HEADNOTE:

Justification and privilege also covers replies in the press that correspond to the nature of a press attack and its effect on public opinion-formation (Article 5(1) and (2) GG; para.193 StGB).

Order of the First Panel of 25 January 1961 -- 1 BvR 9/57 --
in the proceedings on the constitutional complaint of Regional Appeals Court President . . . - Attorney: Advocate . . . - against the judgment of the Göttingen Regional Court of 11 January 1956 - 6 Ps 26/55 - and against the judgment of the Celle Regional Appeals Court of 24 October 1956 - 1 Vs 5/56.

DECISION:

The judgment of the Göttingen Regional Court of 11 January 1956 - 6 Ps 26/55 - and the judgment of the Celle Regional Appeals Court of 24 October 1956 - 1 Vs 5/56 - infringe the complainant's fundamental right under Article 5(1) of the Basic Law, and are set aside.

The case is referred for further hearing and decision to the Düsseldorf Regional Court.

EXTRACT FROM GROUNDS:

I.

1. In November 1953 in Stuttgart the complainant gave a talk on the political strike, which he published in January 1954 in somewhat revised form in the trade union monthly journal under the title "On the political strike". His statements about the justification of the political strike and his assertion that some 95 % of the press was economically dependent on employers and therefore hostile to trade unions led to press attacks against the complainant in which suspicion was cast on him of a leaning towards communism and his suitability for high judicial office doubted.

In this connection the Stuttgart correspondent of the weekly magazine "Der Spiegel" sought and secured an interview with the complainant.

. . .

He gave the journalist some newspaper articles and writings published by him from which it was apparent he had decisively opposed communism .

. . .

Thereupon the journalist - without using this material handed to him - wrote an article, published anonymously in the "Spiegel" for 10 March 1954 under the heading "Arrested on the Volga". This article contains no discussion of the complainant's theses on the political strike, but deals with his talk and his political past from the viewpoint of his political attitude. The parts of the article of relevance to the present proceedings read as follows:

". . . The opponents of Dr. Schmid wish to draw from his questionnaire the conclusive proof that there is a markedly red thread running through the political life of the highest Baden-Wuerttemberg judge. The occasions for this delayed action exegesis of the questionnaire were:

a talk . . .

the reprint of this talk . . .

Specifically during his last holiday in October 1953, the President of the Regional Appeals Court had been so concerned with the burning issue of the political strike that, irrespective of his high independent office which imposes upon him as prime duty the guarding of the existing legal order, he declared revolutionary changes to existing legal orders legitimate . . .

In the 'Gewerkschaftliche Monatshefte' Schmid mentions as an example of historically legitimate strikes the fight for the introduction of universal equal suffrage in Britain, Belgium, Austria and Sweden, and in his talk to party and trade union officials of the Stuttgart SPD Monday Club he had mentioned the Russian October Revolution (1917). For him, then, it was all the same whether
the revolutionary act of a political strike brought parliamentary democracy, or
it prevented development towards a parliamentary system (Kerensky 1917), or
it is directed against an already existing democratic order."

There follow statements that these "attempts, to say the least remarkable for such a high judge, to declare the illegal political strike lawful", would scarcely have been noticed by the public had the complainant not simultaneously attacked the press for its alleged dependency on financially powerful advertisers. The article then returns to the complainant's political past:

"Schmid's past is indeed a lively one. Now 54 years of age, he was until 1931 'completely unpolitical and with only literary' interests. 'But that changed when I saw the Hitler business coming'.

As an advocate, associated among others with present Justice Minister for Baden-Wuerttemberg Dr. Wolfgang Haussmann (FDP), he came into contact with the political resistance. This was later to bring him before the People's Court in Berlin and almost to the gallows. Justice Minister Haussmann is now protecting his old comrade Schmid against all attacks because of the article on the strike."

There follows a list of details from the complainant's life in the period from 1932 to 1945, including his votes at Reichstag elections and a trip to the Soviet Union in 1935.

. . .

