HEADNOTES:

1. Questions enjoy the protection of the Basic Law's Art. 5(1), first sentence in the same manner as do value judgments.

2. Rhetorical questions are to be handled as statements. The distinction between genuine and rhetorical questions depends on whether the interrogative sentence is directed at obtaining an answer and is open to various answers.

3. In the case of honour-impairing questions, a balancing of the basic right of freedom of opinion against protection of personality is required.

Order of the First Panel of 9 October 1991 – 1 BvR 221/90 –
in the Proceedings Concerning the Constitutional Complaint of Mr. B... Against a) the 5 January 1990 Decision of the Superior Land Court in Frankfurt am Main - 1 Ss 243/89 - and the 3 February 1989 Judgment of the Wiesbaden District Court - 6 Js 15128/88 - 81 Ls –.

DECISION:

The 5 January 1990 Decision of the Superior Land Court in Frankfurt am Main - 1 Ss 243/89 - and the 3 February 1989 Judgment of the Wiesbaden District Court- 6 Js 15128/88 - 81 Ls - violate the Complainant's basic right under the Basic Law's Art. 5(1), first sentence. The decisions are vacated.

EXTRACT FROM GROUNDS:

A.

The Constitutional Complaint is directed against a criminal conviction for defamation through dissemination of writings.

I.

1. The Complainant was a representative of the Environment and Peace Task Force "EPTF" in the local affairs committee of a section of Wiesbaden. In this capacity, he sought to direct to the city administration a comprehensive, 14-point inquiry relating to a residence and nursing home for the elderly (hereafter "Home") located in his local district. The Home is organized as a corporation, with the city holding a majority of its shares. Upon initiation of the inquiry, the Task Force simultaneously published the 14 questions in an extra edition of its magazine "Outcry", which is distributed in the local district at irregular intervals. Under the Press Act, the Complainant was legally responsible for this extra.

The catalogue of questions appears under the typrographically emphasized headline, "Press Briefing". Under it appears the following text:

Acute Deficiencies at the AKK Residence and Nursing Home for the Elderly
"Our goal is a home where one can feel well" - words of the Home'sdirector at the Home's Christmas party last December. Currently, however, theHome appears to be very far from this goal. For years it had a good reputation,which now is endangered by developments that have occurred over the past year.The Environment and Peace Task Force on the AKK (hereafter "EPTF")now wants to have clarified through an inquiry what's going on and how existingdeficiencies can promptly be eliminated. Therefore, the following questions havebeen put:
1. Is it true that, through lack of personnel and inadequate qualification of the director of nursing care, acute inadequacies exist in the care of the Home's residents?
2. Is it true that during the night usually only three employees have to care for about 160 Home residents (among them about 100 who need nursing care)?
3. Is it right that those who need nursing care often, due to lack of personnel, can be bathed only every two weeks?
4. Is it correct that the supply of materials (e.g. diapers, cellulose wadding, etc.) for the nursing care stations proceeds so slowly and insufficiently that those who need nursing care often remain lying in wetness and are exposed to dangers to their health?
5. Does it occur that instead of proper nutrition "lumpy porridge" is administered via tubes, a practice which supposedly already has led to complications and even to hospitalization?
6. Is it true that - at the expense of the elderly - cutbacks in personnel are such that personnel can perform only the most absolutely necessary activities (and these in part only insufficiently)?
7. Does it occur regularly that nursing care personnel are put to work for up to 18 straight days (without a single free day)?
8. Do you agree with the assessment that the inadequacies addressed here as examples are due first to the shortage of personnel (e.g. reduction and layoff of extra help) and second to the nursing care director's inadequate qualification?
9. Is there a connection between development of the deficiencies named here since the spring of 1987 and the assumption of the nursing care directorship by the nursing care direction currently "in office"?
10. Is it true that, for the assumption of these duties in the spring of 1987, personal relationships played a more decisive role than qualifications?
11. Did the problems that must be clarified cause the unusually high fluctuation of qualified, trained personnel who had worked for years at the AKK Home?
12. Were contented, long-term personnel induced to resign through harassing and discriminatory treatment (e.g. statements that express enmity toward foreigners, intimidation through visits of the works council, etc.).
13. What measures have been or will be taken to promptly end the acute deficiencies at the AKK Home and to secure and restore the good reputation that it held for years?
14. What measures shall be taken to prevent, as far as possible, future negative developments?

