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Excitement in the danger area
The decision of the Landgericht Berlin to announce Facebook user data to the abused MP Künast is causing a great stir. To have done a "shame on the rule of law" is yet another of the more restrained job descriptions that the judges involved in the decision must "put up with". On the volume of the countermovement you can be curious in this case. Normally, after a reasonable moment of horror, the Judge's Association and then the Federal Minister of Justice or at least the press office of the Justice Senator of Berlin would have to demand a little more respect and restraint when dealing with independent judges. And in other areas of the judiciary, the question may be raised: Do you have to accept today as a judge already all the insolence of unsuspecting idiots without resistance?
Of course that was now, dear readers, just a joke! I'll say that just to be on the safe side, before another haphazard verbal abuse goes off against me, because I'm supposed to be a completely stupid sexist idiot who does not even want to protect a deserving politician from filthy insults by people screaming at the edge of illiteracy. But I'm happy to be ready for that, as will soon become apparent.
I am a specialist to this extent, as I myself occasionally of persons who are well-versed in reading and writing, with public acclaim as "abgehalfterter", allegedly impotent, "misogynous ex-judge" on the way to the "new rights", as "Penishänger" , "Tail Carrier", etc., whose pathological misogyny has been proven by reference to a publication in which he ironized the hypocrisy of women's humorous presentation of alleged "concern" about women's humiliation on TV. I do not want to weep over these and other masterpieces of the debunking intelligence here, but just mention that the quoted and other utterances did not (only) take place in the world spaces of Facebook, but in public service broadcasters and quality media, and from people who are themselves truly sincerely admire yourself for your heartfelt sensitivity to any soul injury.
If you want to defend against such a filth in court or even in nicely formulated letters of complaint, you take several risks: You get, for example, letters of an ARD director or a member of parliament, in which one is taught that, first, the press secondly, it was a good thing, and secondly, one should not do so and deserve it thirdly. If you dare to file a criminal complaint against an insult for libel, slander or defamation (§§ 185, 186, 187) or civil suits for omission or compensation for pain (§§ 823, 253 BGB), there is a critical journalist, who is writing a super gloss about a process hansel who is sure to have either boredom or a character defect. Then you get an employment order plus reference to the private prosecution and a plaintiff judgment from the civil court, which leads to the one who has been sued, published immediately, the court in the view of the judiciary from now on publicly as this or to designate that.
border areas
No day goes by without people talking, sending, thinking, or suggesting how to counteract, restrict, ban, prosecute, or at least marginalize "hate" communication, especially on the Net. Not really amazing is that solutions are difficult to reach and all proposals and advances are highly controversial. Because what "hate", delimitation, impoliteness, "bullying" are, is regularly in dispute: Still every protester in the black block holds "bull pig", every life guards "child murderer", every AfD voter "traitors", etc. for factual criticism whose polemic is always justified by the superiority of the adversary and his own pious goodness.
The processes are, as everyone knows or feels, especially in the field of communication fuzzy, painful, contradictory. Everyone wants to be able to say what they want, but they do not have to hear what the others are saying. People's honor is tremendous, and the boundaries between personality and society are fluid in the field of honor. It is clear, in principle, that communication that is as free as possible is an extraordinarily high good, which had to be fought for a long time and is withheld from many people with brutal force and threat. As in other areas of freedom, there is concern that the freedom of the social and legal constitution will be exploited and abused in order to limit these freedoms at the expense of individual groups.
In this respect, the case of the deputy Künast meets in outstanding example in a hornet's nest of the highest sensitivity: Internet, child abuse, sexism, justice - these ingredients guarantee talk show material for a week and a lot of excitement, if only because they combine into ever new scandal mountains and let it pile up. This is no coincidence and not to criticize. It makes it abundantly clear once again that there is often a lack of serious, honest and lasting discussion about how society wants to deal with the enormous current changes in public communication, how to arrange and redefine it.
If you want to evaluate the decision of the LG Berlin, you have to first make clear what it is about. The matter is something "indirectly" raised and clothed in a legal issue from the Telemedia Act: According to § 14 paragraph 3, a service provider (here: Facebook) may provide information on inventory data (here: name and address of users), as far as this Enforcement of civil claims because of the violation of absolutely protected rights (here: honor) due to illegal content (here: insults, bad slander) is required. It was in this case, therefore, to decide whether comments that Facebook users had set to a "post" of another user and in which the deputy Renate Künast was badly abused, the facts of the aforementioned criminal standards met. That was certainly not the case for the source post. He referred, however, for whatever reason, to a somewhat biased article in the "world" of 2015, in which it reported that a commission had written a report on pedophile aberrations in the Greens and the "Colorful List" 30 years ago, tried to create a "scandal" in connection with the politician Künast, who had nothing to do with the matter except a somewhat stupid interjection in the House of Representatives. You do not have to reschedule this interjection today. The politician interprets him as people like to look back on their lives, friendly and can not recognize a questionable position even when looking back. This is normal: Also Rudi Dutschke said in 1974 with the motto "Holger, the fight goes on!" sure only that he would like to send a combative letter to the "Frankfurter Rundschau" tomorrow.
If one, whether as a normal citizen or as a lawyer without years of practice in opinion and constitutional law, wants to approach the legal issues of freedom of expression and insult, one must first, like the prince of Sleeping Beauty, fight through a hundred-year-old thorny scrub. It consists of layers of words that have been piled up by many generations of research assistants (so-called HiWis) at the Federal Constitutional Court, who may find it career-friendly to fill as many pages as possible with quotes that nobody reads. If the right of honor were a room in the house of law, the wallpaper layers of words in the room would be so thick now that hardly any furniture would fit in and the stay would be really uncomfortable.
