HEADNOTE:

The admissibility of evaluative statements in the public conflict of opin-ion

Order of the First Panel of 13 May 1980 -- 1 BvR 103/77 --
in the proceedings on the constitutional complaint of 1. Mrs Dr. B. . ., 2. Dr. von H. . . - Attorneys: Advocates Dr. Albrecht Pünder, Dr. Rüdiger Volhard and Dolf Weber, Steinlestrasse 19-21 Frankfurt 70 - against a) the verdict of the Regional Appeal Court of Celle of 8 December 1976 - 13 U 84/76, b) the verdict of the Regional Court of Hamburg of 26 November 1975 - 13 O 82/75 --.

DECISION:

The verdict of the Regional Appeal Court of Celle of 8 December 1976 - 13 U 84/76 - infringes the complainants' fundamental right under Article 5(1), first sentence, of the Basic Law.

The verdict is set aside. The case is referred back to the Regional Appeal Court.

The Land of Lower Saxony shall reimburse the necessary expenses to the complainants.

EXTRACT FROM GROUNDS:

A.

The constitutional complaint concerns the question of the effect of the fundamental right to freedom of opinion on the civil-law provisions as to the awarding of smart money for evaluative utterances derogatory to the personality right of the person concerned.

I.

1. The complainants are broadcasting journalists; the plaintiff in the initial case is a sculptor and professor at the Technical University of Brunswick.

a) During the "Roemerberg talks" in Frankfurt in 1974, the plaintiff in the initial case gave two lectures on art criticism and exhibitions. In the first, "Art criticism - subject and object of manipulation", he clashed sharply with contemporary art criticism, the characteristics of which he saw as conformism, suppression of the multiplicity and contradictoriness of opinions and a restriction of press freedom in which the journalist no longer wrote what he thought but what he had to. In this connection he mentioned several well-known art critics by name, whom he reproached among other things for "having adopted a private mythology" with which they justified the desired acclamation of themselves, subjected "those who work representationally to authoritarian, fascist views" or "not shunned the cheapest arguments" and bamboozled their readers with things that were "simply not true". If in the great supraregional West German papers no genuinely dissenting voice was to be heard for years now, this was the result of a development in which economic viewpoints squeezed out artistic ones.

In the second lecture, "On the symbiosis of museums and gallery owners", the plaintiff in the initial case summarized his criticism of the exhibition activity of museums and gallery owners in the following words:

"I said above that there are gallery owners today who go to the museums to offer their 'help'. These are almost exclusively gallery owners with non-pictorial products to offer. Gallery owners who present pictorial art that speaks for itself as a rule rely on the observers or purchasers seeing what they see. Art dealers . . . who run a gallery that in practice is empty, with nothing really to be seen in it, are dependent exclusively on the persuasive power of their words, and have great practice in that. They know that their goods do not sell themselves and that is why they go to the museums, engage in explanation or indeed missionary work, and are successful because they have no competitors. The museum director and his employees decide about what is offered to them in their museum, instead of themselves looking about in galleries and studios. This entirely onesided selection is then presented to the public as the outcome of a selection based on understanding of art, tradition and avant-garde boldness."

b) The complainants took part as art critics in these talks, and reported on them in radio broadcasts. In these, complainant 1 said among other things:

"Thus, guided by personal resentment, what ought to have been publicly subsidized reflection on the situation of marketed creativity turned into ostracism of everything that constitutes the contemporary art scene, whether institutionally or substantively - a process in which rightwing oriented provincial demagogues were in hypocritical cahoots with left-wing theoreticians."

"That professor . . . who has remained unknown as a realistic sculptor although by his own account 10 million people have already seen his relief in the Kennedy Memorial Library in Washington, paid for by the Federal Republic . . . quite unabashedly hauled off with hate-filled tirades and so-called revelations about the art business, delivered from the position of a blinkered schoolmaster."

"The event turned into . . . a public campaign against everything that constitutes the contemporary art scene, substantively and institutionally. At it left-wing theoreticians and right-wing demagogues shook hands in hypocritical agreement."

". . . reporting on exhibition practice and art critics was left to a professor . . . from Brunswick, who has remained unknown as a producer of realistic sculpture and was brought by this personal resentment to hate-filled tirades and socalled revelations about the art business, which were enthusiastically taken up by the uncritical public and at times created something like a pogrom atmosphere in the hall."

