Defamation / Reputation, Hate Speech, Political Expression, Religious Freedom
Awan v. Levant
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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.
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 29th and the other one on May 15th. 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.
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 […]
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 27th, 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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. The Court upheld section 5 (1) Political Parties Act in connection with Art. 21 I 1 and Art. 3 I Basic Law, which establishes political parties’ right to have their political advertisements broadcast, when spots are allocated. However, that right is not absolute and in the present case, the public broadcaster exercised their right to reject a political advertisement it found represented an “evident and severe” violation of the Criminal Code by defaming and infringing upon the dignity of a segment of society.
In a similar decision from May 15th, 2019, the Federal Constitutional Court decided in favor of the applicant NPD. In this case, rbb, a German public broadcasting service, allocated the applicant two 90 second spots for their campaign commercial but rejected the allocation after receiving the commercial, because rbb found it violated section 130 of the German Criminal Court. While two Administrative Courts agreed with rbb and thereby rejected the party’s request for an interim order, the Federal Constitutional Court ruled in the party’s favor. It did not regard the commercial to amount to an attack on migrant’s human dignity and therefore did not find a violation of section 130 of the Criminal Code. As a result, rbb had to re-allocate two spots for the NPD’s campaign commercial.
In a decision concerning election posters during the European Parliamentary elections, the Saxon city of Zittau took down three posters which were put up by the NPD. The posters demanded “resistance – now” and to “stop the invasion: migration kills“. The city of Zittau found them to constitute incitement of hatred under section 130 of the German Criminal Code. After the Administrative Court in Dresden and the Higher Administrative Court of Saxony rejected the party’s request for an interim measure forcing the city to put the posters back up, the applicant filed an appeal with the Federal Constitutional Court. NPD claimed an infringement of its right to freedom of expression under Art. 5 Basic Law. While the Constitutional Court criticized the Administrative Courts, it still had doubts regarding the constitutionality of the posters. Nevertheless, it found that the question whether or not the posters constituted incitement to hatred would have to be decided in a main proceeding. Thus, the Court had to balance the rights and potential consequences and found that the city’s interest prevailed over NPD’s.
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a binding precedence ruling that a commercial can be held back when breaching section 130 of the German Criminal Court
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