Defamation / Reputation
Afanasyev v. Zlotnikov
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The Higher Regional Court of Hamburg held that the prohibition of large parts of a satirical poem about the Turkish President was lawful. A German satirist and comedian had recited the poem in his television show, and had linked the president to various sexual deviant behaviors. The president applied for a preliminary injunction ordering the satirist not to repeat the poem publicly. The First Instance Court partly granted the injunction, finding that certain verses of the poem contained severe unsubstantiated sexual allegations and personal insults, which concerned the intimate sphere of the president’s personality, and thus human dignity. The Hamburg Higher Regional Court widely confirmed these findings, and found that the verses which contained gratuitous insults to the president or his behavior, unrelated to actual criticisms or reality, were not protected by the right to artistic freedom or freedom of expression.
On 26 January 2022, the German Federal Constitutional Court refused to accept a constitutional complaint by Jan Böhmermann relating the poem, and hence “the previous civil courts rulings, in which parts of the poem were declared unlawful, are now legally valid.”
On March 31, 2016, German satirist and comedian Jan Böhmermann appeared on his television show, Neo Magazin Royale, and performed a poem about the Turkish President Recep Erdoğan which contained extremely explicit sexual language. Among other things, the poem implied that Erdoğan engaged in intimate relations with goats and sheep; watched child pornography while repressing the Kurdish people; had small genitals; and that everybody knew he was “gay, perverse, lousy and zoophilic”. The poem was part of a satiric sequence which included Böhmermann discussing the broad scope of freedom of expression and freedom of arts under German constitutional law, and the poem was introduced as a case example demonstrating the limits of these freedoms.
President Erdoğan responded by filing criminal and civil proceedings against Böhmermann and the publication of the poem. In April 2016, Erdoğan brought a charge against Böhmermann for insult under section 185 (Insult) and section 103 (Insult to Organs and Representatives of Foreign States) of the German Criminal Code. Section 103 is a rarely used provision which prohibits insulting foreign heads of state but requires that the German government give consent to the prosecution of such cases. The Mainz Prosecutor received Chancellor Angela Merkel’s permission for proceedings to go ahead, who stated that the German government would permit Erdoğan’s action to proceed under section 103, but also that the relevant law, which dates back to 1871, would be repealed. In October 2016, the Mainz Prosecutor’s Office announced that the investigation against Böhmermann was suspended. The repeal of section 103 became effective January 1, 2018.
On May 17, 2016, the Hamburg Regional Court (Landgericht Hamburg) partly granted the president’s application for a preliminary injunction ordering Böhmermann not to repeat the poem. Erdoğan sought an injunction against the repetition of the entire poem, arguing that the poem contained a string of formal insults, such as racist comments on Turkish people and statements on the sexual preferences of the Turkish president. He submitted that the poem’s only purpose was to vilify him and did not constitute satire, and that as the sexuality of persons belonged to the intimate sphere of a person, the statements in the poem conflicted with his human dignity. Erdoğan argued that as Böhmermann used artistic expression in an abusive manner he could not invoke the freedom of arts under article 5(3) German Basic Law.
Böhmermann requested the dismissal of the action, arguing that the poem was was protected by the freedom of arts as satire and had the aim to distort reality and must be assessed in its overall context. He explained that the poem’s purpose was to demonstrate the limits of permissible satire in a “satirical overall performance”, that he “wanted to inform the viewer about the scope of the constitutionally protected freedom of expression, arts and, in particular, freedom of satire in Germany and Turkey, and to contribute to the formation of public opinion about the limits of these values of freedom” [para. 19].
On February 10, 2017, the Regional Court upheld the injunction on specific verses of the poem. The Court considered that the Turkish president’s “current policy has taken the suppression of critical voices and opinions to such an extreme in a way […], that he has to put up with very harsh and otherwise perhaps intolerable comments and critical statements” [para. 22]. It balanced Böhmermann’s right to freedom to arts and freedom of expression and Erdoğan’s general right to personality under article 2(1) in connection with article 1(1) German Basic Law. The Court noted that although the right to artistic expression is guaranteed without a reservation, it is not boundless as it could conflict with other constitutional rights such as the general right to personality. The Court emphasized that satire is allowed a large degree of freedom and heads of state, such as the Turkish president, must bear particularly severe criticism as freedom of expression grew out of the special need to criticize power. However, the Court found that specific verses of Böhmermann’s poem exceeded the permissible degree of satire as they contained grave sexual descriptions and severe insults – such as comparing the Turkish president with Austrian sexual offenders or prejudices against Turkish people. It held that, even if these are obviously not meant seriously, the general right to personality of Erdoğan outweighed Böhmermann’s right to artistic freedom and freedom of expression.
Both parties appealed to the Hamburg Higher Regional Court (Hanseatisches Oberlandesgericht).
The Federal Constitutional Court did not accept a constitutional complaint by Jan Böhmermann against the rulings of the Hamburg Higher Regional Court and Hamburg Regional Court filed in 2019, because it had no prospect of success (Decision of January 26, 2022 – 1 BvR 2026/19). The court refrained from providing further reasons for its decision pursuant to Section 93d (1) of the Law on the Federal Constitutional Court.
The Hamburg Higher Regional Court delivered a unanimous decision. The central issue for the Court’s determination was whether the poem’s statements about Erdoğan were protected by Böhmermann’s right to freedom to arts and expression.
Böhmermann argued that the “smear poem” constituted a uniform and indivisible artwork and so single passages of the poem could not be prohibited.
Erdoğan argued that Böhmermann’s statements in the poem contained several insults that are not permissible within the freedom of expression.
