May one nevertheless still say that?

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In times when social media serve as an echo chamber for sensitivities, it’s a perennial topic: still opinion or already offense?

"Surely one can still say that" versus "hatespeech".

A separate norm was even needed: the Network Enforcement Act (NetzDG) of 2017.

Three years later, the situation on Facebook and Twitter has by no means eased: The crudest mischief is spread in the crudest style. Postings and messages, which get along completely without polemics, one must search laboriously.

The Federal Constitutional Court has the floor

The guidelines for evaluating the breaking point between permissible and impermissible expression of opinion are developed in Germany by the Federal Constitutional Court (BVerfG) in its ongoing case law. Most recently, the BVerfG decided four relevant constitutional complaints (BVerfG, decisions of 19. May 2020 – 1 BvR 2459/19, 1 BvR 2397/19, 1 BvR 1094/19 and 1 BvR 362/18), in which the complainants challenged a criminal conviction for insulting. While the chamber did not accept two constitutional complaints, the other two constitutional complaints were successful.

The grounds for the judgment highlight essential constitutional requirements for a criminal conviction for defamatory statements under §§ 185 and 193 of the Criminal Code. The basic principle is that the conflicting interests of freedom of expression on the one hand and protection of personality on the other must be weighed against each other.

The BVerfG defines only three cases in which a balancing is not necessary: the defamatory criticism, the formal insult and the violation of human dignity. In these cases, the protection of personality always prevails and there is no consideration of the circumstances, the context, the history, etc. of the case. illuminates. Because these cases restrict the freedom of opinion without any ifs and buts, recognizing courts must demonstrate the existence of these criteria by substantive reasoning, the BVerfG admonishes.

Key term weighing

Otherwise must be weighed. What weighs more in the specific situation: the personal honor of the recipient or the freedom of expression of the expressor? No matter which result the criminal court may come to, the decisive factor is the context-sensitivity of the evaluation, i.e. that the statement is judged in consideration of its situational meaning and its "emotional embedding". Did it occur in a heated discussion or was it made in writing days later?? Was there a concrete cause or did one express oneself "just like that"?? Could only a small circle take note or the general public? Questions that the court must answer.

Beyond the concrete context, the defamatory content of the statement is significant. Is it a remark that concerns "all people equally entitled to respect" or is it directed against the specific "social reputation" of the person concerned?? Is this intended to contribute to the formation of public opinion (point for "freedom of expression") or is the expresser merely aiming to "spread emotionalizing sentiments against individuals" (point for "protection of personality")? Who is being addressed: a top politician (who basically has to do more – but not everything)! – endure) or a "normal citizen"? The answers shift the weight one way or the other.

Weighing with an open outcome

In the case of defamatory criticism, formal insult and violation of human dignity, the criminal court can save itself the work of weighing up or. must invest these to find good reasons that just such a form of ehr- bzw. The court has to decide whether the statement violates the right to freedom of expression.

If these reasons do not exist for at least one of the three exclusion criteria, this does not automatically mean that freedom of expression has priority a priori. That would be a false conclusion. In the practice of the procedure, it is therefore not possible that one must invalidate a fundamental priority of freedom of opinion with arguments in favor of personality protection, because this does not exist. Freedom of opinion and protection of personality rights are on an equal footing when it comes to weighing the two.

According to the BVerfG, a pre-determination in favor of freedom of speech "does not result from the presumption in favor of free speech, which does not establish a general primacy of freedom of speech over the protection of personality". On the other hand, it would be wrong to assume that every critical remark immediately breaks one of the three yardsticks, and then the more detailed circumstances would no longer have to be considered at all. Finally, the BVerfG also reminds us of this very clearly: "It follows from this, however, that expressions of opinion which impair the honor of others can normally only be sanctioned in accordance with a balancing of interests".

So in most cases at the beginning of the process there is a draw between freedom of speech and protection of personality. A consideration has to be made regularly, the decision of which is open. That this is done carefully is the obligation of the criminal court. It is again the task of the BVerfG to set up the necessary rules of the game and to supervise their observance, which it fulfilled in an enlightening manner with the decisions and their detailed justification.

The contribution comes from our free author Josef Bordat. It’s part of our series "Reports from the Parallel World". There, authors from other disciplines take a look at legal theory and practice. Unlike our other articles, the articles do not look at events and legal cases from a legal point of view, but from a completely different perspective. From which, that shall be left to the judgement of the readers. We think it will be interesting in any case.

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