Recent Freedom-Related Supreme Court Decisions in Germany

In this post, I’d like to very briefly discuss a few freedom-related decisions by the Federal Court of Justice of Germany (BGH) and the Federal Constitutional Court of Germany (BVerfG) made during this year’s November and December for which I did not have time to publish more thorough discussions earlier. The decisions are ordered by the dates of their press releases (PR) which are sometimes substantially younger than the actual decisions.

Justifiably Calling a Person “Radical Right-Wing” is Covered by the Freedom of Speech

The plaintiff is a lawyer who had been writing political articles for his website and magazines. These articles were using radical right-wing terminology talking about “khazarian, ie non-Semitic, Jews who are dominating the world’s economy” [de: die „khasarischen, also nicht-semitischen Juden“, die das Wirtschaftsgeschehen in der Welt bestimmten] and the “transitional nature of the German constitution that, ultimately, is a police-law instrument installed by the Allies of World War II” [de: den „transitorischen Charakter“ des Grundgesetzes, das lediglich ein „ordnungsrechtliches Instrumentarium der Siegermächte“ sei].

The defendant is a lawyer too. He had been writing a critical response to the plaintiff’s articles and published it in an online discussion forum. In this text, he stated that somebody who is writing what the plaintiff had been writing “has to accept being called radical right-wing” [de: müsse „es sich gefallen lassen, rechtsradikal genannt zu werden“].

The plaintiff had been asking for an injunction to force the defendant to stop publishing his criticism. Surprisingly (if not shockingly), the Landgericht (LG) and the Oberlandesgericht (OLG) Bamberg who had been dealing with the issue in the first and second place, had been assuming the plaintiff’s point of view. The BVerfG, however, has revoked both decisions and sent the case back to the LG. Even if the case is not settled finally in a formal sense, the BVerfG made its point of valuing the impact on the defendant’s freedom of speech higher than the plaintiff’s right of personality very clear so no further surprises should have to be expected.

Parents are Allowed to Trust their Children – Even if Those are Using a Computer

The parents of a then 13 year old boy had been sued by a group of audio companies for enabeling their son to participate in illegal file sharing in 1 147 cases. The parents had been giving an old personal computer to their son which he, in turn, was using to install peer-to-peer file sharing clients and used them in an illegal way. The plaintiffs wanted the parents to pay 5 380.80 € on behalf of their son who was under the legal age to be obligated (and probably wouldn’t have had enough money) to pay himself. The plaintiffs argued that the parents had been failing to meet their obligations for parental control by not installing spyware on their son’s computer that would have prevented him from installing file sharing software or periodically investigating his computer for unapproved software manually. The parents argued that they had been talking to their son about illegal file sharing and had no reason to further distrust him.

The LG and OLG Köln went with the plaintiffs and condemned the parent’s control-by-faith insufficient. The BGH finally went along with the defendants and confirmed that parents have no obligation to spy on “a normally developed 13 year old child that usually stays with their commandments and prohibitions or (partially) blocking its access to the Internet.” The BGH stated that parents are only obligated to take such measures “if specific circumstances give reason to assume abuse of the Internet connection by their child.”

On a technical note, it should be added that installing a firewall will not help preventing illegal file sharing (unless it is set to something like “block all traffic” which would be somewhat like unplugging the network cable and thus unpractical) and file sharing software can also be used for legal activities.

Making Questionable Statements Allows Others to Interpret Them (Correctly)

The plaintiff is an author who has written the book “Das Prinzip Arche Noah – Warum wir die Familie retten müssen” [en: the principle of Noah’s Ark – why we have to save the family]. On a press conference promoting the book, she gave the following questionable quote:

Wir müssen vor allem das Bild der Mutter in Deutschland auch wieder wertschätzen, das leider ja mit dem Nationalsozialismus und der darauf folgenden 68er Bewegung abgeschafft wurde. Mit den 68ern wurde damals praktisch alles das – alles was wir an Werten hatten – es war ‘ne grausame Zeit, das war ein völlig durchgeknallter hochgefährlicher Politiker, der das deutsche Volk ins Verderben geführt hat, das wissen wir alle – aber es ist eben auch das, was gut war – das sind die Werte, das sind Kinder, das sind Mütter, das sind Familien, das ist Zusammenhalt – das wurde abgeschafft. Es durfte nichts mehr stehen bleiben.

