Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The Federal Constitutional Court of Germany held that a politician was entitled to receive information about Facebook users who had posted defamatory statements about her. The politician had been subject to offensive and disparaging statements on Facebook, and sought an order from the ordinary courts to obtain the user data of these users under the German Telemedia Act. The ordinary courts issued orders only in respect of the users whose statements the courts held constituted “punishable insult”. The politician then approached the Federal Constitutional Court. The Court held that the ordinary courts’ decisions had failed to recognize the scope and significance of the politician’s general right of personality and had not correctly balanced the right to freedom of expression with that right of personality. The Court held that the decisions had infringed the politician’s constitutionally-protected right to personality and set them aside, remanding the case back to the Berlin Appellate Court.
In October 2016, the owner of an internet blog posted a picture of Renate Künast – a German Green Party politician and parliamentarian – under the title “Renate Künast finds child fucking ok as long as there is no violence involved”. The blog post was accompanied by what appeared to be a quote from Künast, stating “Come on, if there’s no violence involved, sex with children is okay after all. It’s enough now.” A debate had arisen in 2015 about the position of the Green Party on pedophilia in the 1980s. Newspapers had reported on an interjection by Künast in the House of Representatives of the state Berlin in May 1986: while a member of the Green Party was speaking about domestic violence, a member of the governing coalition asked what the speaker’s position was on a resolution by the Green Party that the threat of punishment for sexual acts against children should be lifted, and Künast had shouted, “Come on, if there is no violence involved!”.
In 2016, Künast sought injunctive relief and damages against the owner of the blog. In early 2019, the blog owner published another post which included the picture of Künast and the false quote from the first blog. In April and May 2019, numerous Facebook users reacted to this post and commented with offensive and disparaging language, implying that Künast is a pedophile, mentally ill, that the commenters would like to “smash her face in” or she has to be “disposed”.
Subsequently, Künast requested information on user data of those Facebook users in terms of Section 14(3) of the German Telemedia Act (Telemediengesetz, TMG) before the Berlin Regional Court (Landgericht Berlin). Under Section 14(3) of the TMG, a service provider is permitted to provide information on its user data, if this is necessary to enforce private-law claims for the infringement of a person’s rights due to illegal content. This requires a prior court order, which the infringed party has to apply for. Illegal content includes content that meets the criteria in Sections 185 to 187 of the Criminal Code (Strafgesetzbuch, StGB) on insult, malicious gossip (Üble Nachrede) and defamation.
In its decision of September 9, 2019, the Berlin Regional Court dismissed Künast’s application. It held that the comments of the Facebook users were all permissible expressions of opinion and were, in part, very polemical, exaggerated and also sexist. It noted that, with her interjection in the Berlin House of Representatives, Künast herself expressed her opinion on an issue that affects the public to a very considerable extent and thus provoked resistance from the public. The Court noted that Künast had not yet publicly revised or clarified her interjection and held that all the comments had a factual reference and so did not constitute insults of Künast under the Criminal Code.
In a later court hearing on January 21, 2020, an objection by Künast was partially successful and the Berlin Regional Court allowed access to certain users data.
On March 11, 2020, the Berlin Appellate Court (Kammergericht Berlin) permitted the disclosure of information on user data of further commenters. The Court stated that the comments in question significantly disparaged the complainant in a defamatory manner. However, taking into account the requirements developed by the Constitutional Court, it found that the threshold for an insult under Section 185 StGB had not been exceeded. This was because the violation of the right to personality did not reach such the requisite level as, taking into account the context, the statements merely appeared to be a personal disparagement and defamation of the complainant.
In 2020, Künast filed a constitutional complaint against the earlier civil court decisions. She argued that her general right to personality had been violated because the courts did not grant her access to information on all users’ data under Section 14 (3) TMG, which was required to enforce civil claims against all Facebook commenters.
The Second Chamber of the First Senate of the Federal Constitutional Court of Germany delivered a unanimous decision. The central issue for consideration was whether Künast’s right to personality outweighed the right to freedom of expression of the Facebook users.
The Court stated that when interpreting and applying the provisions of civil law – including the provisions of the data protection law – ordinary courts must take into account basic rights as a guideline for interpretation. The Court comprehensively laid out the guiding principles for the assessment of expressions of opinion and their protection under the right to freedom of expression in Article 5 (1) German Basic Law (Grundgesetz, GG) as well as for the assessment of the general right to personality under Article 2 (1) in connection with Article 1 (1) GG. The Court observed that for the assessment of whether a violation of the general right to personality has occurred, the content of the statements in question had to be determined as a first step. The Court stated that what is decisive for the interpretation “is neither the subjective intention of the parties making the statements nor the subjective understanding of the persons affected by the statements, but the meaning they have according to the understanding of an unprejudiced and reasonable average public” – therefore an objective point of view [para. 28].
