Whatsapp: family members may offend each other

The Higher Regional Court of Frankfurt ruled that within the closest family circle, there is a space free of dishonor which makes it possible to express oneself freely without having to fear legal prosecution, so that the son-in-law is not entitled to injunctive relief in the case of allegations made by the mother-in-law to her sister and her daughter that he mistreats his family members.

The plaintiff is the son-in-law of the defendant. He requires his mother-in-law to stop claiming or spreading numerous statements about him. The plaintiff and the defendant’s daughter have two children together and remain married. At the beginning of 2016, there was a heated marital dispute. According to the plaintiff’s account, in this context he grabbed his son, who did not want to leave the room on his own, by the neck/neck area and “pushed” him from behind so that he would run a little faster. The plaintiff’s wife made a video of the son crying and grabbing his neck. This she gave to the defendant for safekeeping. The defendant mother-in-law then wrote a so-called “protocol of mistreatment” in which she listed numerous behaviors of the plaintiff. The defendant sent this “protocol” as well as the video as WhatsApp attachments to her sister with the request to forward it to their common mother. In addition, she filed criminal charges against the plaintiff for child abuse and also submitted the “protocol” and the video to the youth welfare office and the criminal police. Plaintiff seeks an order that Defendant cease and desist from further asserting and disseminating numerous statements contained in this “record.”
The district court had rejected his request.

The appeal was also unsuccessful before the Frankfurt Higher Regional Court.

In the opinion of the Higher Regional Court, the statements at issue are to be classified as “privileged statements”. They had fallen in a “space free of honor” and were therefore not unlawful. According to supreme court case law, there is an area of confidential communication within particularly well-developed relationships of trust, including in particular the closest family circle, which takes precedence over the protection of honor (“sphere free of insult”). This, he said, is intended to provide a personal space in which people can speak freely to their closest relatives without fear of legal prosecution. Statements that would not actually be worthy of protection vis-à-vis outsiders or the public because of their defamatory content enjoy constitutional protection in such private confidentiality relationships, which takes precedence over the protection of the honor of the person affected by the statement.

In this case, the disputed statements were made in this free space. The defendant maintains a very close and good contact with the addressees of the communications, which justifies the need to speak freely about the plaintiff. It was irrelevant that the statements had been in an electronic document as an attachment to a WhatsApp message and had not merely been communicated (remotely) verbally.

Insofar as the statements complained of and the “protocol” had also been forwarded to the criminal investigation department and the youth welfare office, no injunctive relief could be based on them in any case. It is incompatible with the right to effective judicial protection of rights and to a fair hearing if legal statements in a lawsuit or the exercise of civil rights and duties in criminal proceedings lead to disadvantages under criminal or civil law for reasons of protection of honor because an assertion later proves to be incorrect or unenlightenable in a lawsuit or after examination by the authorities.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.