Further, a number of press attacks are reprinted verbatim, including the assertion of then director of the CDU press office in Baden-Württemberg, Hein-Ullrich Carl, that the complainant had

"repeatedly sought to help Left Radicals. For instance, in the Angenfort case.

In March 1953 Schmid had protested in a fairly long article against the waiving of the immunity of North Rhine-Westphalia Communist Party parliamentarian Jupp Angenfort. The Communist press had given strong emphasis to the article: 'All right-thinking people must, like the Stuttgart Attorney-General, raise their voices against this violation of the law . . ."

Even then the CDU press service was asking the probing question why Schmid in particular was 'raising his voice' . . .

This time the fight is being fought still harder. Not with the rapier, but with very heavy sabres:

On 15 February Bundestag member Artur Jahn wrote in the CDU press service:

"In view of this position, the Justice Minister (Schmid's former associate Dr. Wolfgang Haussmann) must be asked the question whether he identifies himself with Dr. Schmid's proceedings and positions, or what steps he intends to take in order to restore trust in the impartiality of the judiciary, rendered dubious by the Regional Appeals Court President's political activity. . . ."

The article closes with the following section:

"Press chief Carl has stirred the Schmid affair up into a great matter. All the same, it will be hard for him to 'shoot him down'. 'You know,' says Richard Schmid himself, 'I'm too high up now.' For the third in the league alongside Schmid and Justice Minister Haussmann, ex-Minister-President Dr. Reinhold Maier, had appointed him Regional Appeals Court President shortly before his - Maier's - departure, thereby making him an irremovable judge."

On 17 March 1954 the complainant published in the Stuttgart "Allgemeine Zeitung" a reply, which the editors gave the heading: "The bigger the boots . . ." and the sub-head "You can do better out of knocking copy". . . . The text written by the complainant is as follows:

"You ask me what I have to say about the 'Spiegel' article about me. It is gossip about my person; the matter itself, the political strike, is barely touched on, for instance with the ill-considered statement that it is 'an attempt to declare the illegal political strike lawful'. As with gossip, the true, the false and the distorted is mixed in motley fashion. Since wicked gossip is more interesting, the wicked part is predominant. It is, for instance untrue that I had protested in an article against waiving the immunity of parliamentarian Angenfort. I have never, whether in an article or otherwise, protested against waiving the immunity of parliamentarian Angenfort. That is a lie that was long ago refuted. I once dealt officially and journalistically with the question whether the immunity of a Landtag member applied vis-à-vis the Federal authority too. At the time I knew nothing about the Angenfort case. The question has since been decided by the Federal legislature itself, in the sense I advocated. Equally false is the assertion that in my talk about the political strike I mentioned the October Revolution (1917). Thank God I still have the manuscript of my talk, to which I kept word for word. I do not know who came up with the lie; 'Spiegel' passes it on. There are innumerable deliberate distortions and also misrepresentations from incompleteness. This is a genre of journalism which is in the sphere of politics what pornography is in the sphere of morals, but with the distinction that the former can still be read openly. It is known as knocking copy, which is apparently necessary in the book-keeping of civilization. It is the amount of sales that is the decisive aspect. As for the quality that comes out, it cannot be put better and more simply than did Karl Kraus: 'The bigger the boot, the bigger the heel'."

2. a) On 20 June 1954 the editor-in-chief of the Germany section of the "Spiegel", and on 23 July 1954 the publisher too . . . brought a private prosecution against the complainant for calumny and defamation. . . .

The Court, on 24 January 1955, sentenced the complainant for calumny (para.186 StGB) to a fine of 350 DM, awarding the bringers of the private prosecution authorization to publish. On appeal by the complainant, the Regional Appeals Court quashed the local court's judgment and referred the matter to the magistrate. . . . He acquitted the complainant, in a judgment of 24 October 1955. While accepting the presence of defamation, he found justification and privilege.

b) On appeal by the bringers of the private prosecution, the complainant was sentenced by judgment of the Regional Court . . . to a fine of 150 DM or one week's arrest for defamation. The bringers of the private prosecution were awarded authorization to publish.

