that publishing verbatim quotes constituted an interference with the plaintiff's right of personality, already raises considerable constitutional concerns. Insofar as the courts were guided, in this respect, by case-law developed by the civil courts in relation to the so-called "pillory effect", the courts failed to provide comprehensible reasons to this end in the present case. In particular, it is not discernible from the reasoning of the challenged decisions that the conduct of the plaintiff as portrayed by the published quote could indeed result in any serious condemnation by the general public or large parts of it. However, this would have been a necessary element for finding a condemnation that reaches the level of a “pillory effect”. Rather, it already appears doubtful whether disclosing the information, that someone strongly objects to the publication of one’s own picture, can in fact damage the individual’s honour or reputation.

The supplementary considerations provided by the court in the appeal proceedings, namely that the statement in general gave the wrong impression by presenting the plaintiff as someone who reacts to a simple enquiry with a strong threat, also proves untenable. The editorial note does not in any way refer to the wording or the nature of the relevant enquiry, but only informs the reader that the plaintiff had not wished to permit the use of his photo. In particular, the court did not sufficiently take account of the context of the published text in the present case. In this respect, the cout failed to meet the constitutional standards applicable to the interpretation of statements that fall within the scope of protection of Article 5.1 of the Basic Law.

Further objections arise with regard to the regular courts’ weighing of the plaintiff's general right of personality (which the courts believed to be affected) against the complainant's freedom of expression. The courts essentially based their decisions on the assumption that the public interest in obtaining information relating to the statement at issue was insignificant. However, the protection accorded to the freedom of expression is by no means contigent on the existence of a public interest. Rather, the freedom of expression first and foremost guarantees the self-determination of each individual holder of fundamental rights regarding the development of one’s personality in communication with others. This in itself already determines the importance accorded to the freedom of expression, and any weighing of the freedom of expression against the general right of personality must take such importance of the former into account. Recognising a possible public interest in the relevant information on top of this merely serves to further increase the importance accorded to the freedom of expression in the weighing of interests. Accordingly, it raises constitutional concerns that, in the present case, the courts curtailed this standard by according the plaintiff a right to demand cease-and-desist solely on the basis that the plaintiff’s general right of personality was believed to outweigh the public interest in obtaining information.

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Additional Information

ECLI:DE:BVerfG:2010:rk20100218.1bvr247708

Please note that only the German version is authoritative. Translations are generally abriged.