Back to Index of Limits on Freedom of Expression

The German Constitution guarantees freedom of expression, freedom of the press, and freedom to receive information, among other enumerated communication rights, to every person. Disseminating untrue facts or “abusive criticism,” defined as statements that are not primarily made to debate a topic, but to defame a person, fall outside the scope of protection.

The communication rights may only be limited by general laws. In the context of heckling, such general laws could be criminal law provisions protecting personal honor or civil law norms on undisturbed enjoyment of premises, or other basic rights. However, these limitations have to be examined in light of the constitutional significance of the basic right they are restricting, meaning the limitations must themselves be restricted.

I. Overview of Freedom of Speech and Freedom of the Press

Article 5 of the German Basic Law, the country’s constitution, guarantees freedom of speech and freedom of the press, among other enumerated communication rights.[1] The communication rights are not restricted to Germans; they are applicable to “every person.” In addition to all natural persons, domestic legal persons may invoke it.[2] This also applies to foreign legal persons domiciled in the European Union (EU) due to the bans on discrimination under Union law.[3]

Article 5 states that

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures . . . . Freedom of the press . . . shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

Unlike the US Constitution, which codifies a prohibition for Congress to make laws abridging free speech, the rights codified in the German Basic Law additionally have a “radiating effect” on private law, meaning that private parties are indirectly bound by them.[4]

Back to Top

II. Scope of Protection

A. Freedom of Speech

The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in its landmark Lüth decision stated that

freedom of opinion, as the most immediate expression of the human personality living in society, is one of the noblest of human rights (un des droits les plus precieux de l'homme according to article 11 of the Declaration of the Rights of Man and the Citizen of 1789). It is absolutely essential to a liberal-democratic constitutional order, because it alone makes possible the constant intellectual exchange and the contest among opinions that form the lifeblood of such an order; indeed, it is ‘the matrix, the indispensable condition of nearly every other form of freedom’ (Cardozo).[5]

Freedom of speech covers value judgments and statements of facts, if those statements of facts form the basis for an opinion. The term “opinion” is understood broadly. Expressions of a viewpoint, the taking of a position, or the holding of an opinion within the framework of intellectual dispute fall within its scope. If the statement “contributes to the intellectual battle of opinions on an issue of public concern,” there is a presumption in favor of its admissibility. Untrue facts fall outside the scope of freedom of expression. The Federal Constitutional Court held that

this basic right [freedom of opinion] guarantees to all persons the right to freedom of expression without expressly distinguishing between a value judgement and a statement of facts. Everyone is at liberty to speak his or her mind freely whether or not he or she is able to furnish verifiable reasons for his or her judgement. (42 BVerfGE 163, 170 et seq.); at the same time, the purpose of free speech is to form opinions, persuade, and exert an intellectual influence over other persons. This is why value judgements, always meant to convince others, are protected by article 5, para. 1, sentence 1 of the Basic Law. The basic right is primarily designed to protect the speaker’s personal opinion. (7 BVerfGE 198, 210). It is irrelevant whether an opinion is valuable or worthless, correct or false, or justified emotionally or rationally. (33 BVerfGE 1, 14 et seq.). If the opinion in question contributes to the intellectual battle of opinions on an issue of public concern, there is a presumption in favor of the admissibility of that free speech. (7 BVerfGE 198, 212). Even harsh and exaggerated statements, in particular in the political battle of opinion, generally fall within the scope of Article 5, paragraph 1, first sentence of the Basic Law (54 BVerfGE 129, 139); the question can only be whether and to what extent the provisions of the general laws and the right to personal honor (article 5, para. 2 Basic Law) may draw limits here.

