Bundesgerichtshof (Federal Supreme Court), 6th Civil Senate
VI ZR 45/05
5th December 2006
1 The claimant works as a freelance journalist for various periodicals. The defendant organises the Internet site for the printed edition of the “F newspaper”.
2 The defendant published an article on the 4th September 2003 under the heading “Revelations — the terrorist and the barber”. It was about the Berlin hairdresser U W and his client¿¿le, which includes well known politicians. It stated that the hairdresser had done the hair of the Red Army Faction (RAF) terrorist Ulrike Meinhof at a time when she was already being sought for murder. This had been disclosed in an article which the claimant had written in the daily Die Welt.
3 The article refers to the fact that the claimant was the daughter of Ulrike Meinhof, and some years ago had studied the role of the former Foreign Minister Fischer in relation to the disturbances in Frankfurt. It goes on to say: “At the climax of the debate about Fischer’s past, the reporting changed tack. Colleagues now turned on the huntress, and the portraits were anything but flattering. R appeared as a fanatical and embittered conspiracy theorist, with an utter hatred of the “sixty-eights”, and who fought them, as Die Welt once claimed, ¿¿¿with strange methods¿¿¿. At the most she was shown sympathy rather than respect, an obviously traumatised terrorists’ daughter, who at the age of seven was to be transported to a Palestinian camp in Jordan before S A, the current Editor-in-Chief of Der Spiegel, rescued her from the hands of the RAF”.
4 In 1995 (besides other occasions) the claimant wrote “about her childhood in the shadow of terrorism” as Ulrike Meinhof’s daughter in a front page story in Der Spiegel. In 1998 she published a personal obituary in Der Stern under the headline “The Myth of Ulrike Meinhof”. On her homepage there is a button which, next to the claimant’s name, refers to Ulrike Meinhof. A further button refers to the “The Myth of the RAF”. Besides this there is a page which, next to a photo of the claimant, refers to a new sound file about Ulrike Meinhof and contains a comparison between a “wanted persons” photo of Ulrike Meinhof and a photo of the claimant, and a RAF song.
5 After the defendant had committed itself in a declaration of the 2nd October 2003 to omit the words “obviously traumatised”, the claimant has directed her claim against the description of her as a terrorists’ daughter.
6 The Landgericht has rejected the claim in this respect. The Oberlandesgericht has prohibited the defendant from describing the claimant as a “terrorists’ daughter”. By the appeal in law, which has been admitted by this Senate, the defendant pursues its application for dismissal of the claim.
7 In the appeal court’ s view, the claimant has a claim for the defendant to desist from describing her as a “terrorists’ daughter” (¿¿ 823 para 1, ¿¿ 1004 of the BGB by analogy). The description unlawfully infringed the claimant’ s general right of personality.
8 The expression “terrorists’ daughter” represented an assertion of fact. An average reader would understand the abstract message in the description as that someone was the daughter of terrorists, or of a terrorist. Because of the allusion to Ulrike Meinhof, it was made clear to the average reader that the description was meant in the sense of “daughter of a terrorist”.
9 It could be left undecided how far the claimant had in principle to endure reference being made to Ulrike Meinhof as her parent. Even if she had to accept this, her familial connection with Ulrike Meinhof ought not to be expressed by the potent catchphrase “terrorists’ daughter”. Other people would only in principle have access to familial relationships as part of the private sphere insofar as they were allowed this. The claimant had given no consent for her relationship to her mother and her parentage to be reduced to her being a “terrorists’ daughter”. She did not therefore have to suffer the description.
10 The fact that the claimant had produced several publications on the subject of Ulrike Meinhof and RAF terrorism, and thus made it public that she was the daughter of Ulrike Meinhof, did not make any difference. The claimant worked as a freelance journalist. She had the right, within the parameters of press freedom guaranteed by Art 5 para 1 sentence 2 of the Basic Law to determine the type, orientation, content and form of her publications herself. The tone in which she composed her articles was part of freedom of opinion. It was not claimed that she had crossed the boundary into invective.
11 The description “terrorists’ daughter” was unlawful. It was true that people did not have a claim to be presented in the way they saw themselves; but they did have a claim to be represented accurately and not falsely.