The reason for the inquiry that the local affairs committee's EPTF members have begun is that the City of Wiesbaden is the chief shareholder in the nonprofit AKK Residence and Nursing Home for the Elderly Corporation. The City's representatives, therefore, have a majority in the the corporation's administrative council. Since the institution has a social mandate to fulfill - especially in relation to the elderly in the Home - it is the task of those who are politically responsible to guarantee at the Home both humane and proper care and obedience to the protective statutory provisions.

The Home's Manager, Director, and Nursing Care Director brought a special criminal complaint against the Complainant. In addition, the Nursing Director successfully made use both in the expedited preliminary proceedings and in the main action of her right to have the Complainant enjoined.

2. The District Court allowed the Home's Director and Nursing Care Director to join the criminal action as Co-plaintiffs. It convicted the Complainant of defamation and sentenced it to pay a fine consisting of DM 80 per day for 75 days. The court further ordered it to pay the cost of the proceedings and the necessary costs and fees paid by both Co-plaintiffs, and ordered that upon request by the Co-plaintiffs the judgment be published in several of the publications sold in that section of the city. The District Court in essence reasoned as follows:

Although the published article was set in question form, the Complainant had made factual assertions upon which evidence could be taken. The first indication of this was the headline, which lacked a question mark. Additionally, its assertory character was evident from its mention of "existing", "named", and "acute" deficiencies as well as of inadequacies addressed "as examples". Further, the richness of detail in the individual questions led a normal reader to the conclusion that these were assertions that stemmed from exact information or research. Only questions 13 and 14 were "genuine" questions; questions 2, 3, and 11 were of course assertions, but they were not capable of demeaning the Co-plaintiff in terms of public opinion. Question 1 was identical in content to question 8.

With questions 4 through 10 and 12, the Complainant had fulfilled the elements of defamation (§186 of the Criminal Code) in the aggravated form of public commission through dissemination of writings. The assertions contained in the questions were formed in such a way that the normal reader would have to gain the impression that those in charge were personally incapable of running the Home, and were responsible for serious deficiencies. For the normal reader, at least the Home's Director and Nursing Care Director would be seen as those in charge. They were identified in the publication, although not by name, certainly by their functions.

Only if the degrading assertions could be proved true would any possibility of punishment of the Complainant be excluded. But they had not been proved true. Over a span of nine days, the District Court had taken evidence concerning each individual point. In each instance, the facts found admittedly offered points of reference for the Complainant's questions, but in the District Court's opinion they did not satisfy the standard for proof of truth.

The District Court further explained that the Complainant could not rely on the Criminal Code's "safeguarding legitimate interests" justification. Where an article led to injury of another person's honour, limits were drawn upon both the press's right to publish and its interest in publishing; the greater the risk that the injurious assertions would prove to be untrue, the narrower these limits were drawn. Such was the case concerning publications based on unreliable or dubious information that was not checked through investigation. The press in a given case would have to refrain from publication if the minimum elements required for proof of the information's truth had not been gathered. The Complainant's showing did not even allow a review of the reliability of the information that would have been available to it prior to publication. The alleged deficiencies were not so serious that they had to be made public immediately, without closer review. One also had to take into account that already a potentially necessary remedying of inadequacies had been set in motion by the Complainant's inquiry.

The Superior Land Court rejected the Complainant's appeal on points of law as clearly unfounded.

II.

In its Constitutional Complaint, the Complainant alleges a violation of its basic rights under the Basic Law's Art. 5(1), first sentence; Art. 5(1), second sentence; and Art 2(1) in connection with Art. 1(1). It argues in essence as follows:

The District Court failed to perceive that a court already must take account of the protective content of the Basic Law's Art. 5(1) when it is establishing the meaning of the statement itself, and may not wait to do so until it is balancing the competing interests. Art. 5(1) was infringed by the District Court's interpretation of the questions as factual assertions. Of course it was possible to set forth factual assertions in the form of rhetorical questions. But it was evident that this had not occurred in the catalogue of questions. If, despite the text's unambiguous grammatical structure, one were to accept the false accusation that these are not questions at all, then the consequence would be an erosion of the basic rights of freedom of opinion and freedom of the press. These rights also protected the linguistic form chosen here. Hence it violated Art. 5(1) to give the statement a meaning that was neither expressed nor desired.