The Regional Court finds that the first part of the complainant's article was directed only against the so-called Volga article, not against the "Spiegel" as a whole, and therefore accords the complainant the protection of para.193 StGB [justification and privilege]. . . .

By contrast the comparison with pornography and the assertion that the amount of sales was the decisive factor for the "Spiegel" were directed not only against the Volga article but against the magazine itself. They contained a value judgement that constituted the offence of defamation; for the denigratory appraisal of the contents of the "Spiegel" simultaneously contained a major attack on the honour of the private prosecutors as publisher and editor. Nor could this defamation be justified either as a judgement of censure or a statement in defence of legitimate interests [justification and privilege]. . . .

The complainant's criticism was not admissible as a judgement of censure . . . because such a judgement appeared justified only where it proceeded from the honourable endeavour to oppose objective errors or remove shortcomings, and where the criticism was subjectively true. . . .

Nor could the complainant appeal to justification and privilege either. . . .

The Regional Appeals Court rejected the complainant's appeal on points of law, in a judgment of 24 October 1956. . . .

3. It is against these judgments of the Regional Court . . . and the Regional Appeals Court . . . that the constitutional complaint is directed. It complains of infringment of Articles 1, 2, 5(1), 38(1) and 101(1), second sentence, GG. . . .

II.

1. The constitutional complaint is admissible insofar as infringement of Articles 1, 2, 5 and 38(1) GG is complained of. . . .

III.

It is also justified.

A court adjudicating about a defamation is, in the provisions on protection of honour of paras. 185ff. StGB, applying ordinary statutory law; its decisions are therefore in general withheld from review by the Federal Constitutional Court. They can be reviewed only as to whether in applying the provisions on protection of honour the orientation of the whole law to the value system of the Basic Law has been mistaken and fundamental rights of the person convicted thereby infringed. This is the case here. The judgments of the Regional Court and the Regional Appeals Court infringe the complainant's fundamental right under Article 5(1) GG because they misapprehend the constitutional importance of the formation of public opinion and consequently inaccurately assess the effect of the fundamental right of free expression of opinion on the interpretation and application of the provisions on protection of honour.

1. In its judgment of 15 January 1958 (BVerfGE 7, 198 [207ff.]) the Senate made it clear that the relationship between the fundamental right of free expression of opinion and the "general laws" that limit it is not to be seen as a one-sided restriction of the scope of validity of the fundamental right by these laws; "instead there is an interaction, in the sense that while the general laws as far as their tenor goes set limits to the fundamental right, they are in turn to be interpreted on the basis of the realization of the value-setting importance of this fundamental right in a free democratic State and thus themselves in turn limited in their effect of restricting the fundamental right." The Basic Law has assigned enhanced importance to the fundamental right to free expression of opinion. . . . Freedom of opinion as a direct expression of personality in society is one of the foremost human rights; that alone lends it particular weight. Moreover, the fundamental right is quite simply constitutive for the free democratic basic order, by guaranteeing intellectual conflict, the free clash of ideas and interests, which is a vital necessity for the functioning of this political system (cf. BVerfGE 5, 85 [205]; 7, 198 [208]). Only free public discussion on topics of general importance guarantees the free formation of public opinion, which in a free democratic State necessarily comes about "pluralistically" in the mutual clash of varying views, advocated for varying reasons, but at least presented in freedom, particularly in speech and reply. Every citizen has the right, guaranteed by Article 5(1), first sentence, GG to take part in this public debate. The press, alongside radio and television, is the most important instrument for forming public opinion; press freedom thus enjoys, pursuant to Article 5(1), second sentence GG, specific protection as a fundamental right.

The scope of the fundamental right to freedom of opinion must exercise an essential influence specifically in the weighing of interests commanded by para.193 StGB between honour and freedom of opinion - should viewpoints of public opinion-formation play a part. The Federal High Court of Justice takes this into account by treating the ground of justification of para.193 StGB as a "characteristic" of the fundamental right to free expression of opinion and taking the importance of public opinion-formation into account in its application (BGHSt 12, 287 [293f.]) and . . . recognizing the upholding of public interests by the press, having regard to its function in a democratic State, as being justification and privilege within the meaning of para. 193 StGB (BGHZ 31, 308 [312]).