Complainant 2 stated among other things:

"The whole time I listened very attentively to hear whether the art writer's tongue might not slip once to say that everything was Jew-ridden, or that the Freemasons were behind it, for that was the way the tone was. But the public was carried away, as completely as he gave it to them. It noticed nothing about his hatred of everything that could be exhibited at all - a hatred nourished by the delusion of persecution that unsuccessful artists so often develop. Two speakers were supposed to have come along, well-known people who have something to do with practice, not just theory. But both had turned it down, no doubt well aware who they were about to be taken in by there."

"One wonders why something like this always has to be so wretchedly organized. For God knows art debate is boiling vigorously around us, is part of the most intelligent stuff being produced today, and could have told us important things about the situation - not just us, but also the groups allegedly excluded. For the point was simply to render oneself more understandable to more people. But here - in the Römer in Frankfurt - was a pair of dialectical garden dwarfs sitting beside each other, squatting myopically and long-windedly over questions that they had posed in basically false terms."

2. The Regional Court condemned the complainants to pay damages amounting to 3500 DM and 2500 DM; the complainants' appeal was unsuccessful. In justification the Regional Appeal Court said essentially the following:

Severe defamations, justifying the compensation awarded the plaintiff, were constituted at any rate by the statements that he had, in the position of a blinkered schoolmaster, engaged in hate-filled tirades, was a provincial demagogue and had in his talks at times created a pogrom atmosphere; also, that he was a dialectical garden dwarf, affected by delusions of persecution, and that his talks had the tendency of reproaching modern art with being Jew-ridden. Complainant 1 had equated the plaintiff with a bigoted persecutor of modern art working with demagogic means, stopping at nothing to fight and destroy it, and located his statements in the area of National Socialist ideological material. Particularly this last accusation was heavily defamatory for any citizen of a democratic State under the rule of law. The statements of complainant 2 conveyed the negative value-judgement that the plaintiff was a person suffering from delusions of persecution, dominated by National Socialist ideology and appearing ridiculous as artist and as critic.

. . .

II.

1. With the constitutional complaint, the complainants complain of infringement of Article 5(1) GG. They assert that the order to pay damages is a particularly severe interference with the basic right of free expression of opinion . . . (details).

2. The plaintiff in the initial case regards the constitutional complaint as unjustified.

. . .

B.

The constitutional complaint is justified.

I.

It is directed against civil judicial decisions about a civil legal entitlement to compensation for damages. The Federal Constitutional Court has not to verify the interpretation and application of the civil legal provisions as such; all that is incumbent on it is to guarantee compliance with the constitutional rules and criteria by the ordinary courts (BVerfGE 42, 143 [148] - DGB - with other references). In carrying out this task, the limits to its possibilities of intervention cannot be drawn rigidly and permanently (cf. BVerfGE 18, 85 [93]). For they depend on the intensity of the infringement of fundamental rights: the more a civil judicial decision curtails requirements of free existence and activity protected by fundamental rights, the more thorough must be the constitutional review of whether such curtailment is constitutionally justified (BVerfGE 42, 143 [148 f.]; 42, 163 [168] - Echternach; 43, 130 [135 f.] - political pamphlet).

In the present case the Courts have imposed a penalty which according to the case law of the Federal High Court of Justice should be passed only where the damaging party can be accused of grave fault or where a serious curtailment of the personality rights of the person concerned is involved (BGHZ 35, 363 [366 ff.] - ginseng root; BGH, LM No.42 on para.847 BGB). By contrast with, for instance, the limited prohibition on repeating a particular defamatory expression verbatim (BVerfGE 42, 143 [149 f.]), such a penalty has the consequence of preventing the proclamation of opinions, that is of ideas, with which the person making the statement wishes to make a contribution to the intellectual debate protected by Article 5(1) GG. For the condemnation to pay damages does not lead solely to satisfaction for a defamation lying in the past. It inevitably develops preventive effects by subjecting the expression of critical opinions to high financial risk; it may thus reduce willingness to exercise criticism in future, and in this way bring about adverse effects on free intellectual debate that must affect the core of the constitutional guarantees. Strict requirements must accordingly be placed on the constitutionality of such an intervention: as well as the question whether the decision challenged displays a fundamentally wrong view of the importance of the fundamental right, particularly of the extent of its area of protection (BVerfGE 18, 85 [93]), individual errors of interpretation cannot be left out of account either (cf. BVerfGE 42, 163 [169]; 43, 130 [136]).

II.

The judgment of the Regional Appeal Court displays such errors.

