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Friday, 24 June 2011

Bundesgerichtshof on the "lawfulness of a press report"

The German Federal Supreme Court (Bundesgerichtshof) this week had to decide on the lawfulness of a press report about a book presentation by former news reader, journalist and author Eva Herrman (shown to the left), in particular whether this report was an infringement of Ms Herrman’s general personality right under the German constitution (case reference VI ZR 262/09 of 21 June 2011).


Eva Herrmann used to present the main news show Tagesschau on German television and is a somewhat controversial person with decisive views on various topics. While presenting her book “The Noah’s arc principle - why we have to save the family” (Das Prinzip Arche Noah - warum wir die Familie retten müssen) to journalists in 2007, Ms Herrman elaborated that traditional family values were again needed today, such as those that supported a higher regard for the role of the mother. Unfortunately, these family values had been abolished with the German student movement of 1968. She also referred to the Nazi time and said while most things had been dreadful during and Adolf Hitler had been a “totally crazy and highly dangerous politician”, the regard for families had been one of the very few good things during that time.


For those who are interested in what exactly Ms Herrman had to say, the Bundesgerichtshof’s press release includes a transcript of Ms Herrman’s actual comments as well as the wording of the press report (see here , in German).


The press report in dispute summarised Ms. Herrman’s various musings albeit in an ironic way, inter alia, referring to the fact that she was already married for the fourth time. The report also mentioned her comments on the Third Reich and ended with the words, that "thankfully" the book launch presentation ended after her comments on this topic. Ms Herrman objected to the report. She felt that its tone wrongly alluded that she was a supporter of the Nazi ideology. She further argued that the she was incorrectly quoted, which amounted to an infringement of her general personality right as protected under Articles 1(1) and 2(1) of the German constitution.

The lower courts, the Regional and Higher Regional Courts of Cologne, agreed with Ms. Herrman. The Bundesgerichtshof however agreed with the view of the defendants who had argued that Ms Herrman’s general personality right had not been infringed. In its press release of 21 June 2011 the Bundesgerichtshof clarified that the general personality right not only provides protection against being wrongly quoted (Fehlzitat), but also protects against other incorrect or falsified or distorted representations of statements. More particularly, the court stressed that the general personality right included the right to “one’s own word” and protected the individual from having statements attributed to them which have not made and which may compromise their self-defined claim to social respect (“selbst definierter sozialer Geltungsanspruch”). Upon a review of the press report in question, the court then found that Ms Herrman’s comments and theses had been correctly reflected as regards to the “choice of words, context, the thought process and general purport (Stoßrichtung)”.


The Bundesgerichtshof's press release can be found here (in German).


Merpel thinks that the court got it right and is pleased with this victory for free speech. This Kat however has some sympathy for Ms Herrman. Noone wants to be seen as having views that even remotely resemble those of the Nazi ideology and this Kat can understand why she took the matter to the courts to set the record straight.

4 comments:

Anonymous said...

I was once told by a German Patent Attorney that the provisions of German patent law providing compensation for employee inventors for use of the invention by the employer, and the right to take over his invention where the employer is no longer interested, are some of the last Nazi-era laws that remain on the statute book.

Jeremy said...

The employee inventor statutes simply put into legal form the contents of collectively-negotiated deals between employers and unions back in the 1920s, I believe.

Dr Mark Summerfield said...

People who do not wish to be 'misquoted' as sympathetic in any respect to Nazi ideology should probably avoid expressing positive views about any aspect of that regime.

To do so is undoubtedly an expression of free speech, and to be defended as such. However the consequences are completely predictable, and it is surely the responsibility of the (deliberately outspoken) speaker, not the courts, to deal with this.

If the day ever comes that one can speak with approval of the Nazi regime without causing outrage, I shall be concerned that we have forgotten what happened.

Anonymous said...

I agree with Mark.

Furthermore, we must remember that the Nazis and their values are still revered by a part (be it a tiny minority) of the German community, and I am not referring to swastika-flag-waving-skinheads. Such attitudes to these evil people still express themselves in places like Serbia.

I find any remark that tries to highlight a 'nice' Nazi belief as indicative of a person who does not find 100% abhorent the actions of the Nazis or other 'ethnic-cleansing' actions.

Being happy with a Nazi-era statute, such as a law that says domestic waste should be collected weekly, is completely different to saying "at least the Nazis understood the needs of the people and their requirements for satisfactory waste management". The newsreader appears to have gone for the latter means of expression.

I like the way Germany clamps down hard and prevents history from being re-written, because without their actions it will be.

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