Germany: CSU-NPD-decision (Wahlkampf case)

The complainant had compared the conservative CSU party to the right-wing extremist NPD during an electoral campaign. CSU sued for defamation and was successful in first instance. The complainant then appealed to the Federal Constitutional Court.

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CSU-NPD-decision (Wahlkampf case)
BVerfGE 61, 1, 1 BvR 1376/79 of June 22, 1982

Theme:	Defamation
Sub-Issues:	Defence of opinion and value judgment
Test:
Penalty:
Decision:	Polemic expressions made during electoral campaigns are protected under the right to freedom of expression even if they reflect untrue facts.
Jurisdiction:	Germany (Federal Constitutional Court)

Facts:

The complainant, a candidate in European parliamentary elections for the Social Democratic Party, referred to one of the opposition parties, the conservative Christian Social Union (CSU), as the "NPD of Europe" in a campaign rally. At the time, the NPD was a notorious extreme right-wing party in Germany. The CSU sued for defamation and won at first instance. The complainant lodged an appeal with the Federal Constitutional Court.

Held:

The Court ruled in favour of the complainant.

Taking into account the broad protective reach of the right to freedom of expression, including in relationships between private individuals, the Court held that opinions are granted a high degree of protection:

The [lower court] wrongly considered the complainant's expression to be an untrue expression of fact instead of an expression of opinion protected in principle by the freedom of expression guarantee ... This fundamental right (to freedom of expression] provides everybody with the right to freely express their opinions without distinguishing expressively between "opinions" and "expressions of fact": everybody is supposed to have the right to express their thoughts even if they do not or cannot give any reasons for their judgements; it is the function of expression of thoughts to have an intellectual effect on the environment, to constitute common opinions, to convince other people ... The range of protection primarily refers to the personal view of the person making the expression, regardless of whether the expression is to be considered "valuable" or "not valuable", "true" or "false", emotionally or rationally reasonable. If a statement is to be considered a contribution to the intellectual clash of opinions concerning a subject relevant to the public, the presumption is that this statement enjoys protection ... Even sharp and exaggerating expressions, particularly in public discourse, are subject to the protection of [the right to freedom of expression].

The matter to be decided, according to the Court, was to whether the impugned statements were to be seen as statements of fact or statement of opinion. It explained that false statements of fact enjoyed far less protection than other statements:

False information is not a value worth protecting with respect to the freedom of expression. The deliberate expression of false facts is not protected; the same applies to false quotations. In other cases of expressions of facts, one has to differentiate, taking into account that the function of the freedom of expression must be given effect. The presumptive protection for the freedom of expression does not apply fully to the expression of facts; [they] may be limited to a greater extend than expressions of personal opinions. The element of personal statement in an intellectual controversy is essential to the identification of expressions of "personal opinions" being under the protection of the fundamental right guarantee, regardless of the value, truth or reasonableness of the statement. In a strict sense, statements of fact lack that personal element and cannot therefore be statements of opinion. These statements are protected by the right to freedom of expression in so far as they form a precondition to the development of public opinions which is [constitutionally] guaranteed. (p. 8, references omitted)

The Court went on to explain that the term "personal opinion" had to be understood broadly.

As long as the element of personal statement is essential to the expression, it enjoys protection. This must also apply if, as happens quite often, this element is combined or mixed with statements of fact - at least if both elements cannot be separately judged and the factual element of the statement is secondary to the element of personal opinion. If one would consider the factual element primary in these cases, the protection of freedom of expression would be disavowed significantly. (p. 9, references omitted)

Applying these principles, the Court held that the impugned statement was not to be understood as a statement of fact. Given the context - an election rally - it was to be understood as an expression of opinion. Furthermore, the Court pointed out that a literal interpretation of the statements as statements of fact was absurd: there was no European NPD and the complainant would never have intended to make such an absurd statement. The statement was clearly intended as a polemic contribution to a debate and intended to convince the audience, none of whom would have taken the statement literally.

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