Case Summary and Outcome

The Bundesverfassungsgericht (German Federal Constitutional Court) ruled that the right to freedom of expression under Art. 5 Grundgesetz (German Basic Law) also protects exaggerated criticism and that a wrongful classification of a statement as hate speech narrows the scope of protection under Art. 5. The lower instance courts ruled that  statements by a German lawyer who called the prosecutor on a case he was working on “maniac” and “insane” constituted hate speech and therefore fell within the definition of insult under §185 of the German Criminal Code.  The Bundesverfassungsgericht reasoned that hate speech must interpreted very narrowly and only if the main purpose of the expression  was defamation. Further, although a lawyer cannot be justified in insulting a colleague or prosecutor, in certain cases where the statements have a connection to an actual case or issue, they can be protected as exaggerated criticism under Art. 5 in which case the court has to weigh the right to freedom of expression on the one hand against the personality rights including reputation on the other.

Facts

The Claimant is a German lawyer who worked as a defense attorney on a case that started in 2009 and attracted a great deal of media interest. During the hearing in which a warrant for the arrest of the accused was delivered, the Claimant verbally attacked the prosecutor and left early, because he was of the opinion that his client was wrongly prosecuted and that the impending sanctions were unjustified. That evening a journalist called the claimant who initially said he did not want to talk or answer any questions but, in his fury about the proceedings, went on to call the prosecutor a “maniac”, “detestable”, “vicious” and “insane”.

On an application by the prosecutor, the Amtsgericht (First Instance Court) issued a penalty order for “insult” against the Claimant. The Landgericht, sitting as a Second Instance Court, reversed the judgement and acquitted the Claimant. The Kammergericht (Superior Court of Justice) subsequently reversed the second judgement and recommitted the case to a different chamber of the Landgericht.

This time, the Landgericht ordered the Claimant to pay a penalty under §185 of the German Criminal Code. The Court said that the Claimant’s statements were libelous and not justified in any way, including under §193 German Criminal Code which provides for a defense of fair comment.

After that, the Claimant filed a constitutional complaint at the Bundesverfassungsgericht (German Federal Constitutional Court) claiming an infringement of his right to freedom of expression under Art. 5 Grundgesetz (GG – German Basic Law).

Decision Overview

The Bundesverfassungsgericht delivered a per curiam decision in favor of the Claimant ruling that the decisions by the lower courts were an infringement of the Claimant’s right to freedom of expression under Art. 5 I Grundgesetz (GG). It acknowledged that Art. 5 II stipulates that the right to freedom of expression  is limited by provisions of the general laws, which include, inter alia, §185 German Criminal Code and that, therefore, the right to freedom of expression has to be weighed against the restriction on that freedom provided by §185 German Criminal Code, which criminalizes insult. However, the Court said that, when carrying out this balancing exercise, it was important to note that Art. 5 not only protects objective expression but also criticism, even criticism that is polemic or exaggerated, so long as it isn’t abusive and does not amount to hate speech.

The Court criticized the Landgericht’s for finding that the Claimant’s statements were hate speech without giving a reason for its evaluation. It said that hate speech is never protected under Art. 5  GG and must therefore be interpreted very narrowly. Consequently, it is only if the main purpose of the expression was defamation will it amount to hate speech.

The Court found that the Claimant’s statements were made in fury to criticize the prosecutor for her work and even though a lawyer cannot be justified in insulting a colleague or prosecutor, in certain cases where the statements have a connection to an actual case or issue, they can be protected as exaggerated criticism under Art. 5 GG. In that case, the court has to weigh the right to freedom of expression on the one hand against the personality rights including reputation on the other.

In these circumstances, the Court reversed the lower courts’ judgment and referred the case back to the Landgericht for a decision in accordance with its ruling.