Even if one wished to deny that the inquiry's statements had the character of questions, nonetheless expressions of opinion, rather than factual assertions, still predominated. Additionally, it was significant that a matter of public interest was at issue.

In addition, because the "Outcry" constituted a product of the press, the Complainant's basic right under the Basic Law's Art. 5(1), second sentence was infringed.

III.

1. The Hessian State Chancellery believes that the Constitutional Complaint is well-founded, and has argued as follows. The significance and reach of freedom of opinion would be misperceived if a statement were inaccurately categorized as a factual assertion, a formal vilification, or an insulting criticism and, as a result, were not allowed to partake of the protection of freedom of opinion. The contested decisions failed to satisfy even these demands. They lacked analysis of the meaning and purpose of the Complainant's statements. They did not provide convincing grounds that would exclude a judgment different from the one reached by the District Court.

The judgments also failed to do justice to the Basic Law's Art. 5(1), first sentence. Through its inquiry the Complainant had pursued a matter of social importance. Particularly in recent years, the crisis in care for the elderly and the potential deficiencies associated with it had repeatedly been discussed publicly. The District Court ignored that in light of this the Complainant deserved heightened protection under the basic right. In this context, two elements of its decision were incomprehensible: first, that it drew a distinction between the inquiry in the local affairs committee and the the public dissemination of the inquiry's text; and second, that it saw in of all things the flyer's distribution the wrong that incurred liability. Given Art. 5(1), the Complainant could not be prevented from drawing public attention to its initiative in the local affairs committee.

Even if one emphasized the constitutional protection of personality, one had to keep in mind that, as the evidence had shown, the Complainant's critical questions had contained a true factual core. To the extent that the District Court had reproached the Complainant for insufficiently reviewing the truth content of its accusations, it had ratcheted the demands placed on the duty of inquiry too high, since the Complainant had had at its disposal no means other than discussions with witnesses. Potential deficiencies could be cleared up only when overstated and critical questions were asked.

2. The Co-plaintiff Nursing Director defends the contested decisions and points out that the civil courts reached equivalent decisions in both the expedited preliminary proceedings and the main proceedings. The Complainant allowed these decisions to become res judicata, which showed that it believed that an appeal would be futile.

B.

I.

The Constitutional Complaint is permissible. However, regarding the allegation of a violation of the Basic Law's Art. 2(1) in connection with Art. 1(1), the Complainant has not satisfied the demands that flow from §§23 and 92 of the Federal Constitutional Court Act, because it has not demonstrated the possibility of such a violation.

II.

The Constitutional Complaint is well-founded. The contested decisions violate the Complainant's basic right under the Basic Law's Art. 5(1), first sentence.

1. The basic right of freedom of opinion provides the standard of review. As set forth in greater detail in a separate decision today (1 BvR 1555/88), this right is implicated when the permissibility of a statement is at issue, even when it is contained in a press publication.

2. Because the contested decisions classified the Complainant's statements in controversy as untrue factual assertions, and therefore placed them outside of the basic right's protection, this Court may comprehensively review the assumptions upon which this classification is based (cf. BVerfGE 82, 272 [280f.] and citations therein).

3. The criminal courts incorrectly withheld from the statements in controversy the protection of the Basic Law's Art. 5(1), first sentence. Of course it is true that the basic right of freedom of opinion does not protect factual assertions that are either known or proved to be untrue (cf. BVerfGE 61, 1 [8] ). The Complainant's statements framed as questions, however, are not such factual assertions.

a) The basic right of freedom of opinion guarantees to everyone, without expressly distinguishing between value judgment and factual assertions, the right to freely express opinions. Value judgments always involve expressions of opinion. On the strength of this alone, therefore, and independent of their content and their bases, they are protected by Basic Law's Art. 5(1), first sentence. In any event, factual assertions, which strictly speaking are not expressions of opinion, enjoy the basic right's protection to the extent that they are a prerequisite for the formation of opinions (cf. BVerfGE 61, 1 [8]). This Court has not yet decided whether questions also partake of the basic right's protections and, if so, how they are to be classified.

