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Case:
BVerfGE 54, 208 1 BvR 797/78 Böll-decision
Date:
03 June 1980
Judges:
Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Judge Dr. Faller, Dr. Niemeyer, Dr. Heußner
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:
1. On the significance of the general personality right protected by Article 2(1) taken together with Article 1(1) Basic Law.
2. The fundamental right to freedom of opinion (Article 5(1) Basic Law) does not protect inaccurate quotation.
3. Nor does Article 5(1) Basic Law justify representing as a quotation an interpretation reasonable to the average reader or hearer of an ambiguous statement by the criticized person, without making it clear that this is an interpretation by the critic.

Order of the First Panel of 3 June 1980 -- 1 BvR 797/78 --
in the proceedings on the constitutional complaint of Mr Heinrich B.
-- Attorneys: Advocates Professor Dr. Robert Ellscheid and Dr. Sigmar-Jürgen Samwer, Riehler Strasse 21, Cologne 1 - against the judgment of the Federal High Court of Justice of 30 May 1978 - VI ZR 117/76 --.

DECISION:

The Federal High Court of Justice judgment of 30 May 1978 - VI ZR 117/76 - infringes the complainant's fundamental right under Article 2(1) taken together with Article 1(1) of the Basic Law.

The judgment is set aside. The case is referred back to the Federal High Court of Justice.

The Federal Republic of Germany shall reimburse the necessary expenses to the complainant.

EXTRACT FROM GROUNDS:

A.

The constitutional complaint concerns the question of the significance of the general personality right (Article 2(1) taken together with Article 1(1) Basic Law) and of the fundamental right to freedom of opinion (Article 5(1) Basic Law) in assessing the presentation of statements in a television commentary.

I.

1. The complainant is a writer; the defendants in the initial case were television commentator X - defendant 1 - and the station Freies Berlin - defendant 2.

In November 1974 the President of the Berlin Court of Appeal was murdered by terrorists. The State ceremony on the occasion of his funeral was reported inter alia in the television journal of the Deutsches Fernsehen of 21 November 1974. This was followed by a commentary in which defendant 1 critically discussed the intellectual and political "climate" in the Federal Republic and the attitude of intellectuals and politicians to the problem of radicalism: they shared considerable responsibility in the fact that a murder had now come about. In this context he stated inter alia:

"The seed of violence had sprung up long before this murder happened. And whether the seed of violence springs up and how fruitful it is depends on the nature of the soil it is sown in. This soil was rank with the weed of ideology, of connivance, of fellow-travelling, of opportunism and of pussy-footing. Mourning the latest victim of the violence of radicalism should not prevent us from saying that quite clearly here, indeed it commands us to do so.

On pressing suspicion of complicity in the murder, a social worker and a vicar of the Evangelical Church were arrested. Their guilt has not so far been proven. But what has been proven is that the vicar was an active helper of the Baader-Meinhof Gang, and a prominent theology professor publicly termed this complicity the 'proper attitude of a disciple of Jesus'. The soil of violence was manured with the ill spirit of sympathy with the perpetrators of violence. For years, prominent publishing houses spewed revolutionary publications onto the book market. Heinrich Boell called the constitutional State against which the violence is directed a 'dungheap' and said that he saw only 'residues of rotting power, defended with ratlike rage'. He accused this State of pursuing the terrorists 'in a merciless hunt'."

2. The complainant, seeing himself as defamed by this commentary, sued the defendants for payment of damages of 100,000 DM.

a) While the Regional Court dismissed the suit, the Regional Appeal Court allowed it, for a figure of 40,000 DM. In justification it stated:

The statements ascribed to the complainant had been presented completely inaccurately (details).

b) The defendants' appeal was successful; the Federal High Court of Justice set the Regional Appeal Court judgment aside. In justification it stated:

The Appeal Court had rightly considered the question whether defendant 1 had cited the complainant accurately or not as relevant to the issue. The statements ascribed to the complainant were however largely covered by a defensible interpretation of his publications. The criticism bound up with them was, both in content and form and in means employed, within the sphere of freedom guaranteed to expression of one's own opinion in a television commentary by Article 5(1) Basic Law.

