Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Federal Constitutional Court of Germany held that judgments of lower courts which prohibited a public speaker from calling a German singer an “anti-Semite” were unconstitutional and violated the right to freedom of expression. During a public lecture, an expert speaker referred to a well-known German singer as an “anti-Semite”. Both the Court of First Instance and the Court of Appeal found that the singer’s general right of personality outweighed the speaker’s right to freedom of expression as the designation as an “anti-Semite” was a significant encroachment on his personality. The speaker filed a constitutional complaint before the Federal Constitutional Court, arguing her right to freedom of expression had been infringed. The Constitutional Court found that the lower courts had not applied correct standards in assessing the meaning of the statement and chose a far-fetched interpretation. It also noted that the lower courts had wrongly required the speaker to prove her statement’s factual content and failed to recognize the significance and scope of the freedom of expression in the public battle of opinions. The Constitutional Court set aside the judgments of the lower courts and remanded the decision to the court of first instance for a new decision in accordance with its ruling.
In the summer of 2017, an expert speaker of the Amadeu Antonio Foundation delivered a public lecture. The Foundation aims to strengthen democratic civil society and oppose right-wing extremism, racism and anti-Semitism. The topic of the lecture was the conspiracy ideologies of the so-called “Reich citizens”, who consist of several far-right groups that reject the legitimacy of the Federal Republic of Germany in favor of the German Empire (1871-1918). In the lecture, Xavier Naidoo, a well-known German singer, was named on one of the speaker’s slides. When the audience asked what the speaker thought about Naidoo, she said: “I would count him as one of the sovereignists, with one leg with the Reich citizens. He is an anti-Semite, but I don’t think I’m allowed to say that so openly, because he likes to sue. But that is structurally provable.”
In 2014, Naidoo had given a speech at an assembly of Reich citizens in front of the German Bundestag (site of the German federal parliament). In an interview with a magazine in 2015, he had discussed whether it was justified to consider Germany as “occupied”. His song lyrics, statements and political attitude were the subject of a report by the Independent Expert Group on Anti-Semitism of the German Bundestag and several articles in magazines and newspapers.
On August 7, 2017, the Regensburg Regional Court (Landgericht Regensburg) issued an interim injunction prohibiting the speaker from making or disseminating the statement she had made in response the audience question at the public lecture. The Regional Court found that the contested statement violated Naidoo’s general right of personality under Art. 2 (1) in connection with Art. 1 (1) German Basic Law (Grundgesetz, GG). It accepted that the speaker’s statement was protected by the freedom of expression under Art. 5 (1) GG as it was not a factual claim but a statement of opinion, significantly influenced by her personal assessment. The Court noted that “the designation as ‘anti-Semite’ against the background of German history is a considerable and far-reaching encroachment, which in principle is also capable of having a damaging effect on the reputation. This gives the encroachment on the claimant’s right of personality a high weight” [para. 71]. It also acknowledged that Naidoo “as an artist, places himself in the public sphere and must therefore also increasingly face discussion about his statements” [para. 72]. However, the Court held that the speaker “was unable to present sufficiently weighty evidence that [Naidoo’s] entire personality justified the designation as an anti-Semite. Under these circumstances, freedom of expression ultimately had to take second place to the claimant’s right of personality” [para. 74].
The speaker appealed to the Nuremberg Higher Regional Court (Oberlandesgericht Nürnberg), arguing that the Regional Court had incorrectly placed emphasis on whether she had substantial proof for her statement of opinion. She submitted that it was sufficient that she formed her opinion according to objective factual links. She also argued that the Regional Court “did not sufficiently take into account that [Naidoo] seeks the public stage for political statements and accordingly also has to endure a critical debate about his views” [para. 32]. Naidoo asserted that the speaker’s statement was a factual claim but that even if the court were to find that the statement was an expression of opinion, his general right of personality outweighed the speaker’s freedom of expression. On October 22, 2019, the Nuremberg Higher Regional Court dismissed the appeal. The Court classified the speaker’s statement as an expression of opinion because, “although it also contained factual elements, these were so closely connected to the evaluative statements that they could not be taken out of context and considered in isolation” [para. 56]. It held that the general right of personality of Naidoo outweighed the speaker’s right to freedom of expression, and noted that there was no universally accepted definition for the term “anti-Semitism” and it ranged from a broad understanding of the term, according to which anyone who had any kind of negative perception of Jews was to be understood as an anti-Semite, to a narrow understanding, according to which anti-Semitism was synonymous with hatred of Jews. Against this backdrop, the statement “anti-Semite” was a particularly intensive encroachment and had a “pillorying effect” [para. 47]. The designation of Naidoo as an “anti-Semite” drew an “extremely negative picture of his personality and character” and “impaired his personal dignity to a high degree” [para. 121]. The Court considered whether the factual assertions contained in the statement of opinion were correct or made without any evidence and held that the statement was based on incorrect content and its objective correctness was not sufficiently proven.
The speaker filed a constitutional complaint with the Federal Constitutional Court on the grounds that the lower courts had not sufficiently assessed the significance of her right to freedom of expression and their judgments were therefore unconstitutional.
The Second Chamber of the First Senate of the Federal Constitutional Court delivered a unanimous decision. The central issue for the Court’s determination was whether the lower courts had correctly assessed the speaker’s freedom of expression and whether the right had been violated by the lower court’s judgments.
