“Stasi dispute case”

HEADNOTE:

Order of the First Senate of 25 October 2005
– 1 BvR 1696/98

If an ambiguous expression of opinion violates the right of personality of another, a right to its future forbearance – in contradistinction to a finding in respect of a statement made in the past, consisting for instance in a punishment order or an order to pay compensation or to recant – is not eliminated solely because it also permits of a variant of interpretation which does not entail an impairment of personality.

Order of the First Senate of 25 October 2005

– 1 BvR 1696/98 –

in the proceedings on the constitutional complaint
of Dr. S.

RULING:

The judgment of the Federal Court of Justice of 16 June 1998 – VI ZR 205/97 – violates the complainant’s fundamental right under Article 2.1 in conjunction with Article 1.1 of the Basic Law (Grundgesetz – GG). It is overturned and the case is referred back to the Federal Court of Justice.

The Federal Republic of Germany is ordered to refund the complainant’s necessary expenses.

GROUNDS:

A.

The constitutional complaint concerns rights to forbearance in respect of the circulation of disparaging factual claims.

I.

During the period of existence of the German Democratic Republic, the complainant was the consistorial president (Konsistorialpräsident) [Translator’s note: consistory (Konsistorium) = chapter of a cathedral in German Evangelical (Protestant) churches] of the Evangelical church in Berlin-Brandenburg, and subsequently Minister-President of the Federal Land (state) Brandenburg. In his capacity as a representative of the church, he maintained contacts from 1969 to 1989 with full-time officials of the Ministry for State Security (Ministerium für Staatssicherheit), which had registered him as an unofficial collaborator, entering the designation “unofficial collaborator Sekretär” (“IM-Sekretär”) in an unofficial collaborator record.

The defendant of the initial proceedings (hereinafter: defendant) is a lawyer and notary, and was at that time deputy parliamentary leader of the Christian Democratic Union (CDU) in the Berlin House of Representatives (Abgeordnetenhaus). He had made the following statement about the complainant in a programme on the Second German Television (Zweites Deutsches Fernsehen) on 2 April 1996 concerning the state of opinion in the run-up to the referendum on the unification of the Federal Länder Berlin and Brandenburg:

The fact that Mr S., who as we all know was in the employ of the state security service for more than 20 years as unofficial collaborator Sekretär, will be afforded the opportunity in 1999 to become Minister-President here in Berlin, also over Berlin, i.e. that I will be his subject, together with others, causes me considerable unease.

The complainant requests forbearance of the statement, and asserts that the factual claim that he had allegedly been in the employ of the state security service for more than twenty years constituted a defamation of his person since he had never worked as an unofficial collaborator in the service of the Ministry for State Security. This factual claim – emphasised by the wording “fact” and “as we all know” – was alleged to be liable to disparage him in public opinion and to make him appear contemptible.

The Regional Court (Landgericht) rejected an action filed by the complainant requesting forbearance, and in essence based its reasoning on the opinion that the statement was covered by the fundamental right to freedom of opinion.

The Higher Regional Court (Oberlandesgericht) overturned the judgment of the Regional Court, and sentenced the defendant on pain of an administrative fine to forbear from circulating or repeating the assertion that the complainant had been “in the employ of the state security service for more than 20 years as unofficial collaborator Secretary”. As grounds, it stated in essence that the defendant had alleged and circulated a fact disparaging the complainant and making him appear contemptible. The impugned statement was said to mean in general usage that someone had collected or acquired information on third parties on behalf of the state security service on the basis of an explicit or implied declaration of undertaking and passed it on to the “employer” for the latter’s benefit.

