On appeal vi Renate Künast, the Berlin Appellate Court, by order of March 11, 2020, reversed the decision of the Berlin Regional Court of September 9, 2019, as amended by the interlocutory appeal order of January 21, 2020 (cf. this post) on the application against Facebook for permission to hand over user data was again partially corrected in favor of the politician and classified a further six of the total of 22 user comments in dispute as insults within the meaning of Section 185 of the German Criminal Code (StGB) in the light of supreme court and constitutional case law on freedom of speech.

Facebook was therefore allowed – in addition to the six cases already permitted by the Regional Court – to provide information in these further six cases about the name of the user, the user’s e-mail address and the IP address used by the user for the upload, as well as about the time of the upload. In all other respects, however, the Berlin Appellate Court upheld the decision of the Berlin Regional Court and therefore rejected the politician’s further appeal in this respect.

In their current decision, the judges of the 10th civil senate of the Kammergericht emphasized, among other things, that the claim asserted in the proceedings here under Section 14 para. 4 of the German Telemedia Act for permission to surrender user data is only a preparatory claim which, in terms of procedure and content, is clearly different from the more far-reaching claims to cease and desist from statements and to other benefits (e.g., monetary compensation), which have not yet been decided in the present proceedings. Accordingly, Facebook as the service provider was also involved in the proceedings here, but not the respective authors of the 22 comments.

In the opinion of the judges of the 10th Civil Senate, six out of sixteen of the comments still to be examined in the appeal fulfilled the criminal offence of insult under Section 185 of the Criminal Code, irrespective of the strict requirements that the Federal Constitutional Court places on interventions in the fundamental right to freedom of expression. These six statements had such a massive defamatory content that they could be classified as defamatory criticism or the equivalent of formal insults. Even taking into account the thematic context in which the users had written their posts, these verbal lapses could only be classified as invective against the person of the applicant outside of a factual debate. A substantive discussion of the topic was lacking in this respect. Rather, the applicant, as a supposed proponent of decriminalizing “consensual or nonviolent” sex with children, as implied by the initial memo, is denied any dignity. Under the protection of the anonymity of the Internet, the applicant was made the object of obscene accusations that were contemptuous of women and degrading. Through this and through unbridled insults using particularly drastic terms from the area of fecal language, the applicant is attacked in such an excessively exaggerated manner that only the personal vituperation is in the foreground and a factual discussion is completely lost from view. In the case of such defamation, the broadly drawn limit of permissible expressions of opinion is clearly exceeded, irrespective of the reason for the lapses, and the exceptional circumstance of a defamatory criticism that can no longer be legitimized or a formal insult equivalent to such criticism is reached.

On the other hand, in the opinion of the judges of the 10th civil senate of the Kammergericht, the applicant’s appeal had to be denied success with regard to the remaining ten comments that were the subject of the proceedings. The judges of the 10th civil senate would in no way disregard the fact that these were likewise highly defamatory designations and disparagements of the applicant. However, taking into account the requirements of the Constitutional Court, it was to be noted that the threshold for the criminal offense of insult pursuant to Section 185 of the Criminal Code was not exceeded in each case. This is because there is no case of defamation without consideration (attack on human dignity, formal insult or defamatory criticism) and the infringement of the applicant’s right of personality also does not reach such a weight that the statements, taking into account the specific context to be considered – in contrast to the aforementioned six comments – would only appear as a personal disparagement and defamation of the applicant.

According to the judges of the 10th Civil Senate, they would not under any circumstances fail to recognize that there has been a decline in the use of language and, in particular, that the use of anonymity on the Internet has led to a brutalization and even radicalization of social discourse. However, this could not justify a different legal assessment. The question raised by the applicant as to whether the peculiarity that, for constitutional reasons, stricter standards must be applied to persons in political life is still in keeping with the times and whether the legal system and the judiciary should not place themselves in a more protective position before political decision-makers, should not be denied its justification. However, the applicable legal system and the case law of the Federal Constitutional Court in this regard do not currently offer any scope for enhancing the protection of personality rights in the area to be assessed here.

This decision is final; the 10th Civil Senate of the Appellate Court did not allow an appeal against its decision, as the case was neither of fundamental importance nor did it require a decision by the appellate court in order to further develop the law or to ensure uniform case law.

Berlin Regional Court: original order – 27 AR 17/19 – dated September 09, 2019
Berlin Regional Court: Remedial Order- 27 AR 17/19 – dated January 21, 2020
Kammergericht: Decision – 10 W 13/20 – of March 11, 2020