Case Summary and Outcome

The German Federal Constitutional Court upheld lower court rulings that a political ad produced by the right-wing NPD party infringed the human dignity of migrants and thus violated Section 130 of the Criminal Code. NPD brought the action against the public broadcaster Zweites Deutsches Fernsehen (ZDF) after their political ad produced for the 2019 European Parliamentary elections was rejected and denied its scheduled slots to air. The Court found that the language and the imagery used in the ad portrayed all migrants as criminals, which infringed their human dignity, constituted group defamation and could negatively impact public order. The Court was further concerned that the ad’s proposal to establish “protection zones” called into question the state’s monopoly on the use of force. The Court ruled in favor of ZDF and the political ad was not broadcast.

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Facts

The applicant, NPD, is a right-wing extremist party in Germany. The defendant, Zweites Deutsches Fernsehen (ZDF) is a public broadcasting service.

In the run up to the European Parliament elections in May 2019, ZDF allocated NPD two spots for their campaign advertisement, one on April 29^th and the other one on May 15^th. However, ZDF rejected the ad submitted by the NPD on the ground that it constituted incitement to hatred and therefore violated section 130 of the German Criminal Code.

The ad in question opened with the words, “Seit der willkürlichen Grenzöffnung 2015 und der seither unkontrollierten Massenzuwanderung werden Deutsche fast täglich zu Opfern” (Since the arbitrary opening of the borders in 2015 and the resulting uncontrolled mass immigration, Germans have been victimized almost daily). That was followed by pictures of crime scenes and names of victims of violent crimes or homicides and concluded with a proposal to establish  “protection zones” in which Germans allegedly could feel safe again.

The Administrative Court Mainz rejected NPD’s request for an interim order forcing ZDF to broadcast the ad. It reasoned that the ad violated section 130 of the German Criminal Code on the ground that it committed group defamation by portraying each and every migrant as a criminal, thereby propagating social divisions.

The NPD appealed the decision to the Higher Administrative Court Rhineland Palatinate. After the appeal was rejected, the NPD applied to the Federal Constitutional Court for an interim order to have the ad broadcast, arguing that ZDF’s rejection of the ad amounted to an infringement of their right to freedom of expression under Art. 5 I 1 of the German Basic Law. Again, the request was rejected.

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Decision Overview

On April 26, 2019, the Higher Administrative Court Rhineland Palatinate in Koblenz rejected NPD’s appeal, and reaffirmed the lower court’s decision.

The Court started by pointing out that the right to broadcast a campaign ad is granted under section 5 (1) Political Parties Act in connection with Art. 21 I 1 and Art. 3 I Basic Law. Section 5 (1) Political Parties Act reads:

(1) Where a public authority makes facilities available to political parties or provides them with other public contributions and services, equal treatment shall be accorded to all political parties.

Nevertheless, this right cannot be granted without limitations. Broadcasters have a right and a duty to check if a commercial violates the Criminal Code and may reject a commercial if they find “evident and severe” violations. Section 130 (1) No. 2 reads:

(1) Whosoever, in a manner capable of disturbing the public peace […]

1. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population,shall be liable to imprisonment from three months to five years.

This high threshold is necessary in order to protect the constitutional values enshrined in the Basic Law Art. 21 I 1 which states, political parties shall participate in the formation of the political will of the people, and Art 3 I 1 which states, all persons shall be equal before the law. Considering the above standards, the Court found NPD’s commercial violated section 130 (1) No. 2 of the German Criminal Code in an “evident and severe” manner which justified ZDF’s decision.

According to the Court, the ad infringed the human dignity of foreigners living in Germany, especially those who came to Germany after 2015. They represent a “segment of the population” according to sec. 130 (1) No. 2 Criminal Code. However, the ad presented foreigners as criminals and thereby suggested that they constitute a danger to the lives of German citizens. The ad also used the term “Messermänner” (men with knives) which together with the slogan “migration kills” amounted to group defamation. NPD tried to argue that the commercial only concerned a small group of foreigners and can therefore could not be seen as a group defamation of an entire segment of the population. However, the court rejected this argument based on the fact that in the present case, there would be no need for “protection zones” as suggested in the commercial.

Moreover, the ad attributed socially intolerable characteristics to an entire segment of the population which amounted to an assault on their human dignity.

Lastly, the Court went on find that the commercial was capable of disturbing the public order. It reasoned that the sweeping contrast of “dangerous migrants” and “Germans in need of protection” aimed to exclude migrants from German society. Further, the proposal to establish “protection zones” suggested that the state was unable to provide sufficient protection for its citizens, which called into question the state’s monopoly on the use of force.

Hence, the Higher Administrative Court affirmed the lower court’s decision and rejected NPD’s request for an interim measure to force ZDF to broadcast the campaign advertisements.

In a last instance, NPD appealed to the Federal Constitutional Court.

On April 27^th, 2019, the Federal Constitutional Court ruled in favor of the ZDF, and thereby affirmed the Administrative Courts decisions.

The Court reasoned that both lower instances addressed NPD’s right to freedom of expression under Art. 5 I 1 of the German Basic Law appropriately. The right to freedom of expression had to be taken into account when finding a violation of section 130 of the German Criminal Code. Since the Administrative Courts weighed both rights against each other, the Federal Constitutional Court found no reason to overrule those decisions.

Therefore, the NPD’s application for an interim measure forcing ZDF to re-allocate two broadcasting spots for the political party’s advertisement was rejected.

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