On that basis and as a second step, an insult under Section 185 StGB requires a balancing of interests that weighs the impairments of the conflicting rights – the right to freedom of expression and the general right to personality. This balancing exercise could only be dispensed with in exceptional cases if the statement in question constitutes a “calumny or defamatory criticism, profanity or an attack on human dignity” [para. 29]. With reference to the case, BVerfG, 1 BvR 2397/19 (05/19/2020), the Court held that a defamation “is given if a statement no longer has any kind of comprehensible reference to a factual argument and is basically only about the unfounded disparagement of the person concerned as such” [para. 29]. However, if none of these narrowly defined exceptions exists, this still does not justify a priority of freedom of expression when the case concerns statements that disparage the honor of certain persons. In those cases, a court has to undertake a “comprehensive examination of the specific circumstances of the case and the situation in which the statement was made” when weighing the basic rights [para. 30]. This assessment may include a consideration of “the content, form, occasion and effect of the statement in question, as well as the person and number of those making the statement, the person and number of those being affected by it and the person and number of the recipients” [para. 30].
In respect of weighing the right to freedom of expression, the Court provided a series of guidelines and indications. First, “the more a statement aims to contribute to the formation of public opinion, and the less it is about the spreading of emotional sentiments against individual persons, the greater weight must be accorded to the freedom of expression in the weighing of the rights” [para. 31]. Second, the weighing of freedom of expression and conflicting basic rights by a statement must include a consideration whether the private sphere or the public activities of the person concerned are addressed. The Court reasoned that “the protection of freedom of expression has evolved out of the special need to protect criticism of power” and “[p]art of this freedom is that citizens can attack public officials […] in an accusatory and personalized manner for their way of exercising power, without having to fear that […] such statements […] form the basis for drastic judicial sanctions” [para. 32]. The Court referred to the case-law of the European Court of Human Rights and Article 10 of the European Convention on Human Rights in noting that the limits of permissible criticism towards politicians are broader than those for private persons. However, it also noted that public figures and officials do not have to accept all kinds of personal disparagements, particularly personal and public abuse and hate speech, because of the protection given to them by the German Constitution. This is especially so in the context of social media where the effective protection of the personal rights of public officials and politicians is in the public interest because “a willingness to participate in the state and society can only be expected if those who get involved and make a public contribution” can rely on a sufficient protection of their personal rights [para. 35]. The Court indicated that “statements merit less protection, the more they move away from a battle of opinions on issues that […] affect the public and the disparagement of the persons concerned comes to the fore” [para. 34]. It added that the question of which statements public figures must tolerate “depends not only on the type and circumstances of the statement, but also on the position [the public figures] hold and the public attention they claim for themselves” [para. 34]. Third, with regards to the form and circumstances of a statement, the Court held that it was relevant whether the statement was “made ad hoc in a heated situation or, on the contrary, with a longer period of forethought. It would be particularly detrimental to the freedom of expression if every word had to be weighed in the balance before an oral statement is made” [para. 36]. The Court found that a higher degree of deliberation and restraint could be expected in written statements, and that the concrete dissemination and effect of a statement had to be taken into account when weighing the conflicting rights: if only a small circle of persons became aware of a defamatory statement the impairment of personal honor is less than if a statement is expressed in a repetitive and denouncing manner (for example, using images of the person concerned) or particularly visible in a medium accessible to the general public, such as the internet.
The Court emphasized that all the aspects relevant for a concrete evaluation “do not have to be ‘worked through’ in their entirety in every case. Rather, it is the task of the specialized courts, based on the circumstances of the individual case, to determine the relevant aspects and weigh them against each other. Depending on the circumstances, a very concise weighing may be sufficient” [para. 38].
The Court found that the ordinary courts had not applied the above-mentioned guidelines and criteria, and held that the Higher Regional Court incorrectly considered that the requirements for insult (Section 185 StGB) were only met if a statement amounted to defamatory criticism (Schmähkritik), holding that a statement is punishable under criminal law only once it had to be considered a mere disparagement of the person concerned in any conceivable context. The Court stated that the Higher Regional Court failed to conduct the necessary weighing of the aspects in the individual case, because it based the evaluation of Künast’s personal rights and the conflicting freedom of expression on incorrect standards and ultimately equated an insult with defamatory criticism. This constituted a violation of Künast’s general right to personality under Article 2 (1) in connection with Article 1 (1) GG.
Accordingly, “this – practically complete – failure to weigh up the facts must already lead to the annulment of the challenged decision”, and the Court held that the challenged court decisions violated Künast’s general right to personality because they denied her a court order to obtain the subscriber data of the remaining ten users [para. 46]. The Court set aside the lower courts’ decisions and remanded the cases to the Berlin Appellate Court for a decision in accordance with its ruling.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this landmark decision, the Federal Constitutional Court clarified the constitutional standards which ordinary courts have to consider when evaluating the right to freedom of expression in connection with the right to personal honor, and strengthened the protection of personal rights and personal honor in the context of hate speech and defamatory criticism.
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