Bundesverfassungsgericht

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Clarification of constitutional standards applying to criminal convictions for derogatory statements

Press Release No. 49/2020 of 19 June 2020

Orders of 19 May 2020 - 1 BvR 2459/19, 1 BvR 2397/19, 1 BvR 1094/19, 1 BvR 362/18

In decisions published today, the Second Chamber of the First Senate of the Federal Constitutional Court ruled on four constitutional complaints challenging criminal convictions for insult. Two of the constitutional complaints were not admitted for decision, while the other two were successful.

In these decisions, the Chamber summarised and clarified the Federal Constitutional Court’s case-law on the conflict between freedom of expression and the right of personality in the context of derogatory statements. The Chamber confirmed that the assessment of whether such a statement is unlawful and whether it is a punishable offence pursuant to §§ 185, 193 of the Criminal Code (Strafgesetzbuch – StGB) is generally determined by a balancing of the conflicting fundamental rights interests, which requires that the courts examine the specific circumstances and the meaning of the statement in question. It summarised the fundamental criteria that may be significant in the context of such a balancing. The Chamber also reiterated that the courts can only refrain from balancing conflicting interests in exceptional circumstances and under narrowly defined conditions: this concerns – as specifically defined by constitutional law – cases of calumny (Schmähkritik), formal invective (Formalbeleidigung) or assaults on human dignity. The Chamber clarified the special requirements applicable to such cases and emphasised that the criminal courts must clearly indicate that these requirements are met and provide substantive reasoning for this finding. However, the Chamber highlighted that in cases where the courts find that these exceptions do not apply, particularly that a statement does not amount to calumny, the outcome of the balancing is not predetermined.

Applying these standards, the Chamber held that in two of the proceedings the balancing undertaken by the criminal courts, which concluded that the adverse effects on the right of personality outweighed freedom of expression, is not objectionable under constitutional law. By contrast, the balancing undertaken in the other two proceedings does not satisfy the constitutional requirements, even when considering the margin of appreciation afforded to ordinary courts, since it cannot be ascertained that the courts sufficiently examined the specific circumstances in which the statements were made.

Facts of the case:

1. Proceedings 1 BvR 2397/19 concern statements made by the complainant on his online blog. In this decision, the Chamber also summarised the relevant standards applicable to the other proceedings. Following a break-up with his former partner in 2002, the complainant was involved in several legal disputes before various Bavarian courts regarding the right to contact with the couple’s daughter; since 2012 he had been denied any contact to her. When an appellate court ruled against him in 2016, he posted a further three entries on his blog. In these blog posts, he named the judges involved in the decision alongside several other individuals, posted photos of them online and repeatedly called them “antisocial judicial criminals”, “provincial criminals” and “child estrangers”, accusing them of being behind a cover-up of crimes committed in office. He claimed that they had followed orders given by the President of the Higher Regional Court, whom he also mentioned by name, and had clearly and severely misapplied the law. The criminal court convicted the complainant of insult and sentenced him to pay a fine. It held that the complainant’s statements did not amount to calumny given the factual connection to the appellate court’s decision and the complainant’s difficult emotional situation. However, it found that the protection of personal honour prevailed in a balancing of the conflicting fundamental rights interests. The Chamber of the Federal Constitutional Court found the decision to be constitutional.

2. Proceedings 1 BvR 2459/19 concern statements made by the complainant in an application in administrative court proceedings. The Aalen Public Library had asked that the complainant himself fill in a form to order a book, following guidance by the city’s legal department. This was because the complainant had previously refused to pay the fee for an inter-library loan, claiming that he had ordered a different book. The head of the city’s legal department had previously reported the complainant to the police in relation to another matter and the complainant had been charged with forgery of documents. In these proceedings, he had filed a motion requesting a psychiatric assessment as to the mental state of the head of the legal department. Before the court had decided on this motion, the complainant brought an action before the administrative court in relation to the dispute with the public library. In his application, he stated that “considering the involvement of the head of the legal department R., who shows a firm willingness rooted in her personality to commit serious criminal acts and whose mental anomalies are the subject matter of court proceedings, which also encompass an assessment of her insanity”, he reserved the right “to request that an adequate fine be imposed on her”. Based on this statement, the criminal court convicted the complainant of insult and sentenced him to pay a fine. It did not qualify the statement as calumny, given that it was not devoid of any connection to the facts. However, according to the court, the defendant’s right of personality prevailed in the required balancing of interests. The Chamber found this decision to be constitutional, too.