The Court held that the challenged verses in the present case did not constitute a single, indivisible work, because in his television show, Böhmermann had interrupted his recitation of the poem for several times by brief dialogues with his co-author which meant that the audience understood the representation of the poem not as a single work but as a chain of expressions, each of which had a defamatory content. The Court recognized that “in the case of a uniform work composed of multiple statements, an infringement of the rights of others may even result from only individual ones of these statements”, and that a prohibition of the entire work was permissible “if the offending text parts are of importance for the overall conception of the work or for the understanding of the concern pursued with it” but this was not always compulsory since the restriction of single parts of the overall expression does encroach less on the rights of the disseminator [para. 141]. The Court explained that to determine the meaning of each statement “the understanding of the average recipient of such statement” is relevant [para. 142].
In respect of his right to personality, Erdoğan had based his request for an injunctive relief on an assertion of an insult and not on the dissemination of false factual allegations. The Court stated that the general right to personality protects the person concerned not only against false factual statements, but also “from being considered with disparaging value judgements in a way that is no longer compatible with respect for his personality – or even with his human dignity – and represents such a serious violation of personal honor that their dissemination is no longer covered by the right to freedom of expression” [para. 145]. The Court held that because the general right to personality in the German Basic Law is an everyman’s right, Erdoğan could rely on it.
The Court then examined the permissibility of Böhmermann’s poems in light of his right to freedom of expression and artistic freedom, and whether he could claim protection of his artistic freedom beyond the protection of the freedom of expression. The Court held that the verses recited by Böhmermann were satire because regardless of their content they “are embedded in a contribution in which criticism is made of the behavior of a person – the plaintiff – by means of jokingly intended remarks and exaggerations” [para. 147]. It noted that political satire was characterized “by the fact that in ‘clearly fictitious statements’ the ‘politically motivated mockery of the respective celebrity concerned’ is aimed at” [para. 147]. With reference to the Federal Constitutional Court, the Court held that satire could constitute art within the meaning of article 5(3) but it was not automatically art and had to fulfill the further requirements of the constitutional concept of art: a work of art within the meaning of article 5(3) is a work when “it is a product of free creative design in which the artist’s impressions […] and experiences are brought to direct perception through the medium of a specific formal language […]; the focus of the artistic work is not primarily on communication, but on expression, namely the direct expression of the artist’s individual personality and his or her inner experience” [para. 148].
Applying this to the present case, the Court found that Böhmermann’s poem was not art, but stated that – despite denying the poem’s artistic nature– its assessment would follow similar criteria as in the cases of an artistic nature. The statements in the poem were satire and thus the “principles developed for the admissibility of satirical statements come into play, and these are very close to the standards developed for the freedom of arts” [para. 149]. Accordingly, the specific character of the individual expression as well as the effect of alienation and exaggeration had to be considered.
The Court set out the established principles in law to assess satirical expressions which affect the general right of personality of another person. The content of the statement has to be determined, including a consideration of the satirical character, and then the actual content is determined by a “divestment of the chosen satirical garment” [para. 150]. Subsequently, “the core of the statement and its satirical dressing must be examined separately to determine whether they contain an expression of disrespect towards the person concerned” [para. 150]. The Court assessed each single verse whose repetition was prohibited by the lower court in order to determine the permissibility of these statements under these standards. The Court held that the right to freedom of expression under article 5(1) protects the expression of satire and criticism in a “pointed, polemical and exaggerated manner” but that “this protection requires that the statement really is a criticism, that it contains elements that relate to the object of the criticism” [para. 162]. Therefore, “[t]he further the content of a statement is distant from the object of criticism and focuses on the mere disparagement of the person criticized without reference to it, the lower the weight of freedom of expression for the person making the statement becomes compared to the weight of the general right of personality of the person affected by the statement” [para. 162.]
The Court concluded that the impugned verses contained references to the intimate and sexual, for which there are no actual points of reference to the person or behavior of Erdoğan. It distinguished these verses from those which satirically criticized Erdoğan’s actual behavior, and noted that the former aim at attacking the personal dignity only and thus are not permissible under the right to freedom of expression. Accordingly, the Court ruled that for these verses the Turkish president’s general right to personality outweighed Böhmermann’s right to freedom of expression.
The Court then examined Böhmermann’s introduction of some verses in which he stated that some of the subsequent expressions would be illegal in Germany and are not to be expressed, and whether this could render the expressions lawful. The Court held that this act of irony by stating the opposite of what is obviously meant, did not change the insulting character of the verses as Böhmermann’s behavior ultimately intended to criticize the Turkish president and the preceding reservation, not to insult, actually did not apply. Böhmermann’s conduct constituted a “‘protestatio facto contraria’, according to which the verbal raised contradiction to the explanatory value of one’s own actual conduct is irrelevant if this conduct has a clear explanatory value” [para. 164].
The Court assessed whether the fact that Böhmermann’s poem had been widely disseminated in the meantime and became subject of public documents precluded the injunctive relief. The Court held that this was not the case, because further dissemination of the original expression did not make the original unlawful expression lawful. Moreover, “[i]t would also be incompatible with the protection of the general right of personality, if the unlawful expression of an insult to another person were to become lawful because the consequences of this insult were reported in the media with a reproduction of its wording” and the original insulter could therefore repeat its insult as often as desired [para. 195].
For these reasons, the Hamburg Higher Regional Court dismissed the appeal and upheld the prior decision of the Hamburg Regional Court. Böhmermann remains prohibited by the injunctive order to repeat parts of his satirical poem. The Federal Court of Justice rejected Böhmermann’s appeal for non-admission (BGH, decision of July 30, 2019 – VI ZR 231/18).
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