A translation into English is almost certain to fail but I will try nevertheless. Please don’t be picky with any particular wording or grammar. The original quote doesn’t make too much sense either.

Above all, we have to value the picture of the German mother again. Unfortunately, it has been abolished during the time of the national socialism and the consecutive movement of the 68ers. Within the 68ers, practically everything – any values we have had – it was a terrible time, it was a completely mad and highly dangerous politician who has ruined the entire German nation, we all know so – but there are also the good things – it are the values, it are the children, it are the mothers, it are the families, it is the cohesion – all this has been abolished. Nothing was allowed to stay.

The defendant, a newspaper publisher, had – with a shake of the head – been writing an article about the press conference in which he interpreted the plaintiff’s quote as a partial agreement with the national socialist’s (social) values combined with a general disapproving of their politics, namely the person of Adolf Hitler.

The plaintiff found herself misquoted and was suing the defendant for an injunction, publishing of a clarification and payment of a compensation. The LG and OLG Köln both went with the plaintiff.

The BGH has confirmed that both, the right to exclusively dispose of ones own words and the right to not being misquoted in a misleading and thus socially degrading way, are granted by the constitution. However, it also elaborated on the fact that the plaintiff had not been deprived of any of these rights. In the opinion of the BGH, the unfavorable quote could not be correctly interpreted in a substantially different way. Thus, the plaintiff’s complaint was unwarranted.

The BVerfG has rejected a consecutive complaint of the plaintiff against the BGH’s decision which therefore is now ultimately final.

What is interesting about the BGH’s decision is that – unlike the court’s usual job of clarifying legal questions – it did not criticize the legal assessment of the LG and OLG but revoked their decisions because of a diverging interpretation of the merits.

Sampling Foreign Music is Only Allowed if an Equivalent Sound Cannot be Recorded

At the end of a 13-year lawsuit between the members of the German electronic band Kraftwerk and the music producer Moses Pelham, the BGH has finally decided that sampling the two-second rhythm sequence of train buffers from Kraftwerk’s 1977 title Metall auf Metall for the song Nur mir was illegal.

The BGH explained that using a musical sequence from a foreign title without approval can be legal according to § 24 (1) UrhG if the created work is so different from the sampled one that it is to be seen as a creative artwork in its own right. However, this limitation of the copyright law cannot be applied if an equivalent sound sequence can be recorded by the producer who wishes to sample. To decide whether this is possible, it does not matter whether an “identical” sequence can be produced but a “recording that is equivalent with respect to the target market”. For this decision, a music producer with average skills and equipment has to be considered. The basis for this restriction is seen in § 85 (1) UrhG that grants special rights to producers of sound recordings. This consideration values the economical effort required to produce the recording, not the intellectual-creative act that is the usual basis of copyright law.

Since it is hard to see when these conditions could be met (after all, if average producer P1 can produce recording R, then so can average producer P2), Georg Lecheler points out that sampling is “allowed but impossible” in Germany. Another interesting question is, what “recording” shall actually mean. In the case of an analog sound produced by a piano or saxophone, this is quite clear. However, it is one of life’s ironies that the sound that gave rise to this decision was an electronic one. When recorded in 1977, it was probably done by actually playing some kind of electronic instrument in front of a microphone. Nowadays, many sounds are engineered entirely in software and the borderline between reproducing a sound by “playing an instrument” and “playing a record” is a blurred one.

Warranted Conjectures that Someone has Worked for a State of Lawlessness May be Published

The plaintiff is a university professor at the University of Leipzig, chairman of the Party of Democratic Socialism in the state of Sachsen and their first candidate in 2004’s election.

