"Defamatory criticism" prohibited at demonstration

Jan Böhmermann's poem "Schmähkritik" may neither be displayed nor recited at a demonstration in front of the Turkish Embassy. The Administrative Court (VG) Berlin has confirmed the assembly law order issued by the Berlin Police President.

The organisers planned an assembly in front of the Turkish Embassy premises in Berlin under the motto "Goat demo against insult". Participants in the rally were to wear goat masks or headscarves and set up "artistic placards" in front of them. Furthermore, passages from Jan Böhmermann's poem "Schmähkritik" were to be printed on the signs and held up.

The Police President in Berlin, in his capacity as the assembly authority, prohibited the public display and recitation of the poem "Schmähkritik" or individual passages from it on the grounds that these were liable to give rise to the suspicion of a criminal offence. Furthermore, the wording had a defamatory character. The organisers of the demonstration contested this order, but unsuccessfully.

Court decision – Defamatory criticism prohibited

The Administrative Court (VG) Berlin ruled with aBeschluss vom 14.04.2016 – VG 1 L 268.16 (Press release No. 15/2016 of 15.04.2016) confirming the assembly law order. The court did not make a statement on the criminal liability of Jan Böhmermann's contribution in his late-night show Neo Magazin Royale.

Böhmermann's satire was characterised by a detached embedding in a "quasi-educational overall context" in order to illustrate the limits of freedom of expression. By contrast, the isolated quotation of the poem met the requirements of defamatory criticism. In this case, theprotection of personality takes precedence over freedom of expression. Despite the public discussion about Jan Böhmermann's contribution, an unbiased third party who perceived the demonstration participants appearing in goat masks and the text placards would not understand this as a permissible form of expression of opinion.

Conclusion

In the present case, the court correctly distinguished between Jan Böhmermann's poem "Schmähkritik" as such and his contribution, which dealt with thelimits of freedom of expression respectively. Not covered by freedom of expression is so-called defamatory criticism, in which, according to established case law of the Federal Constitutional Court (BVerfG), it is no longer a matter of engaging with the issue, but rather the disparagement of a person takes centre stage. Taken on its own, Böhmermann's poem as pure defamatory criticism is not permissible. Jan Böhmermann himself holds this view, which he made clear several times in his broadcast and finally also emphasised through his choice of title. Whether the recitation of the poem within the context of a quasi-educational overall context – as in the Neo Magazin Royale contribution – would still be understood as defamatory criticism must now first be examined by the public prosecutor in the context of considerations of criminal liability in the Böhmermann case.