This does not apply in the same way to assertions of facts. False information is not an object worthy of protection from the viewpoint of freedom of opinion (54 BVerfGE 208, 219). The deliberate assertion of untrue facts is not protected by article 5, paragraph 1 of the Basic Law; the same applies to wrong quotations (BVerfG, loc.cit.). . . .  The communication of a fact is protected by freedom of opinion because and insofar as it forms the basis for an opinion. . . . From all this, the term “opinion” in article 5, paragraph 1, first sentence of the Basic Law must in principle be understood broadly: where an utterance is characterized as an expression of a viewpoint, the taking of a position, or the holding of an opinion within the framework of intellectual dispute, it falls within the scope protected by the fundamental right.[6]

Asking questions is also protected by freedom of speech, because questions play “an important role in the process of opinion formation.”[7] They are treated like value judgments.[8] Rhetorical questions, on the other hand, are not actually questions as they do not require an answer. The Federal Constitutional Court therefore treats them like value judgments or assertions of facts, depending on the content.[9] However, the overall context always has to be taken into account, so that something that at first sight looks like a question, actually qualifies as a false assertion of a fact.[10]

Not protected by freedom of opinion is “abusive criticism” (Schmähkritik). The Federal Constitutional Court defines abusive criticism as statements that are “no longer primarily aimed at addressing a debate in a matter-of-fact way, but at the defamation of a person. In addition to polemical and exaggerated criticism, it must include a degradation of the person.”[11] Such abusive criticism is not included in the scope of protection.

B. Freedom of the Press

Freedom of the press is not just a subcategory of freedom of expression; it is an independent and separate freedom under article 5 of the Basic Law. In addition to expressing and disseminating an opinion using the press, the basic right guarantees the “institutional independence of the press that extends from the acquisition of information to the dissemination of news and opinion; […] this includes the right of persons working for the press to express their opinion as freely and unrestricted as every other citizen.”[12]

Back to Top

III. Limits on Freedom of Speech and Freedom of the Press

Freedom of speech and freedom of the press are limited by general laws, provisions for the protection of young persons, and the right to personal honor.[13] The last two categories are generally seen as included in the category “general laws.”[14] The Federal Constitutional Court defines “general laws” as laws that “do not prohibit or target the expression of an opinion as such”, but rather “aim to protect a legal interest per se without regard to a specific opinion.“[15] Examples of general laws that might be relevant in the context of heckling are, among others, the Criminal Code, in particular the provisions on insult or on the dissemination of ideas that violate human dignity,[16] police law, and civil law provisions. However, these general laws have to be examined in light of the constitutional significance of the basic right they are restricting, meaning the limitations must themselves be interpreted restrictively in order to preserve the substance of the basic right (balancing of interests).[17]

With regard to heckling and confronting speakers, the Federal Constitutional Court has held that, for example, the right of the owner to undisturbed enjoyment of the premises that derives from section 903, sentence one and section 1004 of the German Civil Code is a general law that may limit the communication rights codified in article 5, paragraph 1 of the Basic Law.[18] Restrictions to prevent disturbances are not generally excluded. However, the state, unlike private citizens, may not use such a right to enforce its own interests and may only use it to prevent expressions of opinion if this serves the public interest.[19] The Court stated that

Therefore, in particular the wish to create a “feel-good atmosphere” in a sphere which is strictly reserved for consumer purposes and which remains free from political discussions and social conflicts cannot be used as the basis for prohibiting the distribution of leaflets. The state may not restrict fundamental rights in order to ensure that the carefree mood of citizens is not disturbed by the misery of the world (see BVerfGE 102, 347 <364>). Consequently, the fact that third parties are annoyed by being confronted with topics which they find unpleasant is irrelevant. What is particularly out of the question are bans which serve the purpose of preventing certain expressions of opinion for the sole reason that the defendant does not share them, disapproves of their content or regards them as discrediting the business of an enterprise because of the critical statements it contains.

On the other hand, the defendant is not prevented from using its right as the owner of premises to undisturbed possession to restrict the distribution of leaflets and other forms of expression of opinion to the extent necessary to guarantee the safety and functioning of airport operations. . . . [T]his is . . . an important common interest which can justify encroachment on fundamental rights.

