Injunction against Böhmermann for abusive criticism!

Is Jan Böhmermann permitted to repeat his statements presented in the form of a poem entitled "Abusive Criticism"? The Turkish President and "victim" of the satirical poem Recep Erdoğan wanted to prevent this and applied for a preliminary injunction against the television presenter.

Recep Erdoğan protested against the poem entitled "Abusive Criticism" by television presenter Jan Böhmermann, which he had performed during a broadcast of "Neo Magazin Royale" on 31 March 2016. In it, the Turkish President was, for example, addressed with passages such as

"His stench reeks badly of doner kebab,
even a pig's fart smells nicer"

and

"Kick Kurds, beat Christians
and watch child pornography while doing so.
And even in the evening it goes
instead of sleeping, fellatio with a hundred sheep.
Yes, Erdogan is completely,
a president with a small penis."

or also

"Every Turk you hear whistling,
the stupid sow has shriveled balls.
From Ankara to Istanbul
everyone knows this man is gay,
perverted, lousy and zoophilic—
Recep Fritzl Priklopil.
His head as empty as his testicles,
the star at every gangbang party.
Until his penis burns when urinating,
that is Recep Erdogan, the Turkish President."

according to his view, in a manner injurious to his personality. He did not have to tolerate these abusive and insulting remarks, so that the recitation of the entire poem had to be prohibited.

Böhmermann argued in response that his poem "Abusive Criticism" could be recited within the scope of artistic freedom. His criticism, expressed as satire, of Erdoğan's politics did not exceed the limit at which the President's human dignity would be violated.

Court Decision

TheRegional Court (LG) Hamburg issued an order on 17.05.2016 – Az. 324 O 255/16 – granting the preliminary injunction against television presenter Jan Böhmermann applied for by Erdoğan and prohibiting him from repeating the aforementioned excerpts from his poem "Abusive Criticism". The statements constituted a violation of his personality rights. With regard to the remaining parts of the poem, the court rejected the application by the Turkish President.

Regarding the passages prohibited by the court, Böhmermann's abusive criticism was not to be tolerated by Erdoğan in view of its abusive and insulting content.

In its decision, the LG Hamburg stated that the decision was based on a balancing of artistic and freedom of expression on the one hand and the general personality right of the Turkish President on the other. As satire, the contested poem conveyed a distorted picture of reality with which the respondent engaged by means of the poem. In this art form, to which exaggeration and distortion are inherent, a distinction had to be made for legal assessment between the substantive content and the satirical form chosen by the author, the presentation.

Criticism expressed in the form of satire of the conduct of third parties finds its limit where it constitutes mere abuse or a formal insult or violates human dignity. According to the panel's view, this limit was exceeded by certain passages of the poem that were abusive and insulting in nature. Whilst a generous standard applied to the presentation of a satirical contribution, this did not justify a complete disregard for the rights of the applicant. By taking up prejudices to be classified as racist and religious vilification, as well as in view of the sexual references in the poem, the lines in question exceeded the extent to which the applicant had to tolerate.

The remaining parts of the poem, by contrast, engaged in a permissible satirical manner with current events in Turkey and may be repeated.

Conclusion

Even though sharp criticism of Erdoğan's politics may be justified and the Turkish President, by reason of his public activities, must tolerate harsh criticism himself, satire within the framework of balancing freedom of expression and artistic freedom with human dignity finds its limit where the statements serve only to insult a third party or even attack his human dignity.