1. Statements to which it links the condemnation of the complainants in principle fall within the area protected by Article 5(1) GG. The question is solely whether they go beyond the bounds of this fundamental right. The "right to personal honour" and the "general laws" must be seen in the light of the importance of the fundamental right to freedom of opinion; they are in turn to be interpreted on the basis of a recognition of the value-setting importance of this fundamental right in a free democratic State and thus themselves restricted again in their effect of limiting the fundamental right (BVerfGE 7, 198 [208 f.] - Lüth, consistent case law).

2. While the Regional Appeal Court has pointed out this legal position, it has misunderstood or failed to take account of the principles developed in the case law that are of importance for the effect of Article 5(1) GG on the "general laws" of para.823 (1) and para.847 BGB at issue here.

a) The statements the Regional Appeal Court had to assess were parts of contributions to public intellectual debate in an area that depends no less on freedom of thought than does politics (cf. Article 5(3) GG). By contrast with topics of no general interest and debates in the private sphere (cf. BVerfGE 7, 198 [212]), in such a case an interpretation of the laws limiting freedom of opinion that places too high demands on the admissibility of public criticism is incompatible with Article 5 GG (BVerfGE 42, 163 [170], with further references).

While the Regional Appeal Court has seen that the complainants' productions contained public criticism, it has nevertheless taken the statements complained of out of their context; in this way, it has arrived at the assumption that the complainants' attacks had the sole objective of denigrating the plaintiff in the initial case personally among the interested public, defaming him and decrying his talks given during the "Roemerberg talks". Here the Court has misunderstood the object of the contributions: even if they were bound up with excessive polemic of varying content and level and the plaintiff's statements were also involved in the criticism, the point was not primarily the effect on his legal sphere and thus the private or at least personal denigration of the plaintiff, but public criticism of the "Roemerberg talks", and debate on a particular intellectual approach. In this state of affairs, however, the freedom of expression of opinion in the public clash of opinion takes on its full weight in respect of the necessity to interpret the "general laws" themselves on the basis of a recognition of the importance of freedom of opinion, and thus in turn restrict them in their effect of limiting the fundamental right.

b) The Regional Appeal Court has further left out of account the fact that a person who in the public clash of opinion has given occasion for a negative value judgement must in principle put up with a sharp reaction even if it diminishes his reputation (BVerfGE 12, 113 [131] - Schmid-Spiegel; 24, 278 [286] - Tonjäger); it can at most be derived from the judgment challenged that the Regional Appeal Court would have taken this viewpoint into consideration if the plaintiff had personally attacked the complainants or others involved in artistic life to defame them. This is not in accord with the case law of the Federal Constitutional Court, according to which the linking of occasion and response in a fluctuating clash of opinion is not confined to mutual insults. It is instead of decisive importance to focus on whether and to what extent the person affected by defamatory statements had in turn taken part in the process of public opinion-formation protected by Article 5(1) GG, and thus by his own decision subjected himself to the terms of the clash of opinion and by so doing surrendered a part of his private sphere deserving protection.

These conditions were met here. It is irrelevant whether the plaintiff's talks were as the Regional Appeal Court assumed "kept objective" and avoided "any personally defamatory attacks". Even talks that were in basic tendency academic could give occasion for sharp, derisive criticism if they - admissibly - contained massive criticism of contemporary art criticism and thus also of the complainants' profession; all the more so since it contained personal attacks on known art critics and gallery owners, mentioned by name.

c) Finally, the judgment challenged left out of account the fact that in principle the form of an expression of opinion comes under the self-determination of the person making the statement, protected by Article 5(1) GG. This applies particularly to the spoken word. The spontaneity of free speech, for the admissibility of which the presumption is in favour (BVerfGE 7, 198 [212]), is a precondition for the force and variety of public debate, which is in turn a basic condition for coexistence in freedom. If that force and variety are to be generally upheld, then in individual cases harshness and excess in the public clash of opinion or a use of freedom of opinion that can contribute nothing to appropriate opinion-formation must be accepted into the bargain (cf. BVerfGE 30, 336 [347]; 34, 269 [283] - Soraya). The fear of being exposed to severe judicial penalties because of an evaluative statement brings with it the danger of crippling or narrowing all debate and thereby bringing about effects that run counter to the function of freedom of expression of opinion in the order constituted by the Basic Law (cf. BVerfGE 42, 163 [170], with further references).

3. The possibility cannot be ruled out that the Regional Appeal Court would have come to another evaluation had it taken the principles set forth into account. The judgment challenged was therefore to be set aside. In the new decision verification should also be made whether in view of the constitutional position it is possible to assume a severe interference or grave fault, which are the precondition for civil legal entitlement for compensation for damages for violation of personality rights.

Judges: Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner.

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