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Please note that only the German version of this decision is authoritative. Further information can be found here.
This is an abstract from the CODICES database maintained by the Venice Commission. Please cite as follows: Abstract of the German Federal Constitutional Court’s Order of 13 March 2017, 1 BvR 1438/15.
Abstract
Third Chamber of the First Senate
Order of 13 March 2017
1 BvR 1438/15

Headnotes (not official):

The criminal sanctioning of the dissemination on the Internet of an image defaming a specific person pursuant to § 185 of the Criminal Code does not raise any constitutional objections with regard to the freedom of expression in cases where the regular courts plausibly substantiate that the accused espouses the contents presented by the image and where they reasonably arrive at the result, upon the constitutionally required weighing of interests, that the interests of personal honour outweigh those of the freedom of expression (both affirmed in this case).



Summary:

I.

The applicant claimed a violation of his right to freedom of expression and freedom of the press under the First and Second Sentences of Article 5.1 of the Basic Law. He had been convicted of criminal charges and fined by the Grevesmühlen Local Court (Amtsgericht), and was unsuccessful on appeal on points of law to the Rostock Higher Regional Court (Oberlandesgericht).

 

The applicant had published an article on the Internet under the title “Jamel honours the ‘Heroes of the North”. The article also contained a photograph of a sign situated on the town limits of Jamel, a town in Northern Germany which has made headlines for right-wing extremism. One side of the sign shows a caricature of a married couple that resides in Jamel dancing around a pot of gold, along with the words “The brazen and the lazy get the most money”. The other side of the sign portrays the caricatured heads of the couple framed by the words “The village community salutes the ‘Heroes’ of the North”. The “Heroes”-phrase references a headline published about the couple in several German newspapers, recognising their civic courage in the face of right-wing extremism.

 

II.

The Third Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision.

 

The challenged court decisions remained within the regular courts’ scope of appreciation and do not violate the applicant’s freedom of expression. The regular courts plausibly reasoned that by publishing the image of the sign on the Internet, the applicant espoused the content portrayed therein. The article itself, as published on the Internet, was properly classified as a permissible expression of opinion in the initial proceedings. The photograph of the sign showing caricatures of a couple and labelling them “brazen” and “lazy”, however, must be distinguished from the article. The regular courts, after undertaking the necessary constitutional weighing of interests, came to the unobjectionable conclusion that the interests of personal honour are preponderant in this regard. The text on the sign, as well as the labels “brazen” and “lazy” have no specific political message and serve merely to demean the portrayed persons. The prominent location of the sign at the entrance to the town and the caricature depiction pillory the couple in question and serve to ostracise them from the village community. Given this situational context, and the de-politicised nature of the statement itself, the finding that the interests of personal honour are preponderant is well justifiable and does not violate the applicant’s freedom of expression.

Further information can be found in the CODICES database, as soon as it has been processed.

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Additional Information

ECLI:DE:BVerfG:2017:rk20170313.1bvr143815

Please note that only the German versions are authoritative.