Headnotes (non-official):

1. The general right of personality (Article 2.1 of the Basic Law in conjunction with Article 1.1 of the Basic Law) is affected by statements that can negatively influence the image of a public figure.
2. The general right of personality is limited inter alia by the freedom of expression (first sentence of Art. 5.1 of the Basic Law), which again is limited by the provisions of general laws (Art. 5.2 of the Basic Law).
3. When interpreting a statement, the courts must consider its context in the text or speech as well as other accompanying circumstances.

Summary:

I.
The applicant is a former District Administrator and was until September 2013 a member of the Bavarian Landtag (state parliament). In 2006, she posed for a society magazine, which published the photo series in one of its editions. This took the defendant in the initial proceedings, an online publication, as an opportunity to publish a text on its website, which contains, inter alia, the following passage:
“Let me tell you: you are the most frustrated woman I know. Your hormones are so messed up that you no longer know who is what. Love, desire, orgasm, feminism, reason.
You are a whacko woman, but do not blame your state on us men.”
The applicant claimed a violation of her general right of personality (allgemeines Persönlichkeitsrecht) and requested damages, as well as that the defendant refrain from making certain statements, (inter alia calling her a “whacko woman”). The constitutional complaint challenged the judgment of the Higher Regional Court, which had dismissed her claim.

II.

The Federal Constitutional Court decided that the contested decision violated the applicant’s general right of personality under Article 2.1 in conjunction with Article 1.1 of the Basic Law. It thus reversed and remitted the decision.

The decision is based on the following considerations:

Calling the applicant a “whacko woman” violates her general right of personality. Pursuant to Article 2.1 of the Basic Law, the general right of personality is limited by the constitutional order, including the rights of others, which include the freedom of expression under the first sentence of Article 5.1 of the Basic Law. The courts are called to understand the different interests affected and the extent to which they are impaired. They must give effect to the opposing positions and balance them in a way that does justice to the specific aspects of the individual case at hand.

The Higher Regional Court does not accord sufficient weight to the applicant’s general right of personality. It overlooks the right to personal honour, which is expressly mentioned as a limit in Article 5.2 of the Basic Law.

By requesting from the defendant to refrain from calling her a “whacko woman”, the applicant opposes this statement as a summary of the previous paragraph. In that paragraph, the defendant moves the public debate about the applicant to purely speculative claims about the core of her personality as a private person. It bases this speculation on assessments that relate to the innermost private sphere, without having any factual core.

It is true that they are linked to the applicant’s behaviour, who posed for a society magazine and thus has to accept public discourse about this. The defendant may thus comment on the applicant’s behaviour even in an exaggerated or polemic way.

However, the defendant’s conclusions, which are summarised in calling the applicant a “whacko woman”, are not based in any way in the applicant’s conduct. Rather, the defendant seeks to deliberately discredit the applicant not only as a public figure and because of her behaviour, but denies her in a provocative and intentionally hurting way any claim to respect as a private person. Considering this behaviour, the freedom of expression cannot prevail. It should also be noted that in the case at hand, the text was deliberately written and meant to hurt, and not a spontaneous utterance in connection with an emotional discussion.