The speaker argued that the order to refrain from making and disseminating the statement violates her right to freedom of expression under Art. 5 (1) sentence 1 GG. She argued that the lower courts had interpreted her statement in an inadmissible manner or qualified it as ambiguous and found that she had not sufficiently substantiated her statement. She submitted that the view that Naidoo was particularly affected by the statement as a person in the public sphere was mistaken, and that because he uses songs, performances and interviews to make his personal political views known, he must also expose himself to an increased degree of criticism. She maintained she was entitled to question and criticize Naidoo’s publicly made statements.
The Court set out the legal principles guiding the assessment of an expression of opinion under Art. 5 (1) GG. In accordance with established case law, the Court reiterated that the “[i]nterpretation and application of the relevant provisions of civil law is the task of the ordinary courts. In their decision, however, they must take into account the influence of fundamental rights on the provisions of civil law” [para. 14]. It stated that “[a] violation of constitutional law, which the Federal Constitutional Court must correct, only occurs if a judicial decision reveals interpretative errors that are based on a fundamentally incorrect view of the meaning and scope of a basic right, in particular of the scope of its protection […]. However, in the case of encroachments on freedom of opinion, this may already be the case if a statement is inaccurately perceived or assessed” [para. 14]. The Court referred to the civil law provisions enforcing the general right of personality which are Section 1004 (1) and Section 823 (2) of the German Civil Code, allowing for injunctive relief against infringing statements. It noted that, according to Art. 2 (1) GG, the general right of personality was only guaranteed “insofar as [it] does not violate the rights of others or offend against the constitutional order or the moral law,” including the right to freedom of expression protected under Art. 5 (1) sentence 1 GG, which itself is limited by “the provisions of general laws, in provisions for the protection of young persons and in the right to personal honor” according to Art. 5 (2) GG.
In their evaluation of a violation of the right to freedom of expression, the lower courts had to identify the objective content of a statement and clarify “in which respect its objective meaning impairs the right of personality of the claimant in the original proceedings. The decisive factor for the interpretation is neither the subjective intention of the person making the statement nor the subjective understanding of the person affected by the statement, but the meaning that it has according to the understanding of an unbiased and reasonable average public […]. Remote interpretations are to be excluded” [para. 17].
The Court found that the lower courts had not met that standard as they failed to satisfy the constitutional requirements when determining the meaning of a statement. The determination had to be based on the wording of the statement and take into account the context and accompanying circumstances. Furthermore, the lower courts failed to recognize “the significance and scope of the freedom of expression in the public battle of opinions, which may also be used with sharp statements in the case of contributions that are put up for public discussion and arouse social interest” [para. 18]. The Court stated that the lower courts did not undertake a concrete interpretation of the meaning of the speaker’s statement. The statement had to “be understood unambiguously to the effect that the [speaker] considers [Naidoo] to be someone who is close to the so-called Reich citizens, who as a so-called sovereignist pursue the concern of (re)establishing Germany’s sovereignty, which in his view is lacking, and who in this context also carries on anti-Semitic ideas” [para. 20]. The Court stated that the Higher Regional Court did not have to apply the principles for interpreting ambiguous statements of opinion, and held, contrary to the Higher Regional Court, the speaker’s statement “is not to be understood to mean that the claimant in the original proceedings is a person who grossly violates the personal dignity of people of Jewish descent by means of National Socialist-based ideas and is possibly even willing to act in this sense. This interpretation is far-fetched” [para. 20].
The Court acknowledged that in the context of the weighing of conflicting rights, courts may consider whether factual assertions, on which a statement of opinion is based, are right or wrong. However, in the case at hand, the sentence “But that is structurally provable” contained in the speaker’s statement was not a factual assertion on which she based her assessment of Xavier Naidoo as an anti-Semite. Therefore, the Court held that the “lack of provability of ‘structural evidence’ was irrelevant” and the lower courts were not allowed to assume that “the factual content of [the speaker’s] statement was incorrect and that she had not been able to prove the correctness of her statement” [para. 21].
The Court also found it constitutionally flawed that the Higher Regional Court, in the context of weighing the conflicting legal rights, considered “the accusation of anti-Semitism particularly serious in the case of a singer who is dependent on interaction with the public and who is particularly in the public eye” [para. 22]. By doing so, that Court had failed to “recognize the significance and scope of freedom of expression, since the [speaker] did not merely conduct a private argument in pursuit of her own interests, but discussed it in connection with an issue that substantially affects the public – namely, whether [Naidoo], as a well-known singer, serves anti-Semitic clichés and resentments in his song lyrics and through his statements” [para. 22].
The Court emphasized that persons who give cause to (negative) statements of opinion in the public debate also have to accept sharp reactions, even if these diminish their personal reputation. By sharing his contentious political views, Naidoo had voluntarily entered the public sphere and claimed public attention for himself. For this reason alone, the lower courts’ assumption that the speaker’s statement has a “pillorying effect is completely far-fetched” [para. 23]. The Court held that heightening the level of protection of Naidoo’s personality rights “with reference to his efforts to attract public attention and his dependence on the approval of part of the public” – as the lower courts had done – “would make criticism of the political views disseminated by him impossible” [para. 23]. The Court stressed the necessity of public debate in order to form public opinion, and that, within this public debate, Naidoo could publicly defend himself against the speaker’s opinion.
Accordingly, the Federal Constitutional Court held that the judgments of the lower courts violated the speaker’s right to freedom of expression under Art. 5 (1) sentence 1 GG and set them aside. The Court remanded the decision back to the Regional Court for a new decision in accordance with its ruling.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision clarifies the constitutional standards for assessing personal statements, which criticize public persons and their political views. The Federal Constitutional Court emphasized that public persons who give cause to (negative) statements of opinion in the public debate also have to accept sharp reactions, even if these diminish their personal reputation.
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