Proceedings 1 BvR 362/18 concern statements made by the complainant in a complaint about the conduct of a public servant (Dienstaufsichtsbeschwerde). In 2015, the complainant, who is a lawyer, represented an animal welfare organisation in a process to obtain a permit [to handle animals] from a veterinary and food inspection agency. The permit was granted to the organisation. The complainant subsequently filed a complaint about the conduct of the responsible department head, claiming that the agency had displayed an incredible lack of substantive knowledge, that it had been very slow to handle requests and had deliberately delayed the process. He described incidents that he considered to be objectionable and stated that the expenses incurred by the organisation he represented still had to be reimbursed. According to the complainant, the agency had formally acknowledged these expenses, yet it appeared as if the responsible department head was unwilling to reimburse them, as he constantly set new requirements for reimbursement. The complainant further stated that “we consider his conduct to evidently be personally malevolent, malicious, abusive of his office and generally antisocial towards us”. The criminal court convicted the complainant of insult and sentenced him to pay a fine. It argued that the use of the words “personally”, “malicious” and “antisocial” indicated that the complainant merely wanted to discredit the department head, who was specifically named by him, and that a specific connection to the factual subject matter was not ascertainable. The Chamber found that this amounted to a violation of freedom of expression.

Proceedings 1 BvR 1094/19 concern statements made by the complainant during an assessment of income tax. In the course of the proceedings, which concerned the tax deductibility of the costs for court proceedings challenging the public broadcasting fee, the complainant received a circular from the Finance Minister of North-Rhine Westphalia. The circular stated that taxes are “not fun, but they do make sense. Public services, which we have all come to rely on and like to use, are not free”. Following this, the complainant sent another letter to the tax authorities, which mainly concerned the question of whether the costs for court proceedings challenging the public broadcasting fee were tax-deductible. He closed his letter by saying that there would be no point in lodging further complaints against public servants: “As long as a left-wing failure dabbles as comrade finance minister in Düsseldorf, the tax authorities will at best regard fundamental rights and citizens’ rights as non-binding recommendations, but will generally treat them as an editorial error on the part of the legislator.” Based on this statement, the criminal court convicted the complainant of insult and sentenced him to pay a fine. It held that the complainant had crossed the boundary into an attack on the Finance Minister’s honour and personally disparaged him. The court stated that it did recognise that freedom of expression was a legal interest of high standing and that persons in the public eye had to tolerate severe criticism. However, just like any other citizen, they were afforded protection where an attack crossed the boundary into their personal domain. The Chamber found that in this case, too, the court’s decision amounted to a violation of freedom of expression.

Key considerations of the Chamber: 

I. In proceedings 1 BvR 2397/19, the Chamber summarised the Federal Constitutional Court’s case-law on the requirements set by the fundamental right to freedom of expression in relation to criminal convictions for derogatory statements.

1. Art. 5(1) first sentence of the Basic Law (Grundgesetz – GG) affords everyone the right to freely express and disseminate their opinions in speech, writing and pictures, even in a polemical or hurtful manner. Therefore, criminal convictions for insult (§ 185 StGB) interfere with the fundamental right to freedom of expression. This is why the application of this criminal law provision requires that the meaning of the statement in question be determined in a manner that satisfies the standards set by freedom of expression; on that basis, the courts must then generally balance the weight of the adverse effects on personal honour against the weight of the adverse effects on freedom of expression. In this context, the courts must comprehensively examine the specific circumstances of the case and the situation in which the statement in question was made. Thus, a derogatory statement only qualifies as criminal insult fitting the constituent elements of § 185 StGB and amounting to a punishable offence (§ 193 StGB) if, in the specific situation, the personal honour of the affected person is of greater weight than the freedom of expression of the person making the statement.

a) The outcome of the balancing to be undertaken by the ordinary courts is not predetermined under constitutional law. The Federal Constitutional Court only reviews whether the courts, within their margin of appreciation, identified and gave sufficient consideration to the factors relevant for the balancing. The Chamber listed important factors for the balancing that may have to be taken into account depending on the specific situation. According to the Chamber, it is crucial that the courts determine the specific situation in which the statement was made and sufficiently appreciate it in light of the affected fundamental rights, its emotional circumstances and in consideration of its meaning in context. Ultimately, a relatively succinct balancing of interests may then be sufficient.

