Injunction against a political boycott call on Twitter?

In electoral campaigns between political parties, polemic or sarcasm is often used. The Higher Regional Court of Dresden (OLG Dresden) had to decide where the limits lie in the context of the Saxon state parliament election campaign.

A politician from the Greens had called for a boycott of a hairdressing salon run by the Saxon AfD board via his private Twitter account with the following words:

"From now on, I recommend no longer going to hairdresser G. in #Leipzig. The owner is an #AfDler. You never know where the scissors will cut."

He himself deleted the message shortly afterwards, but it was subsequently shared by other users. The owner of the hairdressing salon felt his rights violated by the statement and sued before the Regional Court (LG) Leipzig for an injunction on grounds of interference with the established and operated business, credit endangerment, immoral intentional harm, unfair competition law as well as violation of the general right of personality. The court ordered the politician to cease and desist. This decision was subsequently overturned by the Higher Regional Court of Dresden (OLG Dresden) in the course of the appeal proceedings.

Court Decision

The Higher Regional Court of Dresden (OLG Dresden) (Judgment of 05.05.2015 – Az.: 4 U 1676/14) considered the contested statement to be permissible in all respects.

An interference with the right to an established and operated business on the basis of a boycott call fails due to the required balancing of interests and goods between the purpose and means of the call on the one hand and the conflicting interests of the affected party on the other.

Since the defendant, a politician and lawyer, and the plaintiff hairdresser were not in competition with each other, conduct in self-interest is ruled out. Rather, the background to the statement was the state parliament election campaign, in which both parties appeared as candidates of their respective parties. The aim of the statement was therefore to discredit the plaintiff among the sympathizers of the defendant's camp, although it was questionable whether this effect would not have already occurred through the plaintiff's candidacy for the AfD.

Furthermore, the statement was limited to a mere "appeal" not to make use of the plaintiff's services on account of his political orientation.

For the third part of the statement "You never know where the scissors will cut," a violation of the right to operate a business was also rejected. It was a statement of opinion protected by Art. 5 (1) GG, by which the defendant clearly only wanted to express distance from and criticism of the political orientation and intellectual position of the AfD, and did not wish to criticize the plaintiff's activities as a hairdresser.

For the interpretation, what is decisive here is to apply the standard of a politically interested reader who uses the defendant's blog as a source of information in the context of the state parliament election campaign, and not an internet user who wishes to inform himself about the quality of hairdressers in Leipzig.

For such a reader, it would be recognizable that the aim was to disparage and ridicule the AfD and its candidates by means of sarcasm and mockery. Such exaggerated statements in confrontation with the political opponent are part of the basic forms of an election campaign and are therefore covered by the protection of Art. 5 (1) s. 1 GG.

The court also rejected an injunction on the grounds of credit endangerment or immoral intentional harm, since it is undisputed that this is a true factual assertion or a permissible statement of opinion. In the absence of a competitive relationship, the plaintiff also has no injunction claims under the UWG.

It also rejected a violation based on the general right of personality, since here the defendant's right to freedom of expression outweighs the plaintiff's right to personality, for which protection is considerably reduced in the political sphere.

Conclusion

With its judgment, the Higher Regional Court of Dresden (OLG Dresden) once again accorded freedom of expression a high value and ensures that politicians in election campaigns can continue to make negative, polemical or sarcastic statements against opponents without having to fear legal consequences.