Anyone citing someone's statements in support of a criticism denigrating his personality must in principle reproduce them accurately. Whether the quotation met this condition was to be judged by how the average reader or hearer would understand on the one hand what the criticized person had said and on the other hand the quotation. Anyone quoting ought not to incorporate his criticism into the quotation in such a way as to represent the content of what had been said distortedly and to make it into his statement. For the quotation is not brought up for discussion as the critic's subjective opinion, but as a fact by which the criticized person had to be bound. On the other hand, the criticized person, if he had expressed himself ambiguously for the understanding of the average reader or hearer, could not expect that the quotation should represent his utterance precisely in the meaning in which he wanted it understood; in such a case a quotation was "accurate" even if it took a different meaning, defensible in accordance with the objective criterion referred to, out of what had been said. Were the risk of misunderstanding to be imposed on the critic even within these limits, then freedom of opinion would be inadmissibly restricted; protecting the personality of the criticized person did not require such a one-sided burden of risk if he had himself laid himself open to the danger of misunderstandings.

This substantive legal viewpoint, subject to review by the court of error, had not been taken sufficiently into account by the Appeal Court. The assertion that the complainant had in regard to the constitutional State said that he saw only "residues of rotting power, defended with ratlike rage" was not false. Admittedly, the complainant had been primarily concerned in the "Third Wuppertal Speech" with presenting his view of the role of art in society and the State, correcting society's attitudes of expectation as regards the freedom of art and bringing about an aware self-perception as a cultured State. But this changed nothing in the fact that his hearers could also have understood him to the effect that his contempt related to the State as such in its institutional manifestation. Equally not wrong was the accusation that the complainant had stated that this State pursued the terrorists "in a merciless hunt". While the accusation was directed primarily against part of the public media, in particular against particular press products, the trend and tenor of the article did not nevertheless run counter to an interpretation that the complainant was complaining that the members of the Baader-Meinhof Gang were also victims of a State apparatus dominated by hunting instincts; the fact that he had often been so understood was shown by public reaction to the publication. The complainant had also to put up with the argument that he had, not least by the manner of his argumentation, made understanding the intentions and objectives of his article, as he intended them, more difficult. Finally, the assertion that the complainant had called the constitutional State a "dungheap" was untrue; nevertheless, there was no separate infringement of the personality right since the other two quotations had not had their significance as pieces of support for the denigratory judgement about the complainant intensified by this change.

Nor did the time and means of the criticism justify the assumption that the complainant had had his personality right infringed. Denigratory judgements could not be inadmissible merely because others too would have merited them. It had certainly been appropriate here to take into account the fact that simply by its reach and its specific mode of operation television lends criticism particularly penetrating effect. Additionally, the place and time of the commentary had enhanced the negative effects for the complainant. In this objective position, it could only in special circumstances be permissible to raise the accusation at issue naming names. The constitutional guarantee of freedom of opinion and of broadcasting however required that political comment on television not be entirely forbidden this procedure. Given the complainant's particular closeness to the topic of the debate introduced by defendant 1 and the status the complainant had acquired as a spokesman on these matters it had been permissible for the defendant to have asserted his position at that place and at that time, especially since he was able to assume that the complainant had open to him possibilities of energetic rebuttal through the media.

II.

1. In the constitutional complaint the complainant alleges an infringement of his personality right which he sees as guaranteed by Article 1(1) Basic Law. In justification he adduces the following, referring to a legal opinion by Advocate Walter Seuffert:

If anyone, by factual assertions based on constitutionally inappropriate interpretive criteria, has a statement put in his mouth that he did not in reality make, this is an interference of great intensity with fundamental rights, hitting at the core of the constitutionally protected sphere of the personality. This must also have effects on the extent of review by the Federal Constitutional Court (further argumentation).