In accordance with § 823.2 of the Civil Code (Bürgerliches Gesetzbuch – BGB) and § 186 of the Criminal Code (Strafgesetzbuch – StGB), the defendant would allegedly have been obliged to prove the veracity of his assertion. He had not been able to do so. The fact that the complainant had been registered at the Ministry for State Security as “„unofficial collaborator Sekretär” was said not to suffice as proof of being in the employ of the state security service. There was no knowledge of a written declaration of undertaking. The file kept on him by the Ministry for State Security had been destroyed. The Court was also unable to recognise with sufficient certainty on the basis of the other circumstantial evidence cited by the defendant whether the complainant had “gone too far” in his contacts with the Ministry for State Security in an effort to provide humanitarian assistance and expand the church’s scope of action, whilst still remaining a man of the church, or whether he had changed sides and deliberately spied on the church for the Ministry for State Security in order to establish or increase the scope of action of the state leadership of the German Democratic Republic within the church. The statement of the defendant was said also not to be covered by the fundamental right of freedom of opinion or justified in accordance with § 193 of the Criminal Code. It would have been sufficient in order to assert justified political interests to sum up the reports of the allegations with the circumstantial evidence against the complainant, to recall or evaluate them, expressing this as his own opinion. By contrast, over and above the proven facts, the defendant had allegedly not been permitted to circulate assertions which he had also not examined in order to determine their veracity.

In response to the defendant’s appeal on points of law, the Federal Court of Justice overturned the judgment of the Higher Regional Court by virtue of the impugned judgment (Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ) 139, 95) and rejected the complainant’s appeal on points of fact and law against the judgment of the Regional Court. The court of appeal on points of fact and law was said to have wrongly complied with the complainant’s request for forbearance.

The impugned statement was said to contain facts which could be examined as to their correctness by taking evidence. The court of appeal on points of fact and law was however said to have been wrong to interpret the authoritativeness only in one very specific sense, without even discussing other possible interpretations. The reference to activity “in the employ” of the state security service did not necessarily encompass an assertion that the complainant had exercised such an activity for the state security service as his employer on the basis of a declaration of undertaking. Rather, the passage in question could also be freely understood to mean that the complainant named in the files kept by the Ministry for State Security as “unofficial collaborator Sekretär” had provided services to the latter – without having been obliged to do so by a declaration of undertaking – by consciously and deliberately providing to the state security service, in line with its expectations and for whatever motives, information on third parties or specific events in the context of his – uncontestedly intensive – contacts with the latter; in doing so, he had in reality acted as an agent in the knowledge that this information was beneficial, in other words useful, to the state security service. Such an understanding could certainly not be ruled out. If several not mutually exclusive interpretations of the content of a statement were possible, the legal evaluation should be based on the interpretation which is more favourable for the party claimed against for forbearance and which constitutes less of an impediment to the party concerned. In this instance, this was however stated to be the second alternative described.

Also, such an understanding of the passage was however said to be an assertion of factual content the veracity of which was not proven. Nevertheless, this was said not to place the defendant at a disadvantage. An assertion made in a matter of considerable public concern which was not provably slanderous may not be prohibited insofar as the party making the statement may consider it necessary to assert justified interests (with reference to BGHZ 132, 13 (23)). The consequence of the necessary weighing up of interests here was that the interest of the defendant in making the statement prevailed. The requirements linked to a duty to carry out research may not be overstated. Also, no further possibilities had been available to the defendant, after various investigations on the role of the complainant, to investigate substantial new information on the role played by the complainant in his contacts with the state security service.

The permissibility of the statement was also said to be favoured in that it had been made in the political battle of opinion in a question of considerable public interest, and hence the presumption of the permissibility of freedom of speech favoured the defendant. What was more, the complainant himself had participated in the political debate with considerable commitment, and had hence opted to place himself in the limelight of a public debate which from the outset had not evaded discussing the role which he had played during his many years of contact with the state security service. Finally, the defendant had not made his statement without any reference, but could support his contention in that there was also circumstantial evidence against the complainant.