12 The appeal court’s observations do not stand up to examination in the appeal in law.
13 The appeal court has not undertaken the necessary balancing exercise between the claimant’s general right of personality protected in constitutional law by Art 2 para 1 in combination with Art 1 para 1 of the Basic Law and the defendant’s right to freedom of opinion under Art 5 para 1 sentence 1 of the Basic Law. It has only addressed the basic right under Art 5 para 1 of the Basic Law with regard to the claimant’s activity as a freelance journalist and the basic right protection for her arising from this. But in view of the facts of the case it is not a question of this. It is much more a question of whether the defendant was permitted describe the claimant in the actual context as a terrorists’ daughter. A balancing exercise between the competing basic rights of the parties would have been needed to decide this question.
14 1. The standards which apply for this balancing exercise depend in principle on the message contained in the statement, and thus on its classification as an assertion of fact or an expression of opinion. This distinction is in principle required because the protection of freedom of opinion under Art 5 of the Basic Law as a rule manifests itself more strongly for expressions of opinion than for assertions of fact. In this case, the appeal court has classified the statement objected to as an assertion of fact. This is correct insofar as the statement has a factual content — in fact, to the extent that for the average reader the reference to Ulrike Meinhof makes it clear that the description is meant in the sense of “daughter of a terrorist”. Contrary to the view expressed in the reply to the appeal in law, it cannot be deduced from the statement that the claimant had, for instance, identified herself with the aims of terrorists, in particular the RAF. Such an understanding can be excluded by the content of the article as a whole, and the appeal court has also not understood the statement in this sense.
15 The message of the statement is however not completely captured by classifying it as an assertion of fact, especially as the truth of the factual core is not in dispute. It is much more a question of whether the chosen formulation was permissible as such. So far as concerns the factual core, it must be borne in mind that the protective area of Art 5 para 1 of the Basic Law also extends to statements of facts in so far as they can assist formation of opinion by third parties, in that they may, for instance, be aimed at enabling the reader to make his own judgement about conduct described (references omitted). The same applies for a statement in which facts and opinions are mingled and which is shaped as a whole by the elements of comment, viewpoint or thought (references omitted). Both apply here, so that because of the nature of the message a balancing exercise between the competing basic rights is required.
16 2. a) The appeal court has given no reasons for not undertaking the balancing exercise required in principle by the above observations. It has merely stated that the fact that the claimant’s parent was Ulrike Meinhof ought not to be expressed by the potent catchphrase “terrorists’ daughter”. The claimant had given no consent to reducing her relationship to her mother and her parentage to “terrorists’ daughter”. She did not therefore have to put up with this description. If the appeal court intended thereby to assess the statement as impermissible abuse or insult in the formal sense, and if this was so, then no balancing exercise would in fact have been necessary, regardless of classification as assertion of fact or expression of opinion, because statements of this kind are in principle impermissible; and therefore in such cases freedom of opinion must as a rule take second place (references omitted). On this ground, strict standards are to be applied to the assessment of a statement as abuse, because otherwise a disputed statement would be removed from the protection of freedom of opinion without any balancing exercise occurring, and such freedom would thereby be impermissibly reduced (references omitted).
17 According to the principles developed by the Federal Constitutional Court and the Federal Supreme Court (Bundesgerichtshof) in numerous decisions for assessing a confrontation between the general right of personality and freedom of expression of opinion the statement objected to does not in its actual context constitute abuse or insult in the formal sense.
18 b) As the purpose of every public statement contributing to the formation of opinion is to arouse attention, catchy and even potent formulations must be accepted, in view of the overstimulation of today’s world (reference omitted). That also applies to statements which consist of sharp and disparaging criticism, which are expressed with exaggerated polemic, or which are formulated in an ironical way (references omitted). The critic may in principle express his opinion even if others regard it as “wrong” or “unjust” (references omitted). The form also in which the opinion is expressed can be determined by its author, and this is protected by Art 5 para 1 of the Basic Law (reference omitted). If the author is not pursuing self-interested goals and his contribution is promoting the intellectual conflict of opinions in a question affecting the public in a substantial way, there is a presumption that the statement is permissible; an interpretation of statutes restricting freedom of opinion which places excessive requirements on the permissibility of public criticism is not reconcilable with Art 5 para 1 of the Basic Law (references omitted). Further, for assessing the scope of basic right protection under Art 5 para 1 sentence 1 of the Basic Law, the decisive question is whether and to what extent the person affected by the statements has taken part in the process of formation of public opinion which is protected by Art 5 para 1 of the Basic Law, and has thereby chosen to subject himself to the conditions of a battle of opinions, and by such conduct has exposed a part of his private sphere which deserves protection (reference omitted). It is only when the prominent thing in a statement is not discussion of the issue but disparagement of a person which goes beyond polemical and exaggerated criticism so that he is so to speak pilloried, that the statement — even if it concerns a question substantially affecting the public — must as a rule give way to the right of personality of the person affected (references omitted).
