Summary:

I.

The constitutional complaint is directed against a judgment of a civil court which prohibits the applicant from making an utterance. The applicant submits that its fundamental right to freedom of expression is violated.

The applicant and defendant in the original proceedings distributes the magazine Tacheles by email at irregular intervals.

In May 2009, the plaintiff in the original proceedings, Focus Magazin Verlag GmbH, published a cover story on the subject of implantology in its magazine Focus. The title page read: “Big Focus list of doctors – 115 recommended specialists”. This list was printed in the article. The list included the dentist Mr. B., who is also the Vice-President of the Bavarian Land (State) Medical Chamber. The list was the result of a study which involved, among other procedures, a questionnaire sent to dentists.

In June 2009, the magazine Tacheles discussed the Focus list of doctors. The following is a quotation of part of the article there:

“Vice-President of Bavarian Land Medical Chamber involved in advertising affair

The Vice-President of the Bavarian Land Medical Chamber, who is also the Chairman of an implantologists’ association, is included in a Focus list of what are claimed to be the 115 best implantologists in Germany. The editorial department presumably telephoned a large number of dentists in advance and offered them a place on this list, subject to conditions of some sort. The Vice-President claims that his participation in the whole action was agreed in advance with the Federal Chamber of Dentists. The president of the Federal Chamber of Dentists now denies this, as follows: ‘… the Federal Chamber of Dentists has nothing to do with this except that it explained certain “professional titles” and terms to Focus, or referred Focus to relevant internet sites. In this connection the Federal Chamber of Dentists was not aware that Focus was planning the article which has now been published.’ … We think: an eminent representative of his profession who apparently places his own financial interests and the interests of his professional association above the interests of the Bavarian dentists he represents should be asked to resign.”

The plaintiff is of the opinion that this article claims that a financial payment was the condition for being included in the list of doctors. It submits that such a claim violates its right of personality as an enterprise. It seeks an order that the defendant desists from making the following statement: “The editorial department presumably telephoned a large number of dentists in advance and offered them a place on this list, subject to conditions of some sort.”

Passau Regional Court (Landgericht) dismissed the action. In response to the plaintiff’s appeal, the Higher Regional Court (Oberlandesgericht) reversed the judgment of the Regional Court and ordered the applicant to desist from making the statement in question. The Higher Regional Court refused leave for further appeal.

II.

The constitutional complaint is clearly well-founded. The challenged decision of the Higher Regional Court violates the applicant’s fundamental right of free expression under sentence 1 of Article 5.1 of the Basic Law.

1. The fundamental right of freedom of expression gives everyone the right to freely express and to disseminate his or her opinion in words, writing and images; it does not expressly distinguish between a value judgement and an allegation of fact. Allegations of fact are characterised by the objective relationship between the statement and reality and are accessible to examination using methods of evidence. Opinions, in contrast, are characterised by the element of taking a position, of holding a view or of opining.

The allegation of a fact is within the area of protection of freedom of expression insofar as it is a condition for the formation of opinions. The protection of freedom of expression for allegations of fact therefore only ends where they cannot contribute to the constitutionally required formation of opinion. The Federal Constitutional Court therefore proceeds on the assumption that an allegation of fact which is proved to be false or is made in the awareness that it is false is not covered by the protection of sentence 1 of Article 5.1 of the Basic Law. True statements must usually be permitted, even if they are detrimental to the person affected. This also applies to statements in which elements of fact and elements of valuation are intermingled. In the weighing of interests, weight attaches to the correctness of the content of the allegation of fact on which the value judgement is based. The meaning and scope of freedom of expression are misunderstood if an utterance is incorrectly categorised as an allegation of fact, an utterance defamatory per se or abusive criticism, with the result that it does not enjoy the protection of the fundamental right to the same degree as utterances which are to be regarded as value judgements without an insulting or abusive character.

A crucial factor in the interpretation of an utterance is the meaning it has as understood by an unprejudiced and prudent public. The assessment of this must always commence from the wording of the utterance. But its meaning is also determined by the linguistic context in which the disputed utterance stands and from recognisable concomitant circumstances.

The non-constitutional courts’ classification of an utterance as a value judgement or an allegation of fact is reviewed by the Federal Constitutional Court by reason of its importance for the extent of protection of the fundamental right and in order to weigh it against conflicting legal interests.

2. There are well-founded constitutional objections to the Higher Regional Court holding that the text passage in dispute is not within the area of protection of freedom of expression.

The Higher Regional Court restricts its grounds of judgment to the question of the truth contained in the statement as to whether the Focus editorial department itself or an agency telephoned dentists. This does not do justice to the legal dispute. For the subject of the proceedings is the question as to whether the right of personality of Focus Magazin Verlag GmbH is violated by the applicant claiming that it offered places in the list for money. The Higher Regional Court should have examined whether it is at all possible to derive such a statement from the text and, if this is the case, whether this is based on an allegation of fact or on a value judgement. The court should also have considered the overall statement of the article (criticism of the Vice-President of the Bavarian Land Chamber of Dentists) and in this connection taken account of the concern of the magazine Tacheles(evaluation of facts with reference to the work of dentists) and the intention of the challenged utterance (criticism of the composition of the list of doctors). At all events, it is not clear on the face of it that the identity of the person making the telephone call is of decisive importance for the interpretation of the challenged utterance if there is the required overall consideration. Insofar as the Higher Regional Court regards as crucial the question as to whether the editorial department itself or an agency made the telephone calls, it should consequently set out why the statement challenged by the plaintiff follows from this and why this is a violation of the plaintiff’s right of personality. In this connection, in any case, there can at most be a question only of a violation of its right of personality as an enterprise. But no reflection of any of this can be found in the decision of the Higher Regional Court.

3. The particular weight of the violation of a fundamental right is indicated by the failure to recognise the protection granted by the freedom of expression.

4. The challenged decision is based on the constitutional errors set out above. It is not out of the question that the Higher Regional Court will reach a different decision in the matter if it considers the case again.