The Federal Court of Justice was alleged not to be prevented from handing down a final ruling in the case by an application to take evidence on the part of the complainant that had been filed firstly in the appeal on points of law proceedings, according to which former Federal Chancellor Helmut Schmidt had asked the complainant during his period of office to contact the state security service of the German Democratic Republic. Apart from the fact that the untruthfulness of the defendant’s concrete assertion could not be proven thereby, such an application to take evidence was not admissible at appeal on points of law. Furthermore, from its point of view the court of appeal on points of fact and law had had no reason to seek additional statements or applications to take evidence from the complainant.

II.

The complainant complains of a violation of the general right of personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law) and of procedural fundamental rights (Article 2.1 in conjunction with Article 20.3 and Article 103.1 of the Basic Law).

The judgment of the Federal Court of Justice is alleged to violate his general right of personality insofar as it is based on a re-interpretation of the defendant’s assertion for which it is alleged that there are no grounds whatsoever. The re-interpretation of “activity in the employ of the state security service”, in providing information which had been beneficial or useful to the state security service, was alleged to be entirely unconnected with the wording and content of the defendant’s assertions. Insofar as the Federal Court of Justice referred to the activity thereby presumed as “action in reality as an agent” or “equally serving as an agent”, this particularly inferred a relationship of superiority or inferiority, or a relationship in which the state security service issued instructions.

The Federal Court of Justice is alleged to effect a reversal of the burden of evidence on the basis of the consideration that it was a matter of considerable public interest. This was said to considerably overstep the freedom of expression of opinion provided by Article 5.1 of the Basic Law. The correctness of the defendant’s assertions has been a matter of dispute between the complainant and the defendant. The investigations that had been carried out had not provided any proof of the correctness of the assertion made by the defendant. Hence, in objective terms one could presume that there was no proof of the correctness of the defendant’s assertions. The presumption rule favouring free expression of opinion mentioned by the Federal Court of Justice was said to be immaterial if research was impossible in practice because the facts had been investigated. If the person expressing the insult wished to make assertions over and above this, he or she bore the risk of provability.

The constitutional complaint further complains of a violation of the right to a hearing in court (Article 103.1 of the Basic Law), in conjunction with a violation of the fundamental rights to a fair trial and of effective legal protection (Article 2.1 in conjunction with Article 20.3 of the Basic Law). The Federal Court of Justice had concluded a reversal of the burden of proof from its re-interpretation of the content of the defendant’s attacks, and had hence proceeded to reject the action. Because of the deviation from the legal opinion of the court of appeal on points of fact and law, it should however have referred the case back in order to afford the trial court the opportunity to concern itself with the case on the basis of the new factual and legal evaluation created by the Federal Court of Justice, in particular to explore new applications to take evidence. This was said to indeed be necessary because an application to take evidence is not admissible in the appeal on points of law proceedings. The handling of the case by the Federal Court of Justice was said to have deprived the complainant of a hearing in court. In particular, the questioning of former Federal Chancellor Helmut Schmidt had not taken place, which he had requested on the assertion that the latter had personally asked the complainant to contact the state security service.

III.

1. The defendant of the initial proceedings considers the statement to be permissible. It is alleged to be an expression of his concern regarding what he considers to be the complainant’s lack of suitability as Minister-President, and to relate to something known to the public. The correctness of a factual claim in accordance with which the complainant had worked for the state security service could allegedly not be refuted and was also said to be confirmed by more recent press reports. Accordingly, indications were found in the documents of the state security service not only of an undefined activity, but indeed of the complainant’s successful recruitment.

2. The V and VI Civil Senates of the Federal Court of Justice made a statement on the constitutional complaint.

The VI Civil Senate pointed out that the weighing up of the freedom of opinion against the general right of personality contained in its ruling had already been the subject of several rulings which were also quoted in the impugned ruling.

The V Civil Senate stated that it considered the complaint of a violation of the right to a hearing in court to be unfounded. As documented by the considerations contained in the judgment, the VI Civil Senate was said to have not exercised the option to refer the case back for a final ascertainment of the facts because it had considered the facts to have been clarified and the application to take evidence to be immaterial. If this were to be correct, and if the complainant did not put forward other facts which he had been barred from submitting by these means, there had been no reason to refer the case back.

B.

The constitutional complaint, which is admissible, is well-founded.

I.

The judgment of the Federal Court of Justice violates the complainant’s general right of personality under Article 2.1 in conjunction with Article 1.1 of the Basic Law.

1. The ruling touches on the protected area of the complainant’s general right of personality.

a) The general right of personality entrenched in Article 2.1 in conjunction with Article 1.1 of the Basic Law supplements the freedom rights provided by the Basic Law, and guarantees the narrower area of privacy and the maintenance of its basic conditions (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 54, 148 (153)). The content of this right is not described in general and final terms. The recognised content includes the right of disposal of the depiction of one’s own person, social recognition, as well as personal honour (see BVerfGE 54, 148 (153-154); 99, 185 (193)). A major guarantee is constituted by protection against statements which are suited to impair the reputation of the person, in particular the person’s public standing. The general right of personality protects the person in particular against falsifying or distorting depictions which are of not entirely inconsiderable significance for the development of personality (see BVerfGE 97, 125 (148-149); 99, 185 (193-194)).

b) The impact of the protection of the right of personality provided by the fundamental rights enshrined in Article 2.1 in conjunction with Article 1.1 of the Basic Law is that the state must protect the individual against endangerment of this right by third parties. In applying the civil law provisions serving to render such protection, the courts must observe the fundamental right standards. If they fail to do so, this constitutes not only a violation of objective constitutional law, but also of the fundamental rights of the person concerned. Court rulings permitting statements relevant to personality, against which the person concerned defends themselves alleging that they are incorrect, thus touch on the general right of personality (see BVerfGE 99, 185 (194-195).

This is the case at hand. The Federal Court of Justice denies the complainant’s right to forbearance of the statement alleging that he had been in the employ of the state security service for more than twenty years as “unofficial collaborator Sekretär”. The statement is amenable to reduce the complainant’s social and political standing. The judgment of the Federal Court of Justice hence touches on his general right of personality.

2. The complainant’s general right of personality is violated by the judgment of the Federal Court of Justice. The statement of the defendant, which impairs the complainant’s interests, is not covered by the fundamental right to freedom of opinion under Article 5.1 sentence 1 of the Basic Law.

a) The civil law basis for the implementation of the general right of personality by means of a right to forbearance of statements which constitute an impairment of interests is constituted by § 1004.1 and § 823.2 of the Civil Code in conjunction with § 186 of the Criminal Code. By contrast, the interests of freedom of opinion are above all expressed in § 193 of the Criminal Code, which rules out conviction because of statements made in defence of justified interests which are in violation of honour, and which is also applied in civil law via § 823.2 of the Civil Code, otherwise according to its legal concept (see BVerfGE 99, 185 (195-196)). These provisions take into account the fact that the general right of personality is not guaranteed without reservation. In accordance with Article 2.1 of the Basic Law, it is restricted by the constitutional order, including by the rights of third parties. These rights include freedom of expression of opinion under Article 5.1 sentence 1 of the Basic Law. This too is not guaranteed without reservation. In accordance with Article 5.2 of the Basic Law, has its limits amongst other things in the general statutes and in the right to personal honour.