A systemic obsession of the HiWi entity is to always include in every decision on a legal issue everything that has ever been decided on this legal issue, but in quite different cases. As over the years inevitably new facets facets come to it and you can not formulate as a so-called "guiding principle" for the databases and eternity, "Ms. Mueller was not allowed to say to Mr. Meier 'idiot', one must come up with something abstract : "The fact that the surnames of those involved begin with the same letter does not justify on its own, neglecting publicity effects when looking at honor defeats." This sentence is obviously stupid stuff; But I have no doubt that he would do it in "Guidelines", lawyers training and databases. After that nobody would ever be more interested in Mrs. Müller, Mr. Meier and the jerk; Rather, the sentence would be cited as a law on the question of the name right or interpreted by an esoteric doctoral student of political science on 380 printed pages as a subtle questioning of the meaningfulness of impersonal personality.
Will say rhubarb rhubarb. And if the incomparable Federal Constitutional Court in each inconsequential order to insult must cite itself for 17 pages and execute, that the freedom of opinion for the democracy is "absolutely constitutive", however its barriers find in the general laws and (!) In the right of the personal honor , then the latter is correct, but the inflated significance is not. It does, however, mean that every court in the country dealing with one of the countless concrete cases can with some justification hope to obscure the emptiness of thought by simply repeating the whole disjointed body of the text, and instead giving an impression of To produce scholarship that at least extends to the next instance. In the reality of life, of course, the sticking point may often lie in that inconspicuous "and" of Art. 5 (2), second sentence, of the Basic Law: the limit of the laws applicable to all, including the penal laws, "and" the barrier of the law of the personal Honor. That sounds like "law and law", which wants to tell us: this is not the same thing; and it generally depends on the concrete.
The individual case
Quite schematically, it seems to me, is also the decision of the LG Berlin. If one filters out of the "general principles" everything that can not have anything to do with the case in the first place, then there is not much left as a "superset" for subsuming: one must first decide whether or not the statements concerned are relevant are "opinions" or "factual statements". This is pretty easy: there are always "opinions". Then one has to find a yardstick for the evaluation in a one-sided-other-mode: insulting can not be everything that someone finds offensive when it hits him. It's about more general, objective standards. Here are aspects of public communication, their role and importance for living together, the state, the protection of majorities, minorities and individuals to consider. Polemical factual criticism is to be evaluated differently than pure humiliation without factual connection. The courts call the latter "vilification". It is forbidden in principle; it can only be accepted in exceptional cases. All this has the district court, although hidden under all sorts of superfluous written off Brimborium, quite true.
But then the decisive point approaches with the sentence: "According to these principles, the following applies here:" That is to say: The principles and the conception of the standards are finished; Now it's up to the practical application. Now it has to show, if one has understood one's own quotes and can fill the headlines with life. For this, one must unfortunately say, the district court has surprisingly little occurred. His reasoning goes like this:
"The statements challenged by the petitioner are all responses to the post posted by a third party on the social media platform operated by the Respondent, which cites a petition filed by the petitioner and commends him as he would by the public is perceived "(... ...)
"The reactions to these are all permissible expressions of opinion, they are sometimes very polemical and exaggerated and also sexist." The applicant has itself but with their interim, which it has not been publicly revised or clarified, to a public in expressed a very significant degree of touching question and thus provoked resistance from the population. "
That is a little bit poor. The following is a list of all insults, which are each acknowledged by the district court with the remark that there is "an examination of the matter" or that there is "a factual connection"; moreover, the politician has to accept what has been said, because it refers to the Post, to being in the context of her statement, and to expressing herself.
These "most" reasons of the court seem to me undercomplex and strangely twisted. The fact that the utterances refer to something - an alleged opinion - has no meaning in itself; it is common to most utterances. It is correct to judge the verbal abuse in relation to the original Facebook entry, which in turn distorted the actual utterance (interjection) of those concerned polemically. This could justify the fact that further commenting on this criticized the (alleged) opinion or tendency of the politician strong, polemical and exaggerated. Of course, there must also be a weighting filter that prevents positional statements from becoming "as high as possible" by adding "exaggerated" judgments, adding an exaggerated rating or twist to each further "poster" without the legal limit at each level the admissibility is exceeded. This is a question of "total" responsibility and the obligation to examine: If it is at the beginning that a person has eg called for constitutional restraint in the application of § 176 (sexual abuse of children), can not by a mere chain twisting at the end the claim to be lawful that the person is a "known child molester."
Statements that are the subject of the application by Mrs. Künast, go beyond subject-related insulting partially and move so far on a different qualitative level: characterizations as a "dirty cunt" or "piece of shit" or evidence such as, a person was "as a child probably a little bit much fucked ", even with a generous consideration of what you might consider as a" factual "background. They are clearly used exclusively to cause as much degrading injuries to personal honor. It is not clear what such insults could have for any communicative value, which goes beyond their mere formal presence. The strengthening of the fundamental rights position, which is caused by the admissibility of this simple presence, is evidently at the same time suspended and turned into its opposite by the damage that they cause for the freedom of communication as a whole. More concrete: the possibility "Shut up!" to shout, regardless of the content, shows the formal freedom position of open communication. However, their excessive abuse leads to the fact that content communication for the weaker becomes impossible.
For others of the utterances mentioned in the proceedings, I do not believe that to the same extent. I therefore agree with the criticism that the decision consistently receives, not in all results around. The reason, of course, seems to me inadequate. In that regard, one may be curious what the appellate court decides.