2. On behalf of the Federal Government, the Federal Minister for Justice stated that it was not intended to make a statement. Defendant 2 referred to the content of the documents; it followed therefrom that the complainant's rights had not been infringed.

B.

The constitutional complaint is justified.

I.

The constitutional complaint is directed against a civil judicial decision on a civil legal entitlement to compensation for damage. The Federal Constitutional Court has not to review the interpretation and application of civil legal provisions as such; all that is incumbent on it is to guarantee observance of the constitutional rules and criteria by the ordinary courts (BVerfGE 42, 143 [148] - DGB - with further references). Here the limits to its possibilities of intervention depend in particular on the intensity of the encroachment on fundamental rights: the more a civil judicial decision curtails requirements for free existence and activity protected by fundamental rights, the more thorough must be the constitutional review of whether such curtailment is constitutionally justified (decision of 13 May 1980 - 1 BvR 103/77 - art criticism - BVerfGE 57, 129 [135f.], with further references).

The challenged judgment of the court of error intervenes deeply in the sphere of fundamental rights of the complainant. While the extent of constitutional review in the event of a decision of dismissal cannot depend on whether the relief sought was directed only at restraint or else at retraction or condemnation to pay smart money (decision of 3 June 1980 - 1 BvR 185/77 - Eppler, BVerfGE 54,148 [152]), and in particular the amount of the damages asked for can have no decisive significance in this respect, nonetheless the objective weight of the infringement of personality right asserted by the complainant makes it necessary to go beyond the basic extent of constitutional review of civil judicial decisions. This follows from the specific nature of the utterances at issue: if these ought not to have been presented in the commentary the way they were, then the judicial finding that their representation was "not wrong" has to hit at the core of the complainant's personality sphere (cf. BVerfGE 43, 130 [136] - political pamphlet). Additionally there is the discriminatory public effect of the quotations complained of; the accusation of intellectual co-responsibility for terrorism is particularly capable of damaging personal honour. This is intensified by the fact that in this context the complainant is the only person mentioned by name. Also of essential importance is the particularly broad effect of television. It was already stressed in BVerfGE 35, 202 [226 f.] - Lebach - that television reporting as a rule interferes much more strongly in the sphere of the person concerned, even if it strives after objectivity and factuality, than does reporting by radio or in the press. This follows partly from the higher intensity of the optical impression, but also from the enormously greater reach that gives television a special position even by comparison with other media. The present case contains nothing that could lead to an assumption of lesser breadth-effect; still less so since the comment at issue was transmitted in immediate temporal connection with the daily television journal.

Given this factual position, while the Federal Constitutional Court cannot substitute its notion of the proper decision for that of the Federal High Court of Justice, and in particular has not to decide as to the objective justification of the criticism of the complainant made in the comment by defendant 1, on the other hand it is insufficient to confine review to the question whether the decision challenged is based on a view of the significance of the fundamental rights decisive for the judgment and the scope of their area of protection that is in principle wrong. Individual errors of interpretation should not be left out of account either (cf. BVerfGE 42, 163 [169] - Echternach).

II.

The judgment challenged contravenes Article 2(1) taken together with Article 1(1) Basic Law; the mode of presentation of the complainant's utterances at issue in the comment by defendant 1 is not covered by Article 5(1) Basic Law.

1. a) The attacks directed against the complainant in the commentary were of such a nature as to infringe the complainant's constitutionally guaranteed general personality right. This includes among other things personal honour and the right to one's own view; it also protects the bearer of the fundamental right from having statements placed in his mouth that he has not made and adversely affect his social recognition as defined by him himself (decision of 3 June 1980 - 1 BvR 185/77 - BVerfGE 54, 148 [153 ff.]).

