At the beginning of 2019, a false quote by the German politician Renate Künast (Bündnis 90/Die Grünen) was spread on the social network Facebook, to which numerous Facebook users reacted with hate speech directed against Ms Künast. Ms Künast then filed a request for information with the Berlin Regional Court pursuant to Section 14 (3) of the German Telemedia Act (TMG, old version) in order to oblige Facebook to hand over the inventory data of the authors of the comments so that Ms Künast would be enabled to take civil action against them . The success of such a request presupposes, among other things, that the comments complained of are illegal content pursuant to § 1 para. 3 NetzDG, in this case criminal insults pursuant to § 185 StGB.
Upon Ms Künast’s request, the Berlin Regional Court only allowed the provision of information regarding some formal insults such as “piece of shit” or “bitch” and rejected the request for the most part. The Higher Regional Court Berlin (Kammergericht), as the next higher instance, allowed the provision of information also with regard to further statements such as “green filthy pig” and “perverse filthy sow”, but essentially confirmed the opinion of the Regional Court. According to the Kammergericht, comments such as “paedophile bimbo”, “mentally ill” or “brain-amputated” were covered by freedom of expression and thus not punishable. In particular, the statements in question were factually connected to an interjection by Künast in the context of a debate in the Berlin House of Representatives in 1986 on the position of the Greens on paedophilia. Such hostilities, which were not mere formal insults, were to be accepted by professional politicians.
In response to the constitutional complaint lodged by Ms Künast against the decision of the Kammergericht, the BVerfG countered this view. Although the BVerfG stated that the boundaries of permissible criticism of politicians are to be drawn wider than in the case of private individuals. However, this should not lead to politicians having to accept any insult, as long as it is not purely defamatory criticism. Even if there is a factual connection with a public debate, the meaning of each individual statement must be examined and then, within the framework of an overall assessment of the circumstances of the individual case, the freedom of expression of the person making the statement (Article 5 of the Basic Law) must be weighed against the right of personality of the person concerned (Articles 1 and 2 of the Basic Law). This applies to private individuals as well as to politicians.
The Regional Court and the Higher Regional Court failed to carry out this necessary weighing in their decisions and instead wrongly assumed that professional politicians had to accept any hostility in the public battle of opinions, as long as any factual connection with a public statement or factual debate could be established.
The BVerfG correctly points out that politicians also have a claim to the protection of their personal rights and that this is also in the public interest. If the personal rights of politicians are not sufficiently protected, a high degree of willingness of the individual to participate in the state and society can hardly be expected.
The BVerfG also rightly opposed the opinion of the courts of instance that, due to the decline in language and the brutalisation to the point of radicalisation of social discourse that can be observed on the internet, a more generous standard should be applied in favour of the authors of hate comments. In the opinion of the BVerfG, it must be taken into account whether a statement was made verbally, ad hoc and in a heated debate or – as in the present case – in text form. Especially in the case of written or textual statements, however, a higher degree of consideration and restraint is to be expected from the author. This also applies to statements in social networks.
The BVerfG upheld Ms Künast’s constitutional complaint, overturned the decisions of the courts of first instance and referred the case back to the Kammergericht for a new decision.
The case of the politician Tareq Alaows (Bündnis 90/Die Grünen) shows what hate speech in social networks can lead to. Due to numerous attacks and threats against his person, he was forced to withdraw his candidacy for the parliamentary elections in 2021. The announcement of Ms Ricarda Lang’s candidacy as federal leader of Bündnis 90/Die Grünen in December 2021 was also followed by a large number of hate comments on social networks. Preu Bohlig & Partner has already been successful in several cases for Ms Lang with requests for information pursuant to Section 21 (2) and (3) TTDSG (Section 14 (3) TMG a.F.). Due to the recent decision of the Federal Constitutional Court, the chances of success of such requests are likely to have increased even more.
