freedom of speech

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Freedom of opinion , more precisely freedom of expression , is the guaranteed subjective right to free speech as well as free expression and (public) dissemination of an opinion in word, writing and image as well as all other available means of transmission . To be distinguished from the freedom of expression is the z. B. Freedom of speech applicable in the United States .

Connection with the form of government

Freedom of expression is a human right and is guaranteed in constitutions as a fundamental right directed against state power in order to prevent the formation of public opinion and the associated debate with government and legislation from being impaired or even prohibited. In close connection with freedom of expression, freedom of information ensures access to important information, without which it would not be possible to form a critical opinion. The ban on censorship prevents government agencies from controlling opinions and information. In contrast to a dictatorship , the state authorities in a democracy are expressly forbidden to use preventive information control through censorship.

history

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Freedom of expression was already described in Article 11 of the declaration of human and civil rights in France in 1789 as “  un des droits les plus précieux de l'Homme  ” (German: “one of the most precious human rights”). Today it is considered one of the most important benchmarks for the state of a democratic constitutional state . One of the most frequent quotes on freedom of expression is mistakenly attributed to Voltaire , but actually comes from Evelyn Beatrice Hall's biography about him to describe his convictions:

"I disapprove of what you say, but I will defend to the death your right to say it."

"I refuse what you say, but I will defend your right to say it to the death."

During National Socialism, freedom of expression was restricted, among other things, by the Reichstag Fire Ordinance of February 28, 1933 and the Treachery Act of December 20, 1934.

Limits

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Legal Limits to Freedom of Expression

In most democracies, restrictions on freedom of expression may not prevent dissenting opinions, but may only be used for the protection of the state or other important interests such as the protection of minors . Repression , i.e. sanctions after an opinion has been expressed, is usually only allowed to protect other goods of higher and equal rank, but only on the basis of a law that is sufficiently detailed and legally passed.

Generally widespread restrictions on freedom of expression (not exhaustive) result in Germany from the limit of Art. 5 Paragraph 2 of the Basic Law . Some of the restrictions include:

  • the protection of personal honor from insult or defamation
  • the disclosure of information classified as secret
  • the limits of morality and the protection of minors
  • the limit of public safety
  • of unfair competition by discrediting the goods or services of a competitor
  • the unauthorized disclosure of information protected by copyright (e.g. Article 5, paragraph 2, sentence 1 of the Basic Law: Limits to "general laws"; the copyright law is such a law, as it does not have an opinion-specific effect)

In addition, depending on the constitutional tradition , there can be considerable differences in the state's reluctance to face repression: In contrast to the USA, which is quite reluctant in this regard, most European countries go much further. In contrast to the USA, in Europe, for example, racial discrimination is usually also a criminal offense among private individuals (see sedition ).

International regulations

At the level of the United Nations , freedom of expression is guaranteed in Article 19 of the Universal Declaration of Human Rights :

“Everyone has the right to freedom of expression; This right includes the freedom to hold opinions unchallenged and to search, receive and disseminate information and ideas with all means of communication regardless of borders. "

For the member states of the Council of Europe , Article 10 of the European Convention on Human Rights creates a minimum standard for freedom of expression. Within the European Union , freedom of expression and information is laid down in Article 11 of the Charter of Fundamental Rights that came into force with the Treaty of Lisbon .

ECHR decisions on freedom of expression

In a whistleblowing trial in the case of a geriatric nurse who had pointed out abuses in care, the European Court of Human Rights (ECHR) ruled previous judgments of the German courts as a violation of Article 10 of the European Convention on Human Rights. There was no fair trade-off between the employer's reputation and rights and the employees' right to freedom of expression.

According to the legal view of the ECHR, the right to freedom of expression includes not only harmless expressions, but also expressions of opinion that are drastically and boldly presented. In its judgment of 16 January 2018 (complaint no. 40975/08), the Court found that not only the meaning of the expression of opinion, but also the way in which it was expressed, was covered by Article 10 of the ECHR. The case is based on the statement of a Slovenian defense attorney who accused the court-appointed expert of narcissistic traits and a handwriting analysis bordering on quackery . The criminal defense attorney was punished according to national procedural law, whereby the Slovenian Constitutional Court also upheld the subsequent fixing of a fine against the defense attorney. The Slovenian court was of the opinion that denigrating the experts was to be equated with disregarding the court, since the court had ultimately appointed the experts. The defense attorney filed a complaint with the ECHR against this decision. The ECtHR found that the statements, on the one hand, in connection with criminal defense in the specific case and that they had been taken out of context without further explanation and were not without any basis. In the decision of the European Court of Human Rights on January 27, 2015 (complaint no. 66232/10), the latter had stated that the right to freedom of expression is not unlimited, with the current decision the right of effective defense is now being strengthened.