To that extent, the person concerned can appeal to the general personality right in the event of an inaccurate, misrepresented or distorted presentation of his utterances too. Indeed, the right is particularly affected. As the Federal High Court of Justice correctly states, in a quotation it is not a subjective opinion of the critic that is put up for discussion, but a fact by which the criticized person must be bound. For this reason a quotation used in support of criticism is a particularly sharp weapon in the clash of opinion: in contrast with a recognizable expression of opinion, it has the particular persuasive and evidential force of a fact. If the quotation is inaccurate, misrepresented or distorted, it interferes all the deeper with the criticized person's personality right because he is, as it were, here being brought to testify against himself.

b) The view expressed in the commentary that the complainant is among those who had manured the soil of violence with the ill spirit of sympathy with the perpetrators of violence contains a public denigration of the complainant and therefore an attack on his personal honour. This must count all the more gravely for being supported by quotations. If, then, defendant 1 was wrong in asserting that the complainant had called the constitutional State a "dungheap" then this contains, besides the attack on honour, a further infringement of the general personality right. The same must apply to an altered presentation of statements of the complainant. The Federal High Court of Justice is right to stress in the decision challenged that the person quoting may not instil his criticism into the quotation in such a way that it presents the content of what is said in distorted fashion. This would contravene the right of the person quoted to his own view, part of which is being able oneself to determine how it is to be presented to third parties or to the public (cf. BGHZ 13, 334 [338 f.] - Schacht-Brief).

Whether the statement made in the commentary as regards the constitutional State, namely that the complainant had said that it was only "residues of rotting power, defended with ratlike rage" and that he accused that State of pursuing the terrorists "in a merciless hunt" contains accurate quotations was not decided by the Federal High Court of Justice. Instead, it assessed the quotations as "accurate" in accordance with the criterion, taken by it as a basis, of defensible interpretation by an average reader or hearer. This criterion cannot meet the requirements arising from Article 2(1) taken together with Article 1(1) Basic Law. For it largely denies the person quoted of decision on expression of his own view and replaces it by a possible appraisal by a third party. There emerges a broad range of interpretations capable of giving a statement a different coloration or tendency than that expressed by the person quoted (cf. BGHZ 13, 334 [339]), thereby adversely affecting the general personality right in the form of the right to one's own view and its expression. Whether and to what extent the critic's freedom of opinion can justify this is a question of the scope of Article 5(1) Basic Law.

2. It is from this fundamental right that the Federal High Court of Justice derives the supporting reasons for its decision. It regards the attacks on the complainant as covered by Article 5(1) Basic Law, even insofar as the quotations at issue are concerned. Insofar as this judgment relates to the views of defendant 1 presented in the commentary, there can be no constitutional objections to this. Where the Federal High Court of Justice takes the view that the representation of the complainant's statements by the defendant kept within the sphere of freedom guaranteed by Article 5(1) Basic Law, it cannot be followed.

a) Misquotations are not protected by Article 5(1) Basic Law. It cannot be seen that the constitutionally guaranteed freedom of opinion requires such protection. To the extent that value judgements are at issue in the public clash of opinion, in the interest of the process of public opinion-formation the presumption must be in favour of the admissibility of free speech, without regard to the content of the judgement (BVerfGE 7, 198 [212] - Lüth, and invariable case law). This does not apply in the same way to false factual assertions. Wrong information is not an object deserving of protection from the viewpoint of freedom of opinion, since it cannot promote the constitutionally intended objective of proper formation of opinion (cf. BVerfGE 12, 113 [130] - Schmid-Spiegel); the point can only be not to set the requirements on the duty of truth so tightly that the function of freedom of opinion is endangered or suffers thereby. An exaggeration of the obligation to truth and the concomitant sometimes heavy penalties could lead to restriction and crippling, particularly of the media; these could no longer carry out their tasks, in particular that of providing a public check, if they were to be subjected to disproportionate risk (cf. BGH, NJW 1977, p.1288 [1289] - bribery of parliamentarians). Neither public opinion-formation nor democratic checks can accordingly be made to suffer under the requirement to quote accurately. The task of information set in the interest of public opinion-formation would be missed were this not so, and the circumstances have nothing to do with public checks. Nor do time pressure or difficulties of verification play a part, as may be the case with other factual communications. Those presenting an utterance are not having any essential or even unacceptable difficulties or risks imposed if they are obliged to quote correctly. If, then, the presentation adversely affects the general personality right of the person whose statement is quoted, this interference is not covered by Article 5(1) Basic Law. Otherwise it would be permitted for the media in particular to be lax with the truth and leave rights of the person concerned out of account without there being any occasion, still less need, to do so.