In interpreting and applying the civil law provisions, the courts with jurisdiction must accommodate the fundamental rights in question in such a manner as to guide interpretation, so that their value-defining content is also maintained at the level of the application of the law (see BVerfGE 7, 198 (205-206); 85, 1, (13); established case-law). The civil courts understand the general right of personality in a manner which is unobjectionable in constitutional terms as an open fact in which the determination of an unlawful violation is conditional on a proper assessment (see BGHZ 45, 296 (307-308); 50, 133 (143-144); 73, 120 (124-125)). In cases of the kind at hand, a balance is to be achieved between, on the one hand, the seriousness of the impairment of personality by virtue of the statement and, on the other, the impairment of freedom of opinion caused because of prohibition of the statement. The fundamental rights requirements are to be taken into account in the course of consideration. A number of examination-related aspects and preferential rules will be relevant here which have been developed in the case-law to make it possible to maintain to the greatest possible extent the mutual fundamental right positions and interests in judging and ruling on cases of expression of opinion (see BVerfGE 61, 1 (8 et seq.); 85, 1 (14 et seq.); 93, 266 (293 et seq.); 99, 185 (196 et seq.)). The result of this weighing up cannot be predicted in general, abstract terms because it depends on the circumstances of the individual case.

b) It is of vital importance to the examination of a violation of fundamental rights to cover the content of the statement, in particular to clarify the manner in which it impairs the complainant’s right of personality by its objective meaning. Neither the subjective intention of the party making the statement, nor the subjective understanding of the party concerned by the statement, is relevant to the interpretation, but rather the meaning it assumes in the eyes of an unbiased, average circumspect public (see BVerfGE 93, 266 (295); BGHZ 95, 212 (215); 132, 13 (19)). Far-fetched interpretations are to be eliminated (see BVerfGE 93, 266 (296)). If the meaning is unambiguous using this standard as a basis, it is to be used as a basis when continuing the examination. If it is however revealed that an unbiased, average circumspect public perceives the statement to be ambiguous, or if considerable sections of the public understand the content in different ways, one must presume the content to be ambiguous when continuing the examination.

The Federal Court of Justice has presumed ambiguity in the case at hand. It has however based its judgment on the standards developed by the Federal Constitutional Court (Bundesverfassungsgericht) to examine criminal and civil law sanctions against ambiguous expressions of opinion which have been made in the past, without taking into account that they are not applicable to the same degree to rights to forbearance of future statements. Hence, the starting point of the legal evaluation is already inappropriate (aa). What is more, the assessment carried out on this basis by the Federal Court of Justice of fails to comply with the constitutional requirements (bb).

aa) (1) In examining criminal or civil law sanctions because of expressions of opinion which were made in the past, the Federal Constitutional Court takes as a basis the principle that freedom of opinion is violated if in the case of ambiguous statements a court bases its considerations on the meaning leading to a conviction, without having previously ruled out with coherent reasoning meanings which cannot justify the sanction (see BVerfGE 82, 43 (52); 93, 266 (295 et seq.); 94, 1 (9)). If the wording of the statement, or the circumstances under which it was made, permit an interpretation which does not violate the right of personality, a criminal sentence or a civil court judgment imposing a sentence to provide compensation or to recant or correct statements is in violation of Article 5.1 sentence 1 of the Basic Law in accordance with this case-law (see BVerfGE 43, 130 (136); 93, 266 (296) – on criminal sentencing –; BVerfGE 85, 1 (18); 86, 1 (11-12) – on findings handed down under civil law). If the person making the statement had to fear imposition of state sanctions because of an interpretation which mistook the intended meaning, a negative impact on the general exercise of the fundamental right of freedom of opinion would take place over and above the impairment of individual freedom of opinion. Because of its restraining impact, a state sanction could in such an instance have a major effect on freedom of speech, freedom of information and free formation of opinion, and hence impact the substance of freedom of opinion (see BVerfGE 43, 130 (136) 54, 129 (136) 94, 1 (9)).