From the viewpoint of an opposing effect that corresponds to the effect secured in public opinion, there is a delimitation constituted by punishable excess, determined also pursuant to the Basic Law.

2. In the present case the courts have wrongly seen the situation purely from the viewpoint of defence of personal honour and the emergency situation of interest arising out of defamation, without evaluating the specific nature of a feud waged in the press and the element of public opinion-formation intrinsic to it.

a) This comes repeatedly to the fore in the argumentation of the judgment of the Regional Court, not complained of by the Regional Appeals Court.

Thus, the question whether the complainant's reply in the press to the press attack by the "Spiegel" was the appropriate means of defence has in effect rightly been answered affirmatively. This result follows . . . directly from the importance of the fundamental right to freedom of opinion. A press attack always contributes to the formation of public opinion, so that - because Article 5(1) GG guarantees free debate and the free formation of public opinion - the appropriate response is likewise to affect public opinion, that is, to reply in the press.

Further, the judgment, in refusing compensation under para.199 StGB [immediate reply to defamation] the judgment on the one hand acquits the editor and publisher from responsibility for the anonymous attack by the Spiegel against the complainant, while on the other they are treated as those defamed by the counter-attack against the "Spiegel". As far as public opinion formation goes, an issue arises here that is not discussed in the otherwise detailed judgment. . . .

b) No definitive stance on the statements about compensation and judgement of censure is required. . . . For the judgments are in any case liable to be quashed because in refusing to accept justification and privilege they did not take account of the value decision of Article 5(1) GG.

c) In the complainant's statement at dispute, the "upholding of legitimate interests" appears in the form of an evaluation not only, if the factual findings of the Regional Court are followed, of the Volga article but of the "Spiegel" in general, at least in major parts of its publications.

Since the statement was not made as a spontaneous attack but in defence against the Volga article, the nature of the "legitimate interests" depends essentially on what interests that article affected. These were not only the complainant's personal honour. Instead, the "Spiegel", by examining the complainant's political past, had dealt above all with the topic of the occupation of high judicial office by an allegedly unsuitable person, that is, had taken a position on a conflict over personnel policy and the trustworthiness of justice into which, alongside the complainant, former Minister President Dr. Maier and Justice Minister Dr. Haussmann were drawn; this lies in principle within the framework of the public task of the press of informing the citizens about public matters. But then the upholding of the same public interest must be allowed to the complainant as justified in his press reply. This follows from the right guaranteed by Article 5(1) GG to every citizen of contributing through free expression of opinion to public opinion-formation.

The point here is not whether the complainant was initially concerned only with defence of his honour, so that he did not have the intention of making use of his "right to free expression of opinion vis-à-vis the 'Spiegel' as a phenomenon of public life". It is not only the motive that is decisive for the evaluation of a statement, from the viewpoint of public opinion formation. Statements of opinion, even in the press, are frequently determined by other motives than the endeavour to serve the public; personal evaluations and interests of the most diverse nature often enter in. Yet they serve information and contribute to public opinion-formation. Thus, in the complainant's statement too, along with defence of his personal honour, there also comes in the question alluded to by the "Spiegel", whether a high judge so close to communism as the complainant allegedly is had arrived at his office from nonobjective considerations and whether he continued to be acceptable in that office. It is accordingly disputed in the first part of the article that the portrayal by the "Spiegel" of the complainant's leaning towards communism is accurate, and in the last part, the one complained of, if the Regional Court's findings are followed, the comparison with pornography and the reference to the profit motive allegedly underlying this type of reporting throw the credibility of the "Spiegel" as such into doubt. The complainant is thus seeking to give proper guidance to the public falsely informed by the "Spiegel", underpinning this influencing of the public to oppose the Volga article by referring to the alleged lack of seriousness of the "Spiegel". The complainant's statement thus objectively constitutes a contribution to a question of great interest to the public concerning trust in the State administration and the judiciary, and cannot lose this character because the complainant was at the same time defending his honour and his position. Among the legitimate interests he was upholding with his statement were, then, also his right to contribute to public opinion-formation.

