BVerfG NJW-RR 2001, 411 I. Senate, 1. Kammer (1 BvR 1839/95)
09 October 2000
Professor Basil Markesinis
Raymond Youngs, Senior Research Fellow at the Institute of Global Law


The constitutional complaint is made against civil court judgments which rejected a claim to an injunction by the complainant. The object of dispute in the initial proceedings was an accusation by the defendants against the complainant, according to which he "had with overwhelming probability been responsible for the collusion of the company management at the time regarding the merger agreement of 1972 with the D. Group". The complainant objects to the violation of his general right of personality as well as his right to a legal hearing in accordance with Art 103 para 1 of the Basic Law.

The prerequisites for acceptance of the constitutional complaint in accordance with § 93 a (2) of the Federal Constitutional Court Act are not present... The constitutional complaint has no sufficient prospect of success.

a) The complainant is admittedly affected in his general right of personality by the decisions which are being challenged. The basic right protects elements of the personality which are not the subject of special freedom guarantees, but are not inferior to these in their constitutive importance for the personality. These elements include social recognition of the individual. On this ground, the general right of personality includes protection from statements which are apt to have a detrimental effect on a person's image in the public eye (reference omitted). The statement in question here, which accuses the complainant of dishonest behaviour in connection with his activity as director of the M. KG, has this kind of relevance to the personality.

b) The general right of personality is not guaranteed without reservation. It finds its limits, according to Art 2 para 1 of the Basic Law in the rights of others, to which the basic right to free expression of opinion under Art 5 para 1 sentence 1 belongs. Contrary to the view of the complainant, the statement which is the object of the dispute is covered by the protective area of Art 5 para 1 sentence 1 of the Basic Law. It can for the moment be left undecided whether an assertion of facts is - at the least - connected with the statement. According to the constant case law of the Federal Constitutional Court, it is not only value judgements which fall under the protection of freedom of opinion but also assertions of facts if and insofar as they are opinion related. Only deliberately untrue assertions of fact, and those the falsity of which has been established without doubt at the point in time of the statement, are outside the protected area of Art 5 para 1 of the Basic Law. All other assertions of fact with a link to opinion enjoy basic right protection even if they later turn out to be untrue (reference omitted). The statement by the defendants in the initial proceedings that there was a suspicion of collusion in connection with the merger agreement is, however, at least an evaluation of a factual event. There are no grounds for saying that the defendants were deliberately untruthful in expressing the possible factual elements of this statement. This is contradicted not least by the fact that the Oberlandesgericht in the parallel proceedings 30 U 689/92 has described the connections with the merger agreement of 1972 as in need of clarification.

c) The basic right to free expression of opinion under Art 5 para 1 sentence 1 of the Basic Law is admittedly not free from limitation. According to Art 5 para 2 of the Basic Law, it is subject to limitations which arise from general statutes, which include §§ 1004, 823 (1), and 823 (2) of the BGB, in combination with § 186 of the Criminal Code (StGB), which give expression in civil law to the constitutional law right of personality. The courts have rejected the prerequisites for this in the present case. The interpretation and application of these provisions is a matter for the civil courts. They must, however, take appropriate account here of both basic rights, in order that their significance in establishing values is also preserved at this level of application of the law. Within the framework of the features of ordinary law provisions which are open to interpretation, this leads as a rule to a balancing of the importance of the freedom of opinion and the status of the legal interest which is impaired by the expression of opinion and which the ordinary law seeks to protect. The result of this balancing cannot be generally and abstractly forecast because of its relationship to individual cases. The Federal Constitutional Court has in this respect, however, developed definite rules of priority where the crucial issue is whether it is a queston of a value judgement or an assertion of facts. Thus, for value judgements, protection of the personality as a rule takes precedence over freedom of opinion if the statement appears to be an attack on human dignity, abuse, or insult in the formal sense. In assertions of fact, the balancing depends on the truth content. True statements must as a rule be accepted, even if they are disadvantageous for the person affected, but this is not the case with untrue ones (reference omitted). However, if a statement is so lacking in substance that not even a single concrete tangible fact can be gathered from it, the value judgement takes precedence over any possible factual content (reference omitted). In the case of a statement of this kind which lacks substance, the truth content of possible factual elements may therefore have no importance even within the framework of the balancing exercise.

d) Bearing these constitutional law principles in mind, the decision of the Oberlandesgericht - which is prima facie decisive - is not open to objection.

aa) The Oberlandesgericht correctly assumed as its starting point that an accusation of "collusion of the management at the time etc." was a mere subjective value judgement and could not be classified as an assertion of facts. A concrete tangible fact cannot be derived from the statement - apart from the statement that the complainant as director collaborated in the merger in 1972, which is true as such. The accusation is instead formulated in very general terms...

bb) Within the framework of the balancing of the competing basic right positions, it is therefore not a question of the truth content of the statement. Instead, the balancing principles for value judgements are to be applied. In this respect a clear priority of the right of personality of the complainant as against the basic right of the defendants in the original proceedings to freedom of opinion could only be accepted if the statement which is the subject matter of the dispute would amount to abusive criticism. But this has been correctly denied by the Oberlandesgericht. For the defendants in the original proceedings, it was obviously not a question of defamation of the complainant but of argument in the case. The statement is to be seen in the context of the dispute about the merger agreement of 1972.

cc) The fact that it is not abusive criticism does not, however, conclusively mean that freedom of opinion would deserve priority in every case. Instead, a balancing of the opposing basic right positions is necessary. The Oberlandesgericht has nevertheless carried out such a balancing exercise in a manner not open to objection in constitutional law. In particular, it was a valid consideration by the court that the defendants have a greater right to expression of opinion within the framework of their position as shareholders (reference omitted). The Oberlandesgericht did not merely take the defendants' interest into account in a one-sided way. Instead it correctly referred to the fact that the management (and therefore also the complainant) was in a position, merely on the ground of its better access to information, to defend itself and to bring counterarguments. Finally the Oberlandesgericht correctly included the decision in the parallel proceedings 30 U 689/92 in its considerations. It follows from this that the events in connection with the merger in 1972 were at least in need of clarification and the statements of the defendant are to be seen in this context...

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