What is it all about?

The 4th Civil Senate of the Higher Regional Court of Stuttgart has ordered the author of a Facebook post in which a German politician is referred to as a “stupid piece of brain vacuum” to cease and desist and has amended the decision of the lower court in this respect. However, the action was unsuccessful with regard to the claim for monetary compensation asserted in addition to the claim for injunctive relief.

The plaintiff, who has worked, among other things, as a representative of the state of Berlin to the federal government, as State Secretary for Civic Engagement and International Affairs in the Berlin Senate Chancellery and as deputy spokesperson for the Federal Foreign Office, criticized Dieter Nuhr on Twitter in response to a contribution in his programme “Nuhr im Ersten” and used the words “ignorant, stupid and uninformed”, among others.

The CDU parliamentary group leader in the Brandenburg state parliament commented on this on Facebook. The defendant commented under this post:

“Rarely seen such a stupid piece of brain vacuum in politics as C.. Should just disappear and pay off her family’s social debts.”

The plaintiff initially sent the defendant a warning letter because of this – now deleted – post and then filed an action for injunctive relief and damages.

The defendant claimed that he was not the author of the contribution and that someone must have taken possession of his notebook.

The Heilbronn Regional Court dismissed the action in its entirety at first instance, stating that the post was in any case still covered by freedom of expression.

Decision of the Senate

The Senate granted the application for injunctive relief.

The statement was a defamatory criticism for which the defendant was liable because he had not sufficiently secured his computer and his Facebook user account against unauthorized access and had not presented sufficient connecting facts that would eliminate a presumption of conformity developed in accordance with the principles of the highest courts.

Moreover, according to the defendant’s statements at the appeal hearing, the Senate was convinced that he himself had written the contribution at issue, as he had distanced himself from the statements several times, but at the same time defended the contribution by saying that he must be allowed to react to the plaintiff as a politician in order to “finish her off” in view of her own behavior (described in more detail by the defendant).

Although caution is generally required when assuming defamation, this should be assumed in the case of the defendant because his contribution no longer focused on the debate on the matter, but on defaming the person and his statement no longer had any comprehensible connection to a factual dispute, but was only about the baseless disparagement of the person concerned as such:

The statement on the defendant’s Facebook user account characterizes the plaintiff as a stupid and brainless politician who should disappear from politics (“disappear”) by using the terms “stupid” and “brain vacuum”.

It is a statement which, through the additional use of the term “piece” (specifically: stupid piece of brain vacuum), contains a component which devalues and defames the plaintiff, because a person (or parts thereof) is not described as a piece, as this denies him any personal dignity (Article 1 of the Basic Law). Although the statement was made in the context of the contributions of the plaintiff and the CDU parliamentary group leader in the Brandenburg state parliament and thus outwardly linked to a – publicly conducted – dispute, it was completely detached from the previous dispute in that the plaintiff was only personally insulted and attacked. Even if the plaintiff herself had initially used strongly derogatory terms that also violated personal rights – “ignorant, stupid and uninformed” – the defendant’s unspeakable comment could no longer be regarded as an adequate reaction to the plaintiff’s previous behavior.

The statement “should simply disappear and pay off her family’s social debts” is also a value judgment that is not covered by freedom of expression. This was seen as a disparagement of immigrants and the plaintiff was told to disappear or run away and keep her mouth shut. In this respect, too, there was no reference whatsoever to the discussion about the behavior of the cabaret artist Dieter Nuhr, which is why this statement also served solely to disparage the plaintiff.

The Senate denied the claim for monetary compensation, which was also asserted, on the grounds that, despite the serious violation of personal rights, there was no unavoidable need for the award of monetary compensation as required by the highest court case law, especially since the plaintiff herself had used strong words and thus initiated the discourse in the first place and the post in question had been deleted promptly. Against this background, the injunctive relief granted was sufficient.

The Senate did not allow an appeal on points of law as this was an individual case; no fundamental significance was apparent. The decision is therefore legally binding.