Legal situation and situation in Germany

In Germany, freedom of expression is guaranteed by Art. 5, Paragraph 1, Clause 1, 1st Hs. Basic Law (GG) and Art. 10 ECHR .

Art. 5 para. 1 GG (shortened):

"(1) Everyone has the right to freely express and disseminate his or her opinion in words, writing and images [...] There is no censorship ."

Significance of the fundamental right to freedom of expression, scope of protection

The importance of this fundamental right was specified and underlined by the Federal Constitutional Court in its case law. The Lüth judgment of 1958 says: The fundamental right to freedom of opinion, as the most direct expression of the human personality in society, is one of the most noble human rights of all. It is absolutely essential for a liberal, democratic state order .

The fact that the concept of “opinion” for protection does not depend on whether it is a right or wrong, emotional or rationally justified value judgment , was specified by the Federal Constitutional Court in 1972 in a judgment on the freedom of expression of prisoners: “In a pluralistic Structured state structure based on the conception of a free democracy, every opinion, including those that deviate from prevailing ideas, is worthy of protection. ”In general, the legal concept of opinion is defined as a moment of taking a position, of taking a stand and of opinion in the context of an intellectual debate. Art. 5 GG covers every conceivable form of expressing an opinion, i.e. not only expressing it, but also an opinion recorded on a poster , banner or button . In addition, such activities are also protected that accompany the expression of opinion and, in particular, aim to strengthen their effect.

Although the German Basic Law only speaks of freedom of expression, this does not mean that assertions of fact are excluded from the protection of fundamental rights. They are protected when they are a prerequisite for a certain opinion. Expressions of opinion and assertions of fact can hardly be distinguished from one another in practice. Since untrue factual assertions are fundamentally not covered by the protection of freedom of expression, a distinction is necessary in this case. In practice there are major problems with this delimitation. In the basic case, the distinction is simple: A factual assertion is present if the assertion is accessible to evidence (e.g. "Party A is the party with the largest number of members in Germany") is either correct or incorrect. A court can provide evidence on these questions raise). An opinion, on the other hand, eludes proof and is instead characterized by values ​​and beliefs (e.g. the statement “The tax concept of Party B for the 2005 Bundestag election is unjust” is neither wrong nor correct, but rather represents a valuation).

As a rule, false statements of fact must not be accepted, true statements of fact do. Anyone who makes a factual assertion that adversely affects the personality rights of another has to prove this accordingly in accordance with §§ 186 StGB, 823 Para. 2 BGB. If a factual assertion is neither verifiably true nor verifiably false, a weighing has to be made. A balance is required between freedom of expression and protection of personality. "According to this, under certain circumstances even a possibly untrue assertion cannot be forbidden to those who make or disseminate it, as long as they have made sufficiently careful research into the truth of the matter in advance." The severity of the interference with personal rights and the handling of due diligence and disclosure obligations and opportunities must also be taken into account (especially in the case of the press).

Freedom of expression also protects satire , comedy , caricatures and advertising . According to Art. 5 GG there is also no prior censorship for such expressions of opinion .

Limits (barriers) to freedom of expression: Article 5 (2) of the Basic Law

Art. 5 para. 2 GG regulates the limits (barriers) of freedom of expression:

"These rights find their limits in the provisions of general laws , the legal provisions for the protection of young people and in the right to personal honor."

- Art. 5 para. 2 GG

As with most other fundamental rights, the possibility is expressly provided here to restrict the fundamental right by means of a law . Within the three barriers named in Art. 5 GG, usually only recourse to the “general laws” is necessary, since the other barriers according to the case law of the Federal Constitutional Court do not have any outstanding peculiarities in terms of the legal system.