(2) Court rulings on forbearance of future statements do not however give rise to such a need for protection of the individual exercise of fundamental rights and a well-functioning opinion-forming process. It should be taken into account in this instance, in the context of the legal attribution of freedom of opinion and protection of personality, that the party making the statement also has the possibility to express himself or herself clearly in future, and hence to clarify the content of the statement on which the legal examination of a violation of the right of personality is to be based. It is this content to which the examination criteria and standards for assessment are applied which were developed in the case-law for the weighing up of impairments of personality by value judgments or factual claims. If the statement is a factual claim, it is decisive whether it is possible to prove its veracity. It will be material in the case of value judgments whether they are to be regarded as abuse, a formal insult or a violation of human dignity, and hence should cease, or if this is not the case, whether they prevail over the protection of personality when weighing up these interests (see BVerfGE 90, 241 (248-249); 93, 266 (293-294)).

If the person making the statement is unwilling to clearly define its content, there is no constitutionally viable reason to refrain from sentencing to forbear merely because the statement permits of several variants of interpretation, including such which do not lead to a violation of personality, or only to a slighter one. Rather, all variants of interpretation which are not far-fetched and which impair this right are to be taken as a basis when weighing up against the right of personality. The party making the statement is free to make a clear statement in future and – if a variant of interpretation which does not constitute a violation of the right of personality does not correspond to the meaning intended by him or her – to clarify how he or she understands his or her statement. In accordance with the case-law, the person making the statement can avoid a civil court sentence for forbearance if he or she submits a serious statement with adequate content, undertaking not to repeat the ambiguous statement from which content constituting a violation of the right of personality can be derived, or to only do so with suitable clarifications (in general terms on the aversion of a sentence of forbearance see BGHZ 14, 163 (167); 78, 9 (20); BGH, Neue Juristische Wochenschrift – NJW 1994, 1281 (1283); Burkhardt, in: Wenzel, Das Recht der Wort- und Bildberichterstattung, 5th ed. 2003, Chapter 12 marginal nos. 20-21).

In contradistinction to criminal or civil law sanctions which subsequently link to a statement that has already been made, an effect of restraining which impairs the process of free expression and formation of opinion cannot be anticipated to ensue by virtue of the imposition of such requirements on the party making the statement. His or her right of self-determination regarding the content of the statement is maintained. At the same time, the protection of the right of personality of the party which is disadvantageously affected is guaranteed. The party making the statement can pursue his or her interest in the statements in free self-determination in a manner not violating the right of personality. If he or she does not consider himself or herself able to do so, he or she encounters the restriction placed on the freedom of expression of opinion lying in the protection of personality.

(3) The Federal Court of Justice has compared the variant of interpretation used as a basis by the complainant and by the court of appeal on points of fact and law to another, and has carried out the legal evaluation of the violation of personality exclusively on that basis. Hence, it did not orientate its ruling in line with the principles material to rights to forbearance.

The complainant and the court of appeal on points of fact and law understand the defendant’s statement to constitute an assertion that he [the complainant] had worked on behalf of the state security service on the basis of an explicit or implied declaration of undertaking, and that he had passed on information concerning third parties to the latter as an “employer”, for the benefit of the service. The Federal Court of Justice considers this interpretation to be justified, but presumed as a further variant of interpretation that the statement encompassed the assertion that the complainant had provided services to the state security service by delivering information on third parties or specific events in line with its expectations, using his contacts in the state security service, in the knowledge that this information was beneficial to the state security service, in other words useful, had in reality acted as an agent. Certainly, such an understanding of the statement could not be ruled out.

In application of the case-law developed by the Federal Constitutional Court for criminal and civil law sanctions, the Federal Court of Justice also took as a basis for its considerations this variant of interpretation for the right to forbearance forming the subject-matter of the dispute at hand. In doing so, it failed to take into consideration the difference between civil law rights to forbearance of future statements and criminal or civil law sanctions for a statement made in the past. The examination should have been based on the variant of interpretation more prominently violating the right of personality. The constitutional requirements that are material here have not been met, simply because of the incorrectly selected starting point.

bb) The incorrect selection of the starting point of the examination has acted to the detriment of the complainant in terms of the consideration of the legal interests affected. This selection, moreover, does not in every aspect comply with the constitutional requirements.

