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28.07.2016

Germany: Interim Injunction against Böhmermann’s poem „Schmähkritik“

by Tobias Raab
On May 17th 2016, the Regional Court (Landgericht, LG) Hamburg decided, German TV host Jan Böhmermann is not allowed to repeat his poem called “Schmähkritik” (German for “abusive criticism”), which he recited in his TV show “Neo Magazin Royale” (Case no.: 324 O 255/16). The Turkish President Recep Tayyip Erdoğan not only filed a complaint with the public’s prosecution office, but he also sought an interim injunction under civil law to enjoin Böhmermann from repeating “Schmähkritik”.

In an episode of his late night TV show „Neo Magazin Royale“, which is being broadcast on the German TV channel “ZDF neo”, the satirist and TV host recited a poem about president Erdoğan. This was Böhmermann’s reaction to a music-video published by the German satire magazine “Extra3”, which led the Turkish Government to summon the German ambassador in Ankara.

According to Böhmermann, he wanted to show the difference between statements, which are protected by freedom of speech and press according to art. 5 of the German Constitution (Grundgesetz, GG) – like the music-video published by “Extra3”, and those, which are not protected by art. 5 GG and therefore, violate personality rights – like his poem. Böhmermann did not only read the poem, he rather embedded it into numerous statements about the demarcation of artistic freedom and abusive criticism. The poem itself dealt with the state of freedom of speech and freedom of press in Turkey, accused Erdoğan of zoophilia, implied a brutal handling of women and journalists and compared Erdoğan’s body odour to the smell of a doner kebab.

After that, the Turkish President sought an interim injunction under civil law to enjoin Böhmermann from repeating “Schmähkritik”. The court then had to balance Böhmermann’s artistic freedom and his freedom of speech and Erdoğan’s general right of personality.

The LG Hamburg stated that the poem was indeed satire, which most of the time contains exaggerations and distortions. As a politician, Erdoğan had to accept those exaggerations as much as critical statements about his political decisions. However, it had been decided by the Supreme Court in Germany that the right to freedom of speech and artistic freedom, including satire, are limited. Plain Insults and abusive criticism are not covered by the right to freedom of speec and artistic freedom.

The court therefore differentiated between those parts of the poem that were allowed and protected under Art. 5 GG as they aimed at presenting political events in Turkey, and those parts, containing racist, religious or sexual insults, as they were not protected under Art. 5 GG and violated the President’s general right of personality. As far as the permitted parts of the poem went, the court rejected Erdoğan’s application. Concerning the rest of the poem, the judges decided to issue an interim injunction, enjoining Böhmermann from repeating “Schmähkritik”.

The court got criticized for publishing the complete poem in its publicly available verdict, in which all forbidden parts of the poem had been coloured red. The court got criticised for dividing the poem into admissible and inadmissible parts as well, as many experts found all of the act to be one piece of artwork, including not only the poem but also the introduction, the interruptions and Böhmermann’s ending statement. The artwork would therefore have to be categorised as a whole as admissible or inadmissable. The decision has yet to become final, as both parties have the right to lodge an appeal.

The LG Hamburg is not the only court dealing with “Schmähkritik” at the moment, as it played an important role in another lawsuit at the Regional Court (Landgericht, LG) of Cologne. The chairman of the German publishing house Springer, Mathias Döpfner, had written an open letter which had been published in the daily newspaper “Welt”. In this letter, he called the poem “successful” and made clear that he concurred with the poem’s content. President Erdoğan also sought an interim injunction against Döpfner to enjoin him from repeating what he had written in the published letter: LG Cologne rejected president Erdoğan’s application on May 10th 2016 (Case no.: 28 O 126/16). The judges stated that in their opinion Döpfner’s statement was protected under Art. 5 GG. As there was an elementary difference between the actual poem and Döpfner simply stating his solidarity with Böhmermann, the lawfulness of the poem was of no importance for this decision.

Böhmermann’s case also drew attention to criminal offence of § 103 of the German Criminal Code (Strafgesetzbuch, StGB). § 103 StGB penalises insults of authorities and representatives of foreign States. After the Turkish President had filed a complaint with the public prosecutor’s office, the German government authorised the law enforcement agency to prosecute Böhmermann. While the public prosecutor is now investigating, the German Federal Council (Bundesrat) decided to initiate the legal process for the deletion of the rule, as it was special criminal law and not up-to-date anymore.

Ass. iur. Tobias Raab works as freelancer for the Institute of European Media Law, Saarbrücken.

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The press release of LG Hamburg can be found here.





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