19 c) No such intent to abuse aimed at the claimant as a person and displacing reference to the facts, nor any insult in the formal sense, can be deduced from the statement objected to. It must be borne in mind here that according to constant case law, a statement should not be assessed on its own but in the overall context in which it occurred (references omitted). In this respect it is significant that the article takes up accusations which the claimant has made against the Berlin hairdresser U W and the former Foreign Minister Fischer. In both cases the accusations referred to their conduct at the time of the “68s” — ie the RAF. The background to the article published by the defendant is thus the claimant’s own publications about this period in which she has discussed the phenomenon of RAF terrorism and the conduct of other persons known to the public at this time in a manner directly affecting the public. It is in relation to these persons that the article has made a reference to the former life story of the claimant as the daughter of the terrorist Ulrike Meinhof. In these circumstances, the defendant’s article is a report, which is in principle permissible, in the context of a conflict of opinions which has been fought out publicly. What is in the foreground here is not defamation of the person affected, but debate about the issue. If within the framework of such a discussion the claimant is described as a terrorists’ daughter, this can — especially in view of the tone adopted by the claimant herself in her relevant publications, which the appeal court has also subjected to a critical assessment — at any rate in the actual context of the article not be regarded as impermissible abuse. The defendant’s freedom of expression of opinion does not therefore have to give way from the outset to the claimant’s right of personality.
20 3. In the balancing exercise accordingly required, it can be said in support of the claimant’s claim to her right of personality that the statement objected to is formulated in a sharp and polemical way and undoubtedly does not fully describe the claimant’s personality, especially as she only lived together with her mother for the first seven years of her life, and had no contact either with her mother or with other RAF members after her mother had gone underground. Therefore this statement both in its factual content and in its actual formulation represents a grave personal charge against the claimant.
21 On the other hand, on the side of freedom of opinion it has to be borne in mind that from the defendant’s angle it is a question of an article of public interest which was to contribute to the formation of opinion in the evaluation of questions which the claimant herself has brought into the public arena by her statements about U W and the former Foreign Minister Fischer and by other publications. The background of the author’s personal life was of importance for the assessment of these. The claimant has also not kept her parentage secret, but has mentioned it in numerous publications. According to the case law of both the Federal Constitutional Court and of this Senate no-one can rely on the right to privacy in relation to facts which he himself has revealed to the public (references omitted). Therefore where the person affected has shown himself to be in agreement that certain matters which are usually private should be made public, protection of the private sphere from public attention cannot apply, or at least can give way within the framework of the balancing exercise. Any expectation that other people will not take notice, or only in a limited way, of matters or forms of behaviour in an area which has the function of providing a retreat must be expressed consistently and so as to cover the situation fully (references omitted). That is lacking here.
22 Finally it must also be considered that the claimant, by the type and subject-matter of her publications, has herself provoked a discussion about her journalistic activities, and the defendant was allowed to contribute to the formation of third parties’ opinions in this connection. In the required overall balancing exercise of all these circumstances, the formulation chosen by the defendant appears to be permissible in the actual context, and therefore not unlawful. The claimant’s professional position as a journalist is, contrary to the appeal court’s view, not of importance in this respect, because here it is not a question of limiting the claimant’s journalistic activity, but of whether the defendant’s basic right to freedom of opinion can be restricted by a claim to an injunction.
23 4. Following all this, the appeal court judgment cannot remain. As the facts to be assessed are established, and therefore further elucidation of the matter is not necessary, the Senate can make a conclusive decision on the basis of its own balancing exercise.
5. The decision as to costs is based on ¿¿ 97 of the Civil Procedure Order.