It is from this viewpoint that the nature of the defence by the complainant must be assessed. The point is not solely, as the courts assume, whether the complainant's replication was "absolutely necessary" for restoring his honour, instead it has also to be asked whether it corresponded to the nature of the reporting in the "Spiegel" and its effect on public opinion. This follows from the importance of statement and counterstatement for the formation of public opinion.

Press freedom - under the protection of which the Volga article as such stood - is accompanied by duties that must be taken all the more seriously the higher the fundamental right of press freedom is rated. When the press makes use of its right to inform the public it is obliged to report truthfully. The carrying out of this obligation to truth is, according to established case law, required already for the sake of protecting the honour of the person concerned. . . . It is at the same time rooted in the importance of public opinion-formation in the total organism of a free democracy. It is only where the reader is, within the limits of the possible, correctly informed that public opinion can form properly. The press is therefore bound, for the sake of its task in public opinion formation, to verify information and assertions that it passes on for their truth content. Though this duty of verification and truth should not be exaggerated, it is nevertheless inadmissible carelessly to pass on untrue information. A fortiori, the truth may not deliberately be distorted; this can happen also where essential circumstances known to one are concealed from the public.

As the Regional Court finds, the Volga article portrayed a distorted picture of the complainant's political position, not only by conveying some untrue assertions, but also and particularly by deliberately leaving out facts appropriate for correcting the image of his political views. There is not an objective presentation of what was known to the writer and manifestly essential to an appraisal of the complainant's political position. Instead, the article drags together everything, even from far in the past, that may serve to pick out the "marked red thread" in the complainant's life, remaining diligently silent about anything that could attenuate the suspicion of communist views. In particular, the reader is not made aware of the material that the complainant had handed the correspondent to prove that he decisively condemned Bolshevism. The "Spiegel" therefore deliberately offered its readers only partial truths, under the appearance of the whole truth.

How the complainant replies, what form he could be allowed to give his contribution to the topic thrown up publicly for debate, is decisively determined by this nature of the reporting by the "Spiegel" and by the need to counteract its effect on public opinion. If the "Spiegel" had through its reporting about the complainant laid itself open to the justified suspicion of not reporting reliably, then an appropriate contribution to public debate might also consist in correspondingly criticizing the "Spiegel" generally as a vehicle for such a mode of portrayal. The "Spiegel" had thus itself given occasion for a denigratory judgement . . . and had therefore in principle to put up with such a judgement, even if it reduced its reputation. The "objective refutation" of the accusations against the complainant, which is all the Regional Court concedes him, could not suffice as a counter-measure to the influence of the Volga article on public opinion formation. Since the article owed its total effect less to actual untruths than to the suppression of facts and the shifting of emphases, such confutation was extremely difficult, and therefore scarcely able on its own to overcome the lasting impression of a publication by the much-read weekly magazine.

d) Summarizing, the conclusion is as follows: where the courts do not allow the ground of justification and privilege, for the accusation of using intellectual disclosures comparable with pornography as a means of stimulating the readership, then they base this on the assumption that the complainant had a justified interest only in defence of his personal honour. . . . But the effect of Article 5(1) GG commands a recognition also of his justified interest in influencing the formation of public opinion on an important issue of policy on public offices, and also an evaluation of his utterance as a counter-attack to inaccurate information of the public on this. Since such an examination is absent from the judgments challenged, the complainant's fundamental right under Article 5(1) GG is infringed. These judgments are therefore to be set aside.

Judges: Dr. Scheffler, Dr. Heiland, Dr. Heck, Dr. Berger, Dr. Scholtissek, Dr. Drath, Dr. Stein, Ritterspach, Lehmann.

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