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Freedom of expression also protects emotionalised statements

Press Release No. 21/2016 of 29 April 2016

Order of 10 March 2016
1 BvR 2844/13

Freedom of expression also encompasses the freedom to portray facts in a subjective and even emotionalised way, particularly as a reaction to an immediately preceding attack on one’s honour that was also made in an emotionalising way. Such was the decision of the Third Chamber of the First Senate of the Federal Constitutional Court in an order published today. It thereby granted the constitutional complaint of a complainant challenging a cease-and-desist judgment by the civil courts.

Facts of the Case:

The plaintiff in the initial proceedings had been in a relationship with the complainant until in early 2010 she filed criminal charges against him for rape and causing bodily harm by dangerous means. The subsequent criminal proceedings before the Regional Court (Landgericht) saw the plaintiff acquitted of all charges as it could not be proven he had committed a crime. On the day of the acquittal as well as on the following day, plaintiff’s lawyers made television statements concerning the complainant. Moreover, approximately one week after the acquitting judgment had been rendered, an interview was published in which the plaintiff commented on the complainant. Thereupon, the complainant also gave an interview, which appeared one week after the interview with the plaintiff had been published.

In the time after these incidents, the plaintiff demanded that the complainant cease and desist from making several statements she had made in the course of this interview. The Regional Court rendered a judgment against the complainant granting the plaintiff’s action. Her appeal on questions of fact and law (Berufung) before the Higher Regional Court (Oberlandesgericht) as well as her complaint against denial of leave to appeal (Nichtzulassungsbeschwerde) before the Federal Court of Justice (Bundesgerichtshof) met with no success.

The complainant’s constitutional complaint challenges all three decisions and essentially claims that her right to free expression has been violated (Art. 5 sec. 1 sentence 1 of the Basic Law [Grundgesetz – GG]).

Key Considerations of the Chamber:

The challenged decisions violate the complainant’s right to free expression under Art. 5 sec. 1 sentence 1 GG.

1. The judgments by the Regional Court and the Higher Regional Court touch upon the guarantee of free expression to which the complainant is entitled. There are no constitutional objections to how the courts classified the statements as judgmental statements and statements of fact. The statements of fact have not been proven to be incorrect. The criminal proceedings failed to establish whether the allegations of the complainant or those of the plaintiff are true. Therefore, given that the plaintiff has been acquitted of all charges, the different perceptions constitute subjective evaluations of events that will necessarily remain uncertain. These evaluations must thus be treated not as statements of fact but as opinions.

2. The challenged decisions violate the complainant’s freedom of expression. Prohibiting the complainant from making the challenged statements transcends the boundaries of the regular courts’ margin of assessment.

a) The fundamental right to free expression is the subjective freedom to directly express one’s human personality and as such a basic human right. Inter alia, it encompasses the freedom to publicly articulate personal perceptions of injustice in a subjective and emotional way. Particularly if one’s statement was directly preceded by an attack on one’s honour, a response of a similar nature and effect may be justified. Whoever has provided grounds for a negative judgment in the public exchange of opinions must accept a harsh reaction even if it diminishes his or her personal reputation.

b) The challenged decisions do not satisfy these constitutional standards. The courts correctly took into account both the substantial public interest in obtaining information as well as the acquittal – the acquittal having the effect that the grave allegations that were the subject of the criminal proceedings may not be repeated indefinitely. They were also right to consider the extent to which the statements related to public affairs.

However, by taking the view that the complainant should restrict herself to an objective rendition of the essential facts and by basing this on the public interest in obtaining information the courts fail to recognise that Art. 5 sec. 1 sentence 1 GG protects the freedom to judge events in a subjective and even emotionalised manner irrespective of such a public interest. Furthermore, this view overlooks that there is a public interest in having a discussion on the consequences and hardships, from the perspective of potential victims, of criminal procedure that complies with the rule of law. When performing the balancing act, the courts should also have taken into account as mitigating circumstances on the part of the complainant that she had made the statements in the direct aftermath of the (not yet final) acquittal and had merely repeated circumstances that the public had already been aware of due to the extensive media coverage of the criminal proceedings. What is more, the courts did not adequately consider the conduct of the plaintiff before the complainant’s interview. The complainant has a “right to counter-attack”, which is not limited to an objective rebuttal corresponding to the plaintiff’s interview, as the statements made by the plaintiff and his lawyers were not objective but emotionalising, as well. Since the plaintiff made public statements in such a manner, he must accept that the complainant responds in kind.