In contrast to most other basic rights, however, the restriction of freedom of expression requires more here, because “general” law places higher demands on the legislature than just “law”. The Federal Constitutional Court therefore had to clarify what was to be understood by the term “general law” and described such a law in such a way that it should not have a specific opinion as such in mind (according to the special legal doctrine ), but on the one hand the protection of superior legal interests and on the other hand, an opinion may at best be made by chance - that is, not specifically and individually, but only indirectly. In individual cases, however, it still remains open when a law can actually apply as a general law or whether it is already a "special" one.

In the context of the so-called "theory of interaction ", the Federal Constitutional Court has further complicated the problem of general laws by stipulating in the so-called Lüth judgment: The general laws, in their restrictive effect on the fundamental right, must in turn be seen in the light of the meaning of this fundamental right and interpreted in such a way that the special value of this right, which in a free democracy must lead to a fundamental presumption of freedom of speech in all areas, but especially in public life, is preserved in any case. What is meant by this is that laws that restrict freedom of expression should in turn be measured by the importance of freedom of expression. The Federal Constitutional Court has been accused in the jurisprudential literature, among other things , of making a circular argument with this theory of interaction and indirectly promoting the evaluation of opinions, which is not the point of Art. 5 GG, but what should be prevented by freedom of expression.

This has been largely clarified on the question of the ban on insulting . Although the offense is very broad (he only uses the term without legally defining it ), it is clear from its aim that it does not prohibit a particular opinion. In this case, the law judges statements solely on the basis of whether they endanger general personal rights or the honor of the addressee. The content and the specific statement of an expression of opinion are irrelevant. In addition, the person making the statement can, under certain circumstances, refer to Section 193 of the Criminal Code , the provision on the safeguarding of legitimate interests .

However, the case of Section 130 (4) StGB is problematic . According to this, there is a threat of imprisonment if someone "publicly or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving, glorifying or justifying the National Socialist rule of violence and arbitrariness." The Federal Constitutional Court has in its Wunsiedel- Decision established that this criminal law, even if it is not a general law, is compatible with Article 5, Paragraphs 1 and 2 of the Basic Law. It took the position that an exception to the prohibition of special rights for opinion-related laws was inherent in fundamental rights. The Basic Law is an alternative to the National Socialist rule of injustice. However, it is questionable whether this thesis can convincingly justify a “special right” against neo-Nazis under constitutional law.

In addition to the special limit of Article 5 (2) of the Basic Law, the fundamental right to freedom of expression can also be restricted by barriers inherent in fundamental rights. This includes all restrictions that serve to protect constitutional goods, in particular other fundamental rights. According to the principles of the professional civil service, the duty of moderation and restraint applies to the public service, so that confidence in an impartial and public interest-oriented administration is not undermined. Provocative expressions of opinion outside of the service represent a breach of duty .

Decisions of the Federal Constitutional Court on freedom of expression

Bernd von Heintschel-Heinegg wrote in a summary in 2016: “In case of doubt, the BVerfG decides in favor of freedom of expression, even if the protection of honor suffers. For many years, freedom of expression has been the most direct expression of the human personality in society for the Karlsruhe judges, one of the most noble human rights of all. Freedom of expression is absolutely essential for a free, democratic state order. - The constitutional jurisprudence must be seen against this background, even if it may sometimes appear incomprehensible at first glance. "

Studies on the state of freedom of expression

In the perception of writers in Germany, freedom of expression is threatened. 526 writers took part in a study carried out at the end of 2018 by the PEN Center Germany and the Institute for Media Research at the University of Rostock . Three quarters of the participants are concerned about freedom of expression in Germany. They point to an increase in threats, intimidation and hateful responses. 50% have suffered attacks on themselves, 2% physical attacks.

Legal situation in Austria

In Austria , freedom of expression is protected by Art. 13 StGG and Art. 10 ECHR . Article 10 of the ECHR grants greater legal protection. After that, everyone can express himself freely in any way and receive statements from others. This basic right can only be restricted under certain conditions.

Here is an example from the Criminal Code :

Hate speech

Section 283 StGB as amended by Federal Law Gazette I No. 103/2011

(1) Anyone who publicly in a manner that is likely to endanger public order, or who is perceptible to the general public to violence against a church or religious society or another according to the criteria of race, skin color, language, religion or ideology, nationality, descent or national or ethnic origin, gender, disability, age or sexual orientation or explicitly encourages or provokes a member of such a group because of his or her membership of this group is with To punish imprisonment up to two years.
(2) Anyone who is perceptible to the general public against a group referred to in Paragraph 1 or who insults them in a manner that violates human dignity and thereby seeks to make them contemptible shall also be punished .