b) It may certainly be hard for the courts in an individual case to see whether a statement has been presented properly or not. When the Federal High Court of Justice regards as decisive for this how the average reader or hearer understands on the one hand what the criticized person said and on the other the quotation, and when it also assesses as "accurate" a quotation that follows another interpretation of the utterance defensible in accordance with the criterion given, this may be seen as constitutionally dubious. In this way, a broad range of admissible interpretations must arise, no longer corresponding to what the person quoted wished to express, and no longer regardable as irreproachable presentation of what has been stated even in accordance with the usual rules of correct quotation, which however are put before the reader or hearer as a statement by the criticized person and thus arouse the impression of truth and objectivity. Whether the Federal High Court of Justice's criterion, which does not meet the requirements of Article 2(1) Basic Law - for instance in respect of the difficulties of demarcation - finds adequate support in Article 5(1) Basic Law need not be gone into. At any rate, the fundamental right to freedom of opinion does not justify presentation of an interpretation of an ambiguous statement by the criticized person, defensible when that criterion is applied, as a quotation without making it clear that this is an interpretation by the critic.

Quotation in support of a critical evaluation is, as said, a particularly sharp weapon in the clash of opinion, capable of intervening deeply in the personality right of the criticized person. This is still more true where the criticism is uttered in the press, on the radio, and in particular on television, with its broad reach. If given this position infringements of the general personality right are to be excluded as far as possible, this obliges the person making the quotation to make his own interpretation of a statement allowing of multiple interpretations recognizable as such. This brings presentation of the statement to the place where it belongs: out of the sphere of the factual into that of opinion. Infringement of the right to express one's own view is at any rate avoided. The hearer or reader can recognize that the matter is one of statement of an opinion, not communication of a fact. He is precisely informed and receives a reliable basis on which he can make his own judgement.

Nothing is changed in this duty, which exists for the sake of protection of the personality, by Article 5(1) Basic Law. It cannot be seen that comprehensive information and free opinion-formation would be restricted or public criticism subjected to unacceptable risks if those wishing to present a statement have to make it clear whether it is an exact representation or an interpretation of what has been said.

In the present case the Federal High Court of Justice, applying the criterion it took as a basis, took it that the complainant had in the "Third Wuppertal Speech" and the "Spiegel" article of 1972 expressed himself ambiguously and that his statements therefore allowed several interpretations. Any representation of these utterances had accordingly to be based on interpretation. It therefore ought to have been made clear that it was an interpretation by the commentator that was involved, which would have been possible without effort or loss of time. Instead, the commentary could only arouse the impression that unambiguous statements by the complainant were being presented. This mode of presentation was not covered by Article 5(1) Basic Law. But if, then, the protection of the fundamental right to freedom of opinion fails, infringement of the complainant's general personality right could not be excluded either. The Federal High Court of Justice has not given consideration to this legal position. It means at the same time that the statement, wrong according to its findings, that the complainant had called the constitutional State a "dungheap" takes on separate significance as an infringement of the general personality right (cf. a) above).

3. The judgment challenged is based on the mistake pointed out. It was therefore to be set aside. Insofar as in a new decision infringement of the complainant's general personality right is taken as a basis, it will also have to be verified whether in view of the constitutional position a severe interference or grave fault that can be regarded as a requirement for entitlement in civil law to compensation for damages for infringement of personality right can be assumed.

Judges: Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Judge Dr. Faller was unable to be present for signature. Dr. Benda, Dr. Niemeyer, Dr. Heußner.

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