b) Regarding the circumstances that may often be relevant for balancing conflicting interests, the Chamber stated that it is primarily the specific derogatory content of a statement that is significant. A relevant aspect in such a balancing may be whether and to what extent the statement in question concerns the fundamental claim to respect, equally afforded to every person, or whether the statement only tarnishes the relative social reputation of the affected person. Moreover, the more a statement seeks to contribute to the free formation of public opinion, the greater the weight accorded to freedom of expression; conversely, the more a statement merely seeks to stir up emotions against individuals, without seeking to contribute to the formation of public opinion, the lower the weight accorded to freedom of expression. Given that fundamental rights protection in this area developed specifically as a response to the special need for protection of criticisms of persons in power, the balancing of interests may also have to take into account whether the statement in question concerns the private sphere of the affected person or rather their activities in public office. It may be necessary to differentiate between persons who deliberately step into the public eye, like politicians, and those who have been entrusted with a task involving contact with the public without any special action on their part, like minor public officials. However, the considerations relating to the criticism of persons in power remains part of the balancing; such criticism does not justify every kind of abuse, including personal abuse, vis-à-vis officials or politicians. This is because the Constitution sets limits to freedom of speech in respect of statements that seek to personally denigrate someone or incite hatred against them, whoever they may be, in particular if such statements are expressed in public.

With regard to the form and circumstances of a statement, it may be relevant whether the statement was made in a heated debate without premeditation or if it was made deliberately and in a premeditated way. The adverse effects on freedom of expression would be particularly severe if people had to carefully weigh up every word prior to making a spoken statement. It may also be relevant whether and to what extent there was a specific and plausible reason for making the statement in question, how broadly the statement is disseminated and what effects it has. If only a small group of persons becomes aware of a derogatory statement or if the statement is not made in writing or perpetuated in any other way, its adverse effects on personal honour are less significant and more short-lived than may be the case, depending on the specific situation, for statements made online on social media. However, in this respect, too, the courts cannot make their decision dependent on the medium as such, but must consider the overall effects of the specific statement.

2. Courts may refrain from conducting a balancing of conflicting interests in the individual case if derogatory statements amount to an assault on human dignity of another person, to formal invective or to calumny. Confirming established case-law, the Chamber reiterated that these are exceptional cases that are subject to narrowly defined conditions.

a) Given that these exceptions [of assault on human dignity, formal invective and calumny] render a balancing unnecessary and thus cause freedom of expression to be set aside, the courts are formally required to clearly indicate that a statement fits these constituent elements and to provide substantive reasoning that is tenable under constitutional law. This reasoning cannot be limited to the mere assertion that the requirements are met. Rather, the courts must set out the relevant reasons in a comprehensible manner, examining the objective circumstances of the case.

b) If a court wrongly affirms that a statement fits such exceptional constituent elements and therefore refrains from conducting a balancing, this amounts to a significant error under constitutional law, which will lead to the decision being reversed if it is based on that error. Conversely, where a court finds that a statement fits the aforementioned exceptional constituent elements, this does not preclude a – subsidiary – balancing of freedom of expression against the protection of one’s personality on the basis of the specific circumstances of the case; such a balancing is advisable in borderline case that are often not as clear-cut. 

c) The Chamber used the orders to recall the narrowly defined conditions under which these exceptional constituent elements apply.

aa) A statement cannot be categorised as calumny merely because its content is particularly derogatory. Calumny is not simply an extreme form of insult, but is defined by substantive aspects. Under constitutional law, calumnies are characterised by the complete lack of any discernible link to an objective discussion and by their purpose, which solely is to denigrate the affected person as such without any grounds for doing so. These are cases where it is ascertainable that a prior discussion is only used as a pretext to attack or humiliate others, for instance out of personal animosity (“private feud”) that has taken on a life of its own, or where persons – especially given the realities of Internet communication – are subjected to baseless disparagement and denigration without any discernible link to factual criticism out of reprehensible motives such as feelings of hatred or anger. Where a court assumes that a statement fits these elements, it must analyse the specific circumstances of the case. This must be distinguished from cases where the statement in question, even though it is deeply derogatory and thus lacks all objectivity, is ultimately an (excessive) means for criticism or an expression of indignation about certain events and thus does not solely serve to denigrate someone.

bb) Cases of formal invective within the meaning of constitutional law are also subject to strict standards. A statement may be classified as formal invective if it, deliberately and not just in the heat of argument, includes swear words which are generally considered to be especially extreme, and which are derogatory in themselves – such as faecal words. The decisive criterion for identifying such formal invective is not the derogatory statement’s lack of a connection to the facts, but the words used, which are socially taboo and subject to society’s utter disapproval regardless of their context, and which denigrate the targeted person as such; thus, the decisive criterion here is the specific form the statement takes.

cc) In addition, freedom of expression must always stand back if a statement violates another person’s human dignity. Yet this is only the case if a statement is not merely directed against individual personality rights, but if a specific person is denied recognition of the core of their personality, which constitutes their human dignity.

c) Finally, the Chamber pointed out that freedom of expression does not always take precedence where these narrowly defined exceptions do not apply. Such general precedence also does not arise from the presumption in favour of free speech, which does not entail precedence of freedom of expression over the protection of one’s personality in general. However, it follows from this presumption that statements of opinion that adversely affect another person’s honour can generally only be punished subject to a balancing of interests.

