Whether in a private family context or in public, every person has a right to express opinions and value judgements. This includes making a statement, weighing up arguments in favour or against or expressing suppositions.
Such statements are protected by the right to free speech contained in Art 5 of the German constitution (Grundgesetz).
Difficulties arise where expressions of opinion contain so called “abusive criticism”.
What is abusive criticism?
The term “abusive criticism” has been defined by the German Federal Constitutional Court (Bundesverfassungsgericht) as follows:
“A statement can be considered abusive where it contains critique no longer primarily aimed at addressing a debate in a matter-of-fact way, but at the defamation of a person; moreover, the statement must be of a controversial nature and an excessive degradation of a person” (BVerfG 82, 272, 284)
This means that even though a statement may appear to be excessive and harsh, it will not fall under the definition of abusive criticism where it has some factual basis and where the primary objective of statement is not the degradation and defamation of a person.
The distinction between a value judgement and a statement containing abusive criticism is a fine one. In view of the damage which can be done by such statements and the possible deep commercial consequences, it is advisable to obtain legal advice as early as possible following its publication.
A legal analysis should be conducted in order to assess competing interests whilst having regard to the surrounding circumstances. If a statement is to be considered abusive, legal steps should be taken early, so as to limit any damage caused.
Both individuals and businesses can be victims of abusive criticism. The experts at the law firm WIDLE BEUGER SOLMECKE can help you manage the following claims:
- Declarations to cease and desist
- Damages and compensation
Do you need to protect yourself or your company from personality right infringements? Do you need to defend yourself against damaging publications? Or perhaps you simply have general questions of the right to free speech and rights of the press? We are here to help!
German lawyer Christian Solmecke and his expert team are available to answer your questions. Call us on +49 (0) 221 / 951 563 0.