(1) The statement alleging that the complainant had been in the employ of the state security service as “unofficial collaborator Sekretär” is – as also found by the Federal Court of Justice – a grievous violation of personality. Since it is a factual claim, it is amenable to the documentation of its veracity.

In accordance with the nonconstitutional case-law, it is the party making the assertion which bears the burden of proof as to the correctness of a factual claim which violates the right of personality (see BGHZ 132, 13 (23)). This also corresponds to the legal concept contained in § 186 of the Criminal Code, the application of which is constitutionally unobjectionable in the law on statements. There is as a rule no reason in justification of the circulation of untruthful factual claims (see BVerfGE 61, 1 (8); 94, 1 (8); 99, 185 (197)). In principle, hence, when it comes to factual claims which are deliberately untruthful or which are proven to be incorrect, freedom of opinion loses ground to the right of personality (see BVerfGE 85, 1 (17)).

According to the findings of the Higher Regional Court, it is impossible to ascertain the veracity or lack of it as to the variant of interpretation on which it bases its considerations, which is less favourable to the defendant. In the view of the Federal Court of Justice, the veracity of the interpretation of the statement which is more favourable for the defendant is equally unproven. A “non liquet” was therefore to be presumed as per each variant of interpretation.

With regard to the circulation of factual claims the veracity of which cannot be conclusively ascertained, the case-law of the civil courts examines the adjustment of the requirements of freedom of opinion against the interests of the protection of personality by examining whether the party making the statement has met the requirements to be made, when circulating factual claims the veracity of which has not been documented, as to justification by asserting rightful interests (§ 193 of the Criminal Code) (see Federal Court of Justice (BGH), Neue Juristische Wochenschrift 1987, pp. 2225-2226 with further references). Certainly in cases related to a matter which is of major concern to the public, it is impossible in accordance with this case-law to prohibit a possibly untruthful assertion being made by a party which makes or circulates it insofar as he or she has made sufficiently careful research as to its veracity prior to making and circulating his or her assertion (see BGHZ 132, 13 (23-24)).

There are no constitutional objections against the development of such obligations insofar as the scope of these duties of care is measured by the nonconstitutional courts in compliance with the requirements contained in the Basic Law (see BVerfGE 99, 185 (198)). The nonconstitutional courts may hence, firstly, not define requirements as to the duty of truthfulness in the interest of freedom of opinion which reduce the willingness to exercise the fundamental right, and hence may reduce freedom of opinion as a whole (see BVerfGE 54, 208 (219-220); 85, 1 (17)). They have secondly, however, also to take into account that the duty of truthfulness is an expression of the duty of protection emerging from the general right of personality (see BVerfGE 12, 113 (130); 99, 185 (198)). If there is a grievous encroachment on the right of personality, this gives rise to strict requirements when it comes to compliance with the duty of care (see BGHZ 95, 212 (220); 132, 13 (24)). These are breached if the party making the statement selectively and without this being recognisable to the public solely takes as a basis the indications which are disadvantageous to the party concerned, and leaves unmentioned aspects which speak against the correctness of his or her assertion (see BVerfGE 12, 113 (130-131); BGHZ 31, 308 (318)).

(2) In measuring the scope of the defendant’s duty of truthfulness and care, the Federal Court of Justice did not even meet these requirements of the general right of personality from its own starting point in terms of the interpretation of the statement in question which constituted a less intensive encroachment. They are certainly not met in the variant of interpretation material to the case in hand.

The Federal Court of Justice wrongly bases its considerations on the case-law of the Federal Constitutional Court insofar as it opines that the complainant must already accept the unproven assertion for the future because it refers to a statement made on a matter of considerable concern to the public. The requirements of care referred to above must also be adhered to with such statements in order to ensure the protection of fundamental rights. In the case at hand, these are already not met by the defendant not being able to carry out research over and above the state of knowledge already available in the public domain.

