Abusive criticism

from Wikipedia, the free encyclopedia

The defamatory criticism is an utterance in which the focus is no longer on the argument in the matter, but on defamation of the person. This does not yet include polemical or exaggerated criticism; what is required is rather that the expression of opinion consists in disparaging the person.

The Federal Constitutional Court (BVerfG) places high demands on the classification of a statement as defamatory criticism because of the special importance of freedom of expression in a democracy . The protection of expressions of opinion, which present themselves as abuse of third parties, takes a back seat to the protection of personality. The safeguarding of legitimate interests (Section 193 of the Criminal Code) can justify abusive criticism if, as a “right to counterattack”, it represents an appropriate reaction of the person who expressed it to the questionable behavior of the attacker. A satirical overall character can speak against the assumption that the attacked person should have been denounced as a person.

Court decisions

Because the legal texts relevant to the term vicious criticism also contain vague legal terms, understanding the legal situation regularly requires a look at the specific case law. Compared to the lower courts in known cases, higher courts sometimes judge more liberally in favor of freedom of expression:

"Forced Democrat" resolution

In the so-called forced democrat ruling from 1990, the constitutional judges write:

“An expression of opinion does not become an abuse for third parties just because of its disparaging effect . Even an exaggerated and even an abusive criticism does not in itself turn a statement into an abuse. Rather, a disparaging utterance only takes on the character of abuse when it no longer focuses on the argument in the matter, but on defamation of the person. "

The head of the constitutional complaint was the journalist Ralph Giordano , who opposed a ruling by the Munich Higher Regional Court . The ban violates his fundamental right to freedom of expression . Giordano described the former Bavarian Prime Minister Franz Josef Strauss ( CSU ) as a “forced democrats” in his book The Second Guilt or: From the Burden of Being German , published in 1987 . Among other things, he stated that there was a great longing for a “strong man” in the Federal Republic; The CSU politician Strauss has become the main chosen one of this longing and its symbolic figure. In a decision of the First Senate of June 26, 1990, the BVerfG gave Giordano the right.

Decision regarding criticism of magistrates

In a ruling from 2014, the constitutional judges gave the right to a complainant who had filed a complaint against the judge's “shabby, illegal and unworthy behavior of a judge” and stated that “she must be efficiently punished to prevent this judge from getting on the wrong track ”. This complainant had been sentenced to a fine in the lower court for insult.

According to the constitutional judge, however, the statement that the judge must be prevented from getting on the wrong track is not just about denigrating those affected, but also about a dispute that has a factual background. This is because the complainant referred to the behavior criticized by him in the supervisory complaint and intended to have this behavior checked by a higher-level body. Thus, although it is a matter of polemical and exaggerated criticism, which is based on a factual dispute. With regard to the other statements, the district court did not justify its classification as defamatory criticism at all, according to the constitutional judge.

"Obergauleiter" resolution

According to a ruling by the Federal Constitutional Court in 2017, the lower courts had wrongly classified the designation of the Green politician Volker Beck as “senior chief of the SA hordes” as an insulting criticism. The complainant was the right-wing populist politician Markus Beisicht , who had been convicted of insult by the lower courts. Because of its effect of suppressing the freedom of expression, the concept of abusive criticism is to be understood narrowly, affirmed however the constitutional judges. In the opinion of the Constitutional Court, the lower courts had misjudged the intention of Adisicht to want to criticize Beck's "previous behavior". The Green politician had played a major role in a blockade and insulted the demonstrators, which also included a witness, as “brown troops” and “right-wing extremist idiots”. It was therefore not just about disparaging Becks. Against this background, the lower courts should have weighed up freedom of expression and personal rights, instead of categorizing them as “defamatory criticism”, instead of categorizing them as “defamatory criticism” in which there is no weighing up.

Web links

Wiktionary: abusive criticism  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BVerfG NJW 2012, 1643, decision of December 7, 2011, Az. 1 BvR 2678/10.
  2. ↑ "utterance of crazed prosecutor 'not necessarily an insult" , press release of the Federal Constitutional Court for decision v. May 12, 2009, Az. 1 BvR 2272/04.
  3. ↑ See BVerfGE 54, 129; BGH NJW 1974, 1762.
  4. ↑ Admissible Chamber Decision: Freedom of opinion can also protect emotionalizing representations - "right to counter strike" against emotionalizing statements is not limited to a factual response; Reason I / 29
  5. ↑ OLG Frankfurt a. M. AfP 2008, 611 (Quoted from: Söder, in: Gersdorf / Paal: Beck'scher online commentary on information and media law, 11th edition, as of February 1, 2016, No. 178.)
  6. ↑ BVerfG , decision v. June 26, 1990, Az .: 1 BvR 1165/89 = BVerfGE 82, 272 = NJW 1991, 95
  7. ^ Higher Regional Court Munich , judgment v. July 28, 1989, Az .: 21 U 2754/88 = AfP 1989, 747
  8. ^ ISBN 3-462-02943-6
  9. ↑ Federal Constitutional Court - Press - Even exaggerated statements fall only within narrow limits as defamatory criticism from the area of ​​protection of freedom of expression. Retrieved September 12, 2017 .
  10. ↑ LTO, BVerfG continues line to Art. 5 GG: Designation as "Obergauleiter" no abuse criticism
  11. ↑ Federal Constitutional Court, 1st Senate 3rd Chamber: Federal Constitutional Court - Decisions - The wrong classification of an utterance as defamatory criticism shortens the fundamental right to freedom of expression. February 8, 2017. Retrieved September 12, 2017 .