II. These standards are only met by the first two decisions of the criminal courts.

In proceedings 1 BvR 2397/19 the criminal court concluded, in line with the constitutional requirements, that the statement in question did not amount to calumny given that there was a connection to the facts; yet in the required balancing of interests, the weight of the right of personality of the affected persons far outweighed the freedom of expression of the complainant. The court substantiated, in a convincing and tenable manner, that the considerations of criticism of persons in power and of the “fight for one’s rights” could not push back the protection of the personal honour of officials to an unreasonable (unzumutbar) degree, especially since the personal affront resulting from the statements largely eclipsed the plaintiff’s substantive concerns. Furthermore, the court set out, in a comprehensible manner, that the statements were made repeatedly and in a particularly persistent manner, and that they denounced the affected persons by naming them, by using images and through their accusatory tone; they also found that the statements generally called into question the professional integrity of the affected judges and that they were posted on an online blog accessible to the general public and thus disseminated to an indefinite number of people. The Chamber considers this balancing to be tenable under constitutional law and confirms that a different outcome would hardly have been possible.

In respect of proceedings 1 BvR 2459/19, there is no need to decide whether the criminal conviction of the complainant was already justified on grounds of calumny, as the Local Court assumed. In any case, the decision rendered by the Regional Court on the basis of a balancing of interests satisfies the constitutional requirements according to which freedom of expression must be adequately taken into account when applying § 185 StGB. The court did not err in basing its decision mainly on the deeply derogatory content of the statement and its weak connection to the facts. The Regional Court is also persuasive in pointing out that complainant’s statement, which primarily contains value judgments on the mental health of the affected person, also has factual elements that the complainant deliberately misrepresented. In the specific situation, which was taken into consideration by the Regional Court, the fact that the statement concerned a public official and her official duties and that only a small group of persons became aware of it does not preclude conviction either.

In proceedings 1 BvR 362/18, it is unclear if the court assumed that the statement in question amounted to calumny. To make such an assumption, the court would have had to examine the statement and its circumstances and set out why it considered the statement to be a specific denigration without any connection to the facts. This was neither set out by the court, nor is it ascertainable otherwise. Rather, the statement at issue is a personal derogatory statement that is linked to an ongoing dispute and has a connection to the facts. It is also clear that the statement does not contain any denigrating abusive language that may not be voiced vis-à-vis other persons under any circumstances and would thus have to be considered a formal invective. Therefore, such a statement can only result in a criminal conviction subject to a balancing of the right of personality of the affected person against the complainant’s freedom of expression. The court does mention that a “balancing of interests” is required; however, it does not undertake such a specific balancing. Instead, the wording of the derogatory statement is only considered in the abstract. This does not amount to a sufficient examination of the specific situation in which the statement was made, which would have been required under constitutional law.

In proceedings 1 BvR 1094/19, too, the court cannot base the criminal conviction on the statement constituting calumny or formal invective. The challenged decisions are also not based on a balancing that satisfies the constitutional requirements. It is not ascertainable that the court sufficiently examined the specific situation in which the statement was made, nor do the decisions demonstrate why the interest in the protection of the right of personality on the part of the Finance Minister of North-Rhine Westphalia outweighs the considerable factors supporting the permissibility of the statement. The decisions fail to adequately address, in light of the specific circumstances of the case, the contents of the statement, the reasons and motives for making it and its specific effects; rather, they assign a meaning to the statement as directly intruding into the private sphere of the Finance Minister without providing detailed reasons for this interpretation, even though, given the other statements made by the complainant in these proceedings, there were considerable grounds for primarily understanding the statement as relating to the Finance Minister’s political actions. The decisions also fail to take into account that a person’s ability to competently hold the highest public and political posts does not form part of the fundamental claim to respect that is afforded to every person, that the statement was only made in a letter addressed to an administrative officer in the context of an administrative procedure, which was not public, and that, with his personalised letter, the Finance Minister had sent a message to the complainant himself, thus providing a specific cause for the complainant’s response.