The Federal Constitutional Court has recognised that the extended burden of explanation incumbent on the party making the statement in addition to his or her duty of truthfulness and care can be satisfied in the case of slanderous assertions by referring to uncontradicted press reports (see BVerfGE 85, 1 (21 et seq.)). However, this only applies if these press reports are amenable to support the asserted assertion (see BVerfGE 99, 185 (199)). If the party making the statement is aware that the correctness of the circulated assertion is called into question, it cannot base its statements on such reports (see BVerfG, 1st Chamber of the First Senate, Order of 23 February 2000 – 1 BvR 456/95 –, NJW-RR (Neue Juristische Wochenschrift – Rechtsprechungs-Report Zivilrecht) 2000, p. 1209 (1211)). The duty of truthfulness hence goes beyond the obligation to exhaust the possibilities for research open to the party making the statement. Should it be the case that assertions circulated by him or her are not covered by the result of his or her research, the party making the statement must make this apparent. He or she may not state as true a fact which they know to be disputed or subject to doubt (see BVerfGE 12, 113 (130-131); BVerfG, 1st Chamber of the First Senate, Order of 23 February 2000 – 1 BvR 456/95 –, NJW-RR 2000, p. 1209 (1211); BGHZ 132, 13 (24)).

In the case at hand, the nature of the complainant’s work in contact with the state security service was disputable even in terms of the variant of interpretation found by the Federal Court of Justice, which considered less of an encroachment. The reports on this which were also circulated by public agencies were as controversial as the media reporting. It was not the dissemination of a concrete factual claim on the basis of a report that was circulated in the media without contradiction which was to be adjudicated, but the selective portrayal solely of a specific view of the known facts as correct. There was however dispute as to whether they were correct.

In the interest of the protection of the right of personality of the party concerned, it is to be required of the party making the statement, if it takes on board a specific view of known facts which violates the right of personality, that it then states that this view is disputed and that the facts have not been truly clarified. If the truth has not been established, and if it cannot be ascertained with sufficient care, the party making the statement must certainly practice care in passing on the state of knowledge. The defendant was also not released from this obligation by the consideration stated by the Federal Court of Justice that the complainant himself had allegedly opted to go into the public limelight, and that the defendant had not for instance made his assertion with no evidential foundation whatever, as is shown by the known indications of the complainant’s contacts with the state security service. It does not constitute an overstatement of the duty of truthfulness incumbent on the defendant which is incompatible with the presumption in favour of the permissibility of the latter’s freedom of speech that, if he wishes to make another statement in the future, he must reveal the lack of a secure factual basis for the assertion which he made.

II.

The further complaints of the complainant are unfounded.

The rights to a hearing in court in accordance with the law (Article 103.1 of the Basic Law) and to effective legal protection and to a fair trial (Article 2.1 in conjunction with Article 20.3 of the Basic Law) have not been violated by the Federal Court of Justice not having referred the case back to the trial court in order to afford the complainant the opportunity to file applications to take evidence on the interpretation of the statement taken as a basis by the Federal Court of Justice in its judgment. In particular, the complainant’s procedural fundamental rights were not violated by there being no questioning of former Federal Chancellor Helmut Schmidt on the assertion that the latter had personally asked the complainant to contact the state security service. It is already not apparent that this or a similar application to take evidence can lead to sufficient clarification of the relationship between the state security service and the complainant.

III.

It cannot be ruled out that the Federal Court of Justice would have reached a different conclusion if it had used as a basis for its examination the interpretation of the statement which constituted a more serious encroachment on the complainant, and had placed the requirements on the defendant’s duty of truthfulness as were required to protect the complainant’s right of personality. The impugned judgment is hence to be overturned and the case referred back to the Federal Court of Justice (§ 95.2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG)).

The costs ruling is based on § 34a.2 of the Federal Constitutional Court Act.