Questions differ from value judgments and factual assertions in that they do not themselves make a statement, but rather seek to generate a statement. They are directed at obtaining an answer. The answer can exist as a value judgment or as a communication of facts. Questions, in contrast, cannot be placed in either category, but instead form their own semantic category. But they do not as a result fall outside the basic right's protective scope. This follows from the right's protective purpose. The Basic Law guarantees free expression of opinion because this is both a direct expression of the human being and the indispensable prerequisite of a democratic order (cf. BVerfGE 7, 198 [208]). Thus Art. 5(1)'s basic right does not exhaust itself in protection of individual statements, but seeks to comprehensively secure free individual and public formation of opinion (cf. BVerfGE 57, 295 [319]). But questions play an important role in the process of opinion formation. When they direct attention to problems and generate answers, they contribute to the formation of opinions, which themselves can then be stated. This is all the more important since, in many areas that significantly concern or impact the public, the individual does not have at his disposal the information needed to form an opinion, leaving only the possibility of critical or probing questions. If questions lacked the basic right's protection, then the communication process, which Art. 5(1) seeks to protect in its entirety, likewise would lack adequate protection.

Therefore, the Basic Law's Art. 5(1), first sentence protects questions as well as value judgments and factual assertions. In contrast to factual assertions, however, questions cannot be incorrect (cf. J. Walther, Logik der Fragen [Logic of Questions] (1985), p. 30 ff.). Admittedly, every question, in relating to its object, contains spoken or unspoken factual or evaluative assumptions that the questioner wants to have verified or clarified. To that extent there are no pure questions, devoid of all aspects of a statement. But precisely because the questioner wants to know what is right or wrong, true or untrue, and thus remains open to various answers, the question cannot be evaluated using the criteria of truth or untruth. This also is true when a question relates to facts that subsequently turn out not to be mistaken. From the perspective of freedom of opinion, therefore, questions are equivalent to value judgments.

Yet not every sentence framed as a question is to be viewed as a question. To this extent questions must be distinguished from interrogative sentences (cf. Walther, supra, p.24 ff.; D. Wunderlich, Studien zur Sprechakttheorie [Studies In Speech Theory] (1976), p.181 ff.)). Questions can be framed as declarative sentences, and statements can be framed as interrogative sentences. Further, it can be that in an interrogative sentence assertions are made that do not relate to the questioner's desire for clarification. If an interrogative sentence is not directed at obtaining an answer from another person or is not open to various answers, then - despite its common characterization as a "rhetorical question" - it is in fact not a question at all (cf. Walther, supra, p.26 ff.). Interrogative sentences or portions thereof that are not expressed for the sake of an answer - the content of which is as yet undetermined - instead form statements that represent either value judgments or factual assertions. They are to be dealt with legally as such.

To be sure, the distinction between genuine and rhetorical questions can raise difficulties, because from the linguistic form alone one cannot draw reliable conclusions. The categorization must in a given case be made with the help of the context and circumstances in which the utterances were made. Because the the breadth of the basic right's protection depends on the result of the categorization, to this extent Art. 5(1), first sentence requires that the reasons for deeming an interrogative sentence to be a rhetorical question be given. If an interrogative sentence permits several interpretations, under one of which it appears to be a genuine question, and under the other of which it appears rhetorical, then the courts must weigh both interpretations and give reasons for its choice of one over the other. A high degree of specificity does not by itself suffice to prove the question's rhetorical nature. Of course, the more detailed a question is, the greater its share of statements related to the questioner's desire for clarification. But a large share of facts does not by itself make a question into a factual assertion. Even concerning highly specific interrogative sentences, their classification as genuine or rhetorical questions depends only on whether the question aims to receiving an answer whose content is not yet known, or whether by placing it the questioner already has satisfied the utterance's purpose. In case of doubt, one must, in the interest of an effective basic right protection by the basic right, take as a starting point a broad conception of the term "question" - just as is the case with the term "opinion" (cf. BVerGE 61, 1 [9]).