In the fundamental decision G155 / 10 of June 30, 2012, the Constitutional Court (VfGH) stated that silent (passive) begging "is at least assessed as an expression of a fact, namely being in need and thus dependent on alms ". Freedom of expression applies to all means of expression; it is also subject to the utterance of a beggar, usually articulated in body language. Freedom of expression also protects communication with others, as is the case with passive begging.

According to the case law of the Constitutional Court, commercial advertising also falls under the concept of freedom of expression.

Legal situation in Switzerland

Article 16 of the Federal Constitution guarantees freedom of expression and information here.

Freedom of expression is not unlimited. Restrictions are permissible provided they are based on a sufficient legal basis, are in the public interest or are justified by the protection of fundamental rights of third parties, maintain the principle of proportionality and do not affect the core content. Article 36 of the Federal Constitution

Legal situation in the USA

In the United States freedom of speech belongs ( English freedom of speech ) as the first Amendment to the Constitution of the United States of America to the Bill of Rights of the Constitution of the United States . This right is traditionally interpreted very broadly there and in some cases also protects statements that would be regarded in other countries as sedition , an attack on the constitution or incitement to criminal offenses. In contrast to freedom of expression, freedom of speech also protects false statements of fact.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. "

“Congress should not enact law to establish a state religion, prohibit the free exercise of religion, restrict freedom of speech or the press, or the right of the people to peacefully assemble and petition the government to put an end to grievances. "

- 1st Amendment to the United States Constitution

Freedom of expression and speech on the Internet

David Kaye , UN Special Representative on Freedom of Expression , named encryption and anonymity as a prerequisite for exercising the right to freedom of expression in digital media in his 2015 annual report. Such security measures could be essential for other rights to be exercised at all.

The historian and author Timothy Garton Ash mentions freedom of speech in his 2016 book in German . Principles for a networked world ten principles for freedom of speech in the digital world. They are developed from the internet platform project freespeechdebate.com (English: Free Speech Debate ) operated by the University of Oxford , seat of the Garton Ashs Chair , on which all research on the topic is documented in thirteen languages ​​and put up for discussion:

  1. All people must be able and qualified to express their opinions freely and to seek, receive and communicate information and ideas without regard to boundaries.
  2. We do not threaten violence or accept violent intimidation.
  3. We use every opportunity to spread knowledge and do not tolerate any taboos.
  4. We need uncensored, diverse and trustworthy media in order to make well-informed decisions and fully participate in public life.
  5. We speak openly and with robust civility about all kinds of differences between people.
  6. We respect all believers, but not necessarily all beliefs.
  7. We should be able to protect our privacy and counter reputational damage. However, we should also accept restrictions on privacy if this is in the public interest.
  8. We must be empowered to question restrictions on freedom of information that are justified, for example, with the protection of national security.
  9. We defend the Internet and other means of communication against illegitimate interference by public and private powers.
  10. We make our own decisions and bear the consequences.

In the case of social media such as Twitter and Facebook , the question arises as to how far the operators of such offers are allowed to exercise " domiciliary rights " and prevent unpleasant statements, especially since today many people get information online and form their political opinion thanks to online offers. In the Packingham v. In North Carolina , the US Supreme Court recognized publicly available social media as a public space, and access to it should not be restricted by law. It remains to be seen to what extent this judgment also obliges the operators of online offers.

See also

literature

  • Dieter Grimm : Freedom of expression in the case law of the Federal Constitutional Court. In: New legal weekly . 1995, pp. 1697-1705.
  • Martin Hochhuth : Freedom of opinion in the system of the Basic Law (=  Jus Publicum. 153). Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149073-6 (partly also: Habilitation thesis, University of Freiburg, 2005).
  • Michael Hoppmann: freedom of speech. In: Gert Ueding (Hrsg.): Historical dictionary of rhetoric . WBG, Darmstadt 1992 ff., Vol. 10 (2011), Col. 1021-1029.
  • Horst Meier : "More discussion, not forced silence". About freedom of speech in the United States. In: Merkur 708 (May 2008). Reprinted in: Horst Meier: Protest-free zones? Variations on civil rights and politics. Berliner Wissenschafts-Verlag 2012, pp. 65–71.
  • Sascha Sajuntz: The development of the press and freedom of expression in 2017. NJW 2018, 589.