The restrictions on freedom of expression must be suitable, necessary and appropriate for achieving the purpose. This excludes in any event the possibility of a general ban. . . . On the other hand, restrictions which relate to certain types of expressions of opinion or places or times for expressions of opinion in order to prevent disturbances are not excluded in principle.[20]

As an exception to the rule that communications rights may only be restricted by general laws, the Federal Constitutional Court allows a restriction of freedom of speech by section 130, paragraph 4 of the Criminal Code, which criminalizes “disturb[ing] the public peace in a manner that violates the dignity of the victims [of the Nazi regime] by approving of, glorifying, or justifying the National Socialist rule of arbitrary force.”[21] Even though the provision targets specific statements in relation to National Socialism and is not a general law, the Federal Constitutional Court held that the restriction is justified by “the injustice and the horror which National Socialist rule inflicted on Europe and large parts of the world, defying general categories, and of the establishment of the Federal Republic of Germany which was understood as an antithesis of this . . .”.[22] However, such an exception “does not justify a general ban on the dissemination of right-wing radical or indeed National Socialist ideas.”[23]

In addition to general laws, freedom of speech and freedom of the press can also be limited by other basic rights inherent in the German Basic Law. However, expressions of an opinion cannot be prohibited simply because they violate the constitutional order.[24] The constitutional restrictions inherent in the Basic Law must be defined by the legislature. The public order reservation of section 15 of the Act on Assemblies as defined by the courts, for example, is insufficient to limit freedom of speech.[25]

Back to Top

IV. Availability of Mechanism to Control Foreign Broadcasters Working on Behalf of Foreign Governments

Article 5 of the Basic Law also protects the right of every person to receive information from generally accessible sources.[26] The right to receive information has to be seen in light of the experiences of the National Socialist Regime where access to information was restricted, the state controlled opinions, and state prohibitions on the reception of foreign radio broadcasts and literature and art were in place.[27]

All types of sources are included in the right as long as they are generally accessible. The Federal Constitutional Court defines “generally accessible sources” as such that “are suitable and intended to inform the general public, understood as an indeterminate group of persons.”[28] This includes mass communication, in particular radio and TV broadcasts. It is irrelevant whether the source is located in Germany or abroad.[29] The Basic Law does not differentiate between national and foreign sources.[30] In particular, foreign nationals who permanently reside in Germany have a right to receive information from sources from their home country to keep abreast of current events and to maintain a cultural and linguistic connection.[31] The right to receive information includes the decision from which type of generally accessible source a person would like to get information.[32]

The Federal Constitutional Court has stated that

[a]rticle 5 paragraph 1, sentence one of the Basic Law GG protects not only the active process of procuring information but also the simple receipt of information. The Basic Law seeks to guarantee that the individual is informed as comprehensively as possible. An individual can also be ‘informed’ from sources that come to his or her attention without the participation of the recipient. Only the possession of information enables an independent selection. Being able to select between sources is the fundamental definitional element of every piece of information. If freedom of information did not guarantee that sources of information reach the individual, then he or she would be prevented from selecting among them through active participation. ‘To inform himself’ therefore also means the purely intellectual process of taking information in.[33]

In addition, as already mentioned, the right to free speech applies to every person, meaning that persons working for foreign broadcasters located in Germany can invoke it.[34]

However, all communications rights, including the right to receive information, are limited by general laws as outlined above.[35] If information from generally accessible sources from foreign broadcasters violates criminal law norms for example, it can be restricted.

Another limitation can be found in the Interstate Treaty on Broadcasting.[36] It provides that private broadcasters in Germany need a license to operate.[37] No license is needed for internet radio.[38] A license will only be granted if several enumerated requirements are fulfilled, among them, residence or seat in Germany, another EU Member State, or another Member State of the European Economic Area (EEA). Foreign broadcasters must therefore establish a seat in Germany, the EU, or the EEA. A license will not be granted to legal persons under public law or institutions that are government funded. This prohibition also applies to foreign public or state institutions.[39] It was reported that the German Commission on Licensing and Supervision revoked the radio license of Megaradio SNA because it allegedly uses too much content that is financed by the Russian government, thereby making it a de facto state organization.[40] The broadcaster has lodged a complaint with the Administrative Court of Kassel.[41]

Back to Top

Prepared by Jenny Gesley
Foreign Law Specialist
June 2019

---

Back to Top

Last Updated: 12/30/2020