The Basic Law, however, does not guarantee freedom of opinion without reservation. Instead, under Art. 5(2) its limits are drawn by the basic statutes, by statutory provisions for the protection of youths, and by the right of personal honour. These provisions, however, must themselves be interpreted in light of the limited basic right, so that that right's value-setting significance also affects the law's application (cf.BVerfGE 7, 198 [208 ff.]; consistent holdings). Usually this leads to a case-specific balancing of the basic right of freedom of opinion against the legal interest that is protected by the statute limiting that right.

The same is true with questions. In particular, it is possible that questions will harm another person's personal honour. This is the case especially when a question's underlying or unspoken factual assumptions impair one's honour. To this extent, in the case of expressions of opinion in which value judgments and factual assertions are inseparably intertwined, the critical issue can be whether the questioner possessed some foundation for his question's factual and honour-impairing intellectual content, or whether he plucked them out of thin air (cf. today's other decision - 1 BvR 1555/88 –). Here, however, one may not make demands that could deter use of the basic right. It would not be compatible with Art. 5(1)'s protective purpose if, regarding a question of essential concern to the public, a citizen who sought clarification and review of possible deficiencies were faced with the alternative either of investigating by himself or of completely abandoning the inquiry. Therefore, the presumption in favor of free speech (cf. BVerfGE 7, 198 [212 ff.]) applies also for questions.

b) Measured against these principles, the criminal courts' judgments cannot withstand constitutional review. The District Court did provide reasons for its conclusion that the questions in controversy were, in truth, untrue factual assertions. But these reasons do not satisfy the demands of the Basic Law's Art. 5(1), first sentence.

In the District Court's view, the questions' assertory character was apparent, first, from the formulation of the extra edition's headline as a statement rather than as a question. The introduction's text likewise suggested factual assertions. It spoke of the Home's good reputation being endangered by "developments that have occurred over the past year". It, and questions 9 and 13 as well, spoke of "existing", "named", and "acute" deficiencies, and question 8 spoke of inadequacies addressed "as examples". Second, the court concluded from the questions' richness of detail that they would have to affect the reader as though they were assertions that stemmed from exact information or research.

For the reasons explained above, this second point cannot support a finding that the questions have the character of assertions. Even for very detailed questions, the basic right's protection depends only on whether they seek an answer and are open to various answers. The points relied upon by the District Court do not suffice to answer this question negatively. It is true that the extra's headline does give the unbiased reader the impression that deficiencies exist, and not that the publisher merely fears that they exist. It also would not have been difficult to clearly express in the headline, with the aid of a question mark, the whole publication's questioning character. Yet one cannot demand from a press article's headline the unshortened rendering of the article's content. It is not that the headline has no significance for an understanding of the article; but it molds the article's intellectual content far less than the text itself.

As far as the introduction to the catalogue of questions is concerned, the District Court did not sufficiently acknowledge that it clearly sets forth the need for clarification regarding the "developments of the past year". The sentence that demands information on how "existing deficiencies" can promptly be eliminated likewise introduces an intent to clarify. In this context, the possibility at least cannot excluded that the "existing deficiencies" are to be understood as those brought to light through the clarification, i.e. as the potentially existing deficiencies. The individual questions to which the District Court objected, despite their various definitive-sounding passages, do not, taken as a whole, allow the conclusion that the Complainant, rather than seeking an answer, already had fulfilled his objective simply by placing the question. Even if this does not remove all doubt as to the interrogative character of questions 4, 10, and 12, in any event the broad conception of the term "opinion" that is mandated by the constitition speaks against classifying the statements as factual assertions.

4. The Complainant's conviction rests upon improper recognition of the significance and consequence of the Basic Law's Art. 5(1), first sentence. Because the catalogue of questions enjoys this basic right's protection, in interpreting and applying the Criminal Code's §§185 et seq. the criminal courts will have to weigh the concerns of protection of honour, which the criminal law safeguards, against the Complainant's basic right of freedom of opinion. Here, as explained above, a significant point could be whether the Complainant had some foundation for those factual elements in the questions objected to that, the District Court's view, were belittling. The demands placed on this foundation, however, cannot be set so high that they hinder discussion of a question that is of essential concern to the public - be it only the local public - or produce a deterrent effect upon the basic right of freedom of opinion's use.

Because the Superior Land Court rejected the appeal on points of law without opinion, its decision suffers the same deficiency as that of the District Court.

Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.

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