The defendants are two newspaper publishers who had been publishing articles in 2004 about the suspected past of the plaintiff as a so-called unofficial employee of the former Ministry for State Security (Stasi) of the German Democratic Republic. They were able to undermine their claims by quoting the Federal Commissioner for the Stasi Archives.

The plaintiff sued for an injunction, claiming that he didn’t know that the Stasi was using him as an unofficial employee. The LG and the OLG Hamburg both went with the plaintiff.

The BGH has revoked the OLG’s decision and sent the case back to it. It argued that the newspaper publishers had a right to trust in the information published by a federal government agency and that the public’s interest in the potential Stasi history of a top candidate outweighs the plaintiff’s interest to protect his privacy in this particular case. Furthermore, it was not shy to use clear words about the OLG’s reasoning: “The acknowledgment of the defendant’s failure to proof that the plaintiff had been collaborating wittingly with the Stasi is incomplete and violates the general laws of thinking and experience. The interpretation of the wording used in the Stasi documents is far-fetched and hardly reconcilable with the natural use of the language.” [de: Die Würdigung des Berufungsgerichts, die Beklagten hätten nicht bewiesen, dass der Kläger wissentlich und willentlich mit dem Staatssicherheitsdienst zusammengearbeitet habe, ist unvollständig und verstößt gegen Denkgesetze und Erfahrungssätze. Die von ihm vorgenommene Deutung der in den Akten des MfS verwendeten Begriffe ist weit hergeholt und mit dem natürlichen Sprachempfinden kaum in Einklang zu bringen.]

Keyword Advertising Using a Common Trademark is Legal

The plaintiff is an online shop exclusively licensed for retailing chocolate using the MOST registered trademark. The defendant is an online shop for chocolate too. It had been using Google AdWords to promote its shop. The settings were made to include searches for “chocolate” [de: Pralinen] and “broad match”. Google’s FAQ say

When you use broad match, your ads automatically run on relevant variations of your keywords (including misspellings), even if these terms aren’t in your keyword lists. This helps you attract more visitors to your website, spend less time building keyword lists, and focus your spending on keywords that work.

Broad match is the default match type that all your keywords are assigned if you don’t specify another match type (exact match, phrase match, or negative match). The Google AdWords system automatically runs your ads on relevant variations of your keywords, even if these terms aren’t in your keyword lists.

Keyword variations can include synonyms, singular and plural forms, possible misspellings, and phrases containing your keywords.

In this particular case, this led to searches for “MOST chocolate” listing the defendant’s web shop in the advertisements, that did not sell MOST chocolate at all.

The plaintiff had been suing for an injunction and was able to convince the LG and OLG Braunschweig of its point of view.

The BGH has corrected these decisions and clarified that displaying an ad with searches for a keyword that is “identical or confusingly similar” to the keywords associated with products actually sold in the shop, does not infringe a trademark possibly included within the broadly matching keyword.


The past two months have been an interesting time for people watching current proceedings related to (computer user’s) freedom. While I have to try hard to think of at least one single recent case in which the BGH had to revoke a trial in criminal law in favor of the perpetrator (although, to me, recent complaints by the defense attorney seem to have been more frequent than those by the public prosecuting authority), almost all of the above lawsuits more or less read like: “A wants to stop B from doing something. The LG and the OLG stay with A but the BGH finally confirms the freedom of B.” Civil law is more difficult than criminal law of course in that there is no clear direction to favor in case of doubt. But even if there is no principle like the famous in dubio pro reo in criminal law, I don’t feel too comfortable with this situation. It should be more difficult to deprive somebody of her freedom to act than it should be to defend this freedom. Sometimes, it is hard to discard the feeling that the lower level civil courts have a tendency to follow the proposal of the (financially better placed?) plaintiff’s lawyers. Hopefully, my impressions are just a result of statistical fluctuation over a too short observation time.

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