A fake interview with a politician does not violate her personal rights; an update from the German Regional Court

The Regional Court of Hamburg addressed the question in August last year as to whether a fake interview with a German politician violates her personal rights, and ruled that: (1) whether a character is satirical is to be determined from the perspective of an unbiased and understanding audience; (2) The satirical nature of a text may result from the content of the publication itself (such as the choice of words, exaggerations, humour) as well as the accompanying context in which the text is published. For example: the publication of a text in an online media platform under the genre “satire” or with an “almost true” label will often indicate to an unbiased reader that the text is satirical; and (3) Ambiguity is often a defining characteristic of satire and therefore does not necessarily result in satire being inadmissible.

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The facts

The plaintiff in this case was Katrin Göring-Eckardt, the Vice-President of the German Parliament (Bundestag) and former Chairwoman of the parliamentary group of the political party “Bündnis 90/Die Grünen” (“The Greens”).

The defendant runs the online publication “T. E.” and published under the section “Almost true news” an allegedly exclusive, but in fact fictitious, interview with the plaintiff, with the headline “The Greens want to give government vouchers to housekeepers “. Furthermore, the words “Attention satire! Attention satire!” were printed above the headline. The subheading read “Comment: The Greens want to give government vouchers for housekeeping services“. Before the action was filed by the plaintiff, the headline was also supplemented by the words “Attention satire“. The fake interview mentioned, amongst other things, that the plaintiff demanded state-subsidised vouchers for household chores instead of tax relief.

A brief lesson in German grammar

It is worth noting that the fake interview used a (much-debated) gender-neutral grammatical form when referencing certain groups mentioned in the article. The German language, like many others, applies genders to its