Web links

Wiktionary: Freedom of expression  - explanations of meanings, word origins, synonyms, translations
Commons : Freedom of expression  - collection of pictures, videos and audio files

Individual evidence

  1. ^ Evelyn Beatrice Hall Quotes, Brainyquote.com . See Paul F. Boller Jr./John George: They Never Said It: A Book of Fake Quotes, Misquotes, and Misleading Attributions , New York 1989, Oxford University Press, pp. 124-126. ISBN 0-19-505541-1 .
  2. ↑ Restricting: BVerfG, judgment of January 25, 2012 , Az. 1 BvR 2499/09, full text.
  3. ↑ Art. 19 AEMR (PDF) (official German version)
  4. ↑ Fired geriatric nurse receives severance pay. Süddeutsche Zeitung, May 25, 2012, accessed on May 13, 2017 .
  5. ↑ 28274/08
  6. ↑ 40975/08 .
  7. ↑ 66232/10 .
  8. ↑ Newsletter of the German Lawyers' Association .
  9. ↑ a b BVerfGE 7, 198 , pp. 207 ff. - Lüth.
  10. ↑ BVerfGE 33, 1 (15) - prisoners.
  11. ↑ BVerfG of June 28, 2016 - 1 BvR 3388/14 - Rn. 15 = NJW 2016, 3360 = JA 2017, 76 (Muckel) <alleged doping in a 13-year-old athlete in the GDR>
  12. ↑ BVerfG of June 28, 2016 - 1 BvR 3388/14 - Rn. 16 = NJW 2016, 3360
  13. ↑ BVerfG of June 28, 2016 - 1 BvR 3388/14 - Rn. 20 = NJW 2016, 3360
  14. ↑ BVerfG of June 28, 2016 - 1 BvR 3388/14 - Rn. 21 = NJW 2016, 3360
  15. ↑ Disgraceful criticism in rare exceptional cases limited to time online
  16. ↑ Torsten Paßmann, Lawyers: Muzzle or Freedom of Expression?
  17. ↑ Constantin Baron van Lijnden : acquittal before the Higher Regional Court Munich: lawyer was allowed to call the Senate worse than Roland Freisler , full text .
  18. ↑ Ralf Niehus, abuse criticism / insult versus perception of legitimate interests in judicial criticism from September 11, 2016
  19. ↑ OLG Munich , judgment of May 31, 2017, Az. 5 OLG 13 Ss 81/17, full text on the Freisler comparison
  20. ↑ a b BVerfGE 124, 300 , p. 320 ff. - Rudolf Heß commemoration.
  21. ↑ Jan Philipp Schaefer: How much freedom for the opponents of freedom? In: The Public Administration, Issue 9 (May 2010), pp. 379–387 and Horst Meier : Special right against neo-Nazis? About freedom of expression and the need for consensus in Germany In: Merkur 733 (June 2010) - reprinted in ders., Protest-free zones? Variations on civil rights and politics. Berliner Wissenschafts-Verlag 2012, pp. 57–64.
  22. Jump up for the free democratic basic order. (PDF; 50 kB) and a. Interior Minister Mecklenburg-Western Pomerania, archived from the original on June 7, 2011 ; accessed on January 28, 2014 .
  23. ↑ Bernd von Heintschel-Heinegg : Protection of honor contra freedom of opinion - Three current decisions of the BVerfG (3rd part) published on August 6, 2016 on Beck blog
  24. ↑ Elizabeth Prommer, Carlos Collado Seidel, Juliane Wegner: The free word under pressure (PDF file) 10. October 2018
  25. ↑ G155 / 10
  26. ↑ See e.g. B. VfSlg 10.948 / 1986 etc.
  27. ↑ Swiss Federal Supreme Court consideration on a case involving freedom of expression
  28. ^ David Kaye: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Retrieved May 22, 2015 .
  29. ^ Hanser Munich, ISBN 978-3-446-24494-8
  30. ↑ badische-zeitung.de , December 16, 2016, Thomas Hauser : How can you talk sensibly to each other online? (December 17, 2016)
  31. ↑ freespeechdebate.com (December 17, 2016)