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Wednesday, 17 July 2013

Art vs Personality right: German rapper Bushido causing "stress for no reason"?

From Germany comes the news that Berlin's mayor Klaus Wowereit has filed legal action against a new song by German rapper Bushido: "Stress ohne Grund" ("Stress for no Reason").  The news has prompted German media to excitedly discuss the legal conflict between one person's personality right and another person's right of free expression and/or freedom of art.  Today, the debate heated up further after the German authorities for the protection of youth have ruled that Bushido's song (together with the album that contains it) is to be banned for minors.

Bushido as shown on Wikipedia
In his latest offering enfant terrible Bushido is rapping about "coming to a party and causing stress for no reason."  However, the song also includes lyrics that are directly aimed at public figures and which can very easily, indeed only, be interpreted as a call for violence.  About Claudia Roth, the head of the German Green Part, Bushido raps: "I'll shoot at Claudia Roth and she willl be full of holes like a golf course".  About Mr Wowereit, who is openly gay, he includes rather crude, homophobic comments relating to his sexualty.  Mr Wowereit, who is known to be tolerant, clearly did not find the song funny and has started criminal proceedings.  Another politican, Serkan Tören, has also filed a criminal complaint after Bushido rapped that he wants "Sekran Tören to bite into grass".  That is a German colloquial term for wanting someone to die. Ms Roth does not want to start any kind of legal proceedings, finding the whole matter "sad".

The underlying legal conflict is not a new one and boils down to a balancing of competing human rights, those of Bushido's "victims" and that of the artist Bushido: the general personality right is protected under Articles 2(1), 1 (1) German Constitution.  Freedom of expression is covered under Article (1) German Constitution.  Freedom of art equally is a human right under Article 5(3) of the German constitution and the ambit of freedom of art is even wider than that of freedom of expression under Article 5(1). All types of art are protected and no "judgment" concerning quality of the art should be made.  Commentators agree that Mr Wowereit appears to have a case since Bushido's song either fall under the law of defamation under §§185 German Criminal Code or qualifies as enticement to violence.  Thus the balance would tip in favour of Mr Wowereit's personality right since the song's core message is defaming.  If he manages to obtain an injunction then the song, as is, would be completely banned from being sold in Germany (not only to minors).

Bushido has already defended his song and admitted he may have overshot the mark. He also said that he would "only shoot with words and not with anything else." However, he celebrated today's ban for minors as a "win" on Twitter.

You don't have to be a cynic to realise that the whole thing is a ploy to boost declining record sales.  The legal consequences (damages, fines, injunction) Bushido can expect are minor, as a jail sentence of up to two years is only a theoretical option. News site n-tv.de cites media lawyer Tim Hoesmann who says that demanding higher fines or jail sentences would be asking too much of the law. Even a ban will just prompt a "clean" version. It is disheartening that homophobic comments and calls for violence should help record sales even though Bushido states that the whole debate was "over the top" and that Mr Wowerewit was just keen on receiving damages.  Perhaps it is even more disappointing that a millionaire artist can't come up with something that's a little more inspired and could provoke a proper debate. Alas, should this be a matter for the courts? 

8 comments:

Anonymous said...

I didn't realise that it was my "personality right" that stopped people threatening to shoot me...

German Reader said...

Anonymous, she is right. This is what German law does, they Balance These rights. Article 1, 2 Grundgesetz and Article 5 Grudgesetz. Maybe this is different in other countries.

AK said...

This is only half the story. Pursuant to Section 241 German Penalty Code, "menacing" or "threatening" (German: Bedrohung) is also considered a crime. In other words: There is legal protection against such threats, apart from civil law claims due to infringement of personality rights.

German Reader said...

@AK In Wowereit's case it is not really §241, is it now? The IPKat is not writing it (scared!???) but Bushido sings that "in Berlin you'd be F****d into your B** like Wowereit". Classic §185 and the report is about Wowi taking legal action. I thought the Report was that he filed a complaint with the prosecution?

AK said...

I was mostly referring to Anonymous first comment. And see 2nd paragraph of the post:

Another politican, Serkan Tören, has also filed a criminal complaint after Bushido rapped that he wants "Sekran Tören to bite into grass". That is a German colloquial term for wanting someone to die.

That is a case of Sec. 241, I think. For all non-German readers, here is what Sec. 241 of the German Penalty Code says:

Section 241
Threatening the commission of a felony

(1) Whosoever threatens a person with the commission of a felony against him or a person close to him shall be liable to imprisonment not exceeding one year or a fine.

(2) Whosoever intentionally and knowingly pretends to another person that the commission of a felony against him or a person close to him is imminent shall incur the same penalty.

Birgit Clark said...

Dear Readers...

I just got an email from a friend alerting me to this unexpected and lively discussion. Thank you!! How cool it that.

I don't think Bushido's song falls under § 241 StGB at all, if anyone cares, thus I did not even mention it. I started out as a criminal lawyer back in the day. Then and now § 241 requires a level of seriousness on its objective level, i.e. that a normally sensitive person would expect that Bushido is serious about wanting Mr Tören's death. Noone would think that. If Mr Tören is scared for his life, then that's sad but the subjective side is not relevant in this instance.

Same applies for Ms Roth as regards § 241 StGB, however, what is said about her, in my view falls under § 185 StGB as it shows a complete disregard for her person.

I personally believe that Mr Wowereit as well as Ms Roth could have a civil law claim and could also take this forward in a criminal court insofar as § 185 StGB is concerned. I also don't think Bushido could claim to be justified under Article 5(3), even though his song is art in my view, nor under § 193 StGB.

@AK, do you honestly think a German court would qualify this as § 241 StGB?

I will see what the German blogospehre has to see but I'd be very surprised. I thought there was case law on this...

Birgit Clark said...

Ah, for those that can read German, do read this interesting blogpost by a German media lawyer.

http://fachanwalt-fuer-it-recht.blogspot.de/2013/07/bushido-wowereit-und-analverkehr.html

He shares my views, especially on §241 StGB - which is reassuring - but there are also some very good comments by readers. @AK, do join that discussion, might be more fun as they are all German lawyers. :)

AK said...

Thanks for the information and the corresponding link, Birgit.

One word of clarification: I do not think (and, btw, did not say) that a German court would come to the result that the lyrics of Bushido's song are a "threatening" under Sec. 241 German Penalty Code. For now, it is even not sure whether his criminal complaint will make it to the court room at all.

All I meant to say is that, in my opinion, 241 is the relevant penal provision in the case of Mr Tören. Whether he will succeed is another question, and -- yes -- lack of the required level of seriousness in this case sounds at least reasonable to me.

Again, with my first comment I was referring foremost to Anonymous' comment (# 1), trying to show that there are other legal tools to stop people threatening to shoot somebody than that person's rights of personality. Don't you agree?

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