"Nutty prosecutor" not necessarily an insult

The complainant is a journalist, publisher, publicist and co-editor of a major German newspaper. In. June 2003, the television station "n-tv" broadcast the programme "Talk in Berlin", in which the complainant participated as a panelist. The programme dealt with the preliminary proceedings against the then Vice-President of the Central Council of Jews, lawyer and presenter Dr. F., who had come under suspicion of illicit handling of narcotics. In the context of the programme, the complainant expressed, among other things:

"And I am quite sure that this public prosecutorial, one really has to say: scandal of a very obviously, I say it quite openly, crazed public prosecutor, who has an extraordinarily bad reputation here in Berlin, who was suspended from office a year ago, who is taking action again for the first time ever. This scandal will undoubtedly lead to the local judicial authority and the public prosecutor's office assigned to it having to ask themselves whether it is possible to take action against private individuals in this way."

The Tiergarten District Court sentenced the complainant to a fine of 30 daily sentences of € 300.00 each for insult. The court based its decision on the fact that the term "crazy" is understood colloquially in the sense of "crazy" or "nuts". This, however, was a defamatory criticism aimed solely at defaming the person concerned and was therefore generally inadmissible. The appeal against the judgement was dismissed by the Court of Appeal at the request of the Public Prosecutor's Office without further explanation.

The First Chamber of the First Senate of the Federal Constitutional Court overturned the decisions because they violated the complainant's fundamental right to freedom of expression under Article 5 (1) sentence 1 of the Basic Law. The courts wrongly regarded the designation as "loopy" as generally inadmissible defamatory criticism and therefore did not carry out the balancing of the aggrieved party's right of personality and the complainant's freedom of expression that was required here. Because the term defamatory criticism denotes a particularly serious violation of honour, in which there is no longer even a balancing with freedom of opinion, but rather freedom of opinion is absolutely displaced, this term is to be defined narrowly. Even a disparaging statement in itself only becomes defamatory criticism when the focus is no longer on the substance of the matter, but on defaming the person, even beyond polemical and exaggerated criticism. Even if the term "crazy" as such has a defamatory content, the context in which the statement is made must be taken into account when assessing a defamatory effect.

The context of the statement in connection with the criticism of the information policy of the competent public prosecutor's office argues here against the assumption that the complainant had wanted to deny the person concerned mental health across the board and thus defame him regardless of his factual concerns. Rather, from the point of view of an unbiased public, it is obvious that he also wanted to criticise the Attorney General's handling of the personal rights of an accused person by this choice of term. The removal of the term "nuts" from this context obscures the fact that the disputed statement was made in the context of a factual dispute about the exercise of the state's powers of criminal prosecution. In this context, however, the choice of term used cannot be denied any factual relevance, since it can certainly convey the factual statement - even if in a polemical and disparaging form - that a public prosecutor who is regarded as responsible had lacked the necessary restraint and consideration for the personal rights of an accused person in an improper and exaggerated manner in the course of criminal prosecution activities.

The term "crazy" also does not have such a serious defamatory content that the expression would appear in every conceivable factual context as a mere disparagement of the person concerned and would therefore always have to be understood as a personally defamatory slur, irrespective of its concrete context, as can be the case with the use of particularly serious swear words - such as from faecal language.

Part of the freedom to express one's opinion in a self-determined form, which is encompassed by Article 5.1 sentence 1 of the Basic Law, is also that the person making the statement can attack public officials whom he or she regards as responsible in an accusatory and personalised manner for the way in which power is exercised that is to be criticised, without having to fear that the personal elements of his or her statement will be considered detached from this context and as such form the basis for a drastic judicial sanction. The personalisation of a factual matter in an accusatory form is possible in such different forms and intensities that it would not be justified to allow freedom of expression to always take a back seat in these cases, as in the case of vituperation, regardless of the further circumstances. Rather, it is necessary to weigh up whether the person concerned is the subject of the statement as a private person or his or her public activity with its far-reaching social consequences and what repercussions the statement has on the personal integrity of the person concerned.

Order of the Federal Constitutional Court of 12 May 2009 - 1 BvR 2272/04 -


Source: Press release of the Federal Constitutional Court


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg de