Article Germany: Federal Constitutional Court Rules on Social Media Infringement of Politicians’ Personality Rights

In a decision published on February 2, 2022, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) developed a set of criteria that courts must apply when evaluating whether a statement violates the personality rights of a politician. The court explained that protecting politicians from impertinent harassment is within the public interest and that, in this context, the right to freedom of expression has limits. The BVerfG overturned the decision of the lower Berlin Court of Appeals (Kammergericht Berlin, KG Berlin), which had denied German parliament member Renate Künast access to the Facebook account details of several users who had posted harsh comments about her on the platform. The case was remanded to the KG Berlin for new consideration and a decision.

Facts of the Case

In October 2016, a blogger posted a picture of Künast, a well-known member of the parliament from the German Green Party (Bündnis 90’ Die Grünen), on the internet. The picture of her included a doctored quote of Künast’s that said, “Come on, if there is no violence, sex with minors is okay. Give it a rest.” Künast sued the blogger for damages and requested injunctive relief. In early 2019, the blogger complained about the proceedings on his Facebook page. Twenty other users commented on the post with very harsh and often sexist comments, calling Künast, among other things, a “bitch” and “brain amputated.” (Decision paras. 3, 5–7.)

The background to the blog post was the publication of a final report from a commission set up by the Green Party analyzing a controversial 1980s debate within the party concerning the criminalization of sex with children. In a parliamentary debate in 1986, Künast had interjected when the speaker, a colleague from her party, was asked about her position on a decision by the Green Party in the state of North Rhine-Westphalia to abolish penalties for sexual acts involving children. She said, “Come on, if no violence is involved!” (Para. 4.)

In reaction to the 2019 Facebook post, she asked the Regional Court of Berlin (Landgericht Berlin, LG Berlin) to order Facebook to provide her with the account details of the users in question to hold them accountable in civil court. Under section 14, paragraph 3 of the German Telemedia Act in the version in effect at the time of her claim (now codified with the same wording in Telekommunikation-Telemedien-Datenschutz-Gesetz, TTDSG § 21, paras. 2, 3), social media platforms must provide the account details of users who post unlawful content to the injured individual. According to section 1, paragraph 3 of the Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG), content is considered unlawful in particular when it amounts to an insult within the meaning of section 185 of the German Criminal Code (Strafgesetzbuch, StGB). To obtain the information, the injured individual must file an application at the local district court, which would order the social media platform to provide the data when the requirements are met. (Decision paras. 2, 8.)

In September 2019, the Berlin District Court ruled that none of the comments constituted an insult and rejected her claim. Künast appealed, and both the Regional Court of Berlin and the Berlin Court of Appeals reclassified some of the comments as insulting. Other comments remained described as “objective contributions to the debate” by the courts. In the opinion of the lower courts, these comments were not sufficiently severe to allow them to be interpreted as solemnly degrading in every sense. Künast filed a constitutional complaint against the final decision of the Berlin Court of Appeals, arguing that her right to personality deriving from article 2, paragraph 1 in conjunction with article 1, paragraph 1 of the German Basic Law (Constitution) had not been sufficiently evaluated in this context. (Paras. 9–18.)

Decision

The German Federal Constitutional Court stressed that there was a public interest in effectively protecting the personality rights of politicians because “participation in the state and society can be expected only if those who get involved and make a public contribution are guaranteed adequate protection of their personal rights.” (Para. 35.)

The court held that the protection of fundamental rights requires a “balancing evaluation of the impairments that threaten the legal rights and interests concerned, in this case freedom of expression and personal honor.” (Para. 29.) It then elaborated on the criteria for the evaluation without making a final decision in the case at issue.

First, it stated that freedom of expression has a greater weight when the statement aims to “contribute to a public debate” and a lesser weight when it is “merely a matter of spreading emotionalized sentiments against individual persons.” (Para. 31.)

Second, in the opinion of the court, the principle of freedom of expression requires that citizens be able to criticize those who hold power, even with regard to their personal attributes. (Para. 32.) This view is shared by the European Court of Human Rights and its jurisprudence on article 10 of the European Convention on Human Rights. However, courts must differentiate whether the criticism is aimed at the political or public actions of politicians, which are up for public debate, or at their private lives, which need to be respected. (Para. 33.)

Third, even with regard to criticizing politicians for their public actions, there are limits, especially when it comes to public humiliations and hate speech. (Para. 34.)

Fourth, it is important to consider the context of a decision. For written statements a “higher degree of restraint” is expected than from those made verbally. (Para. 36.) How many people have access to the message must also be taken into account. In this regard, the court stated that the internet can be a medium that “reinforc[es] the discrediting effect of a statement.” (Para 37.)

The Federal Constitutional Court overturned the decision of the Berlin Court of Appeals, stating that the court of appeals had not applied the correct legal standard. Only if a statement is so offensive that it amounts to abusive criticism (Schmähkritik) — meaning a statement aimed only at defaming a person — or constitutes an attack on human dignity can it qualify as an insult in a criminal law sense without further evaluation. (Para 29.) This does not mean, however, that, a statement that does not reach this high threshold may never be seen as an insult. (Para. 30.) In such cases, a general evaluation must be conducted, which the Berlin Court of Appeals had refused to do. (Para. 39 et seq.)

Related Decisions

On July 29, 2021, the Federal Court of Justice (Bundesgerichtshof, BGH) issued two decisions regarding possibilities for social media platforms to delete posts and block user accounts (docket numbers: III ZR 179/210 and III ZR 192/21). It held that network providers may not use the decision-making power resulting from their exclusive control over their platforms, called “structural superiority” by the court, to arbitrarily prohibit individual expressions of opinion. Concerned users must immediately be notified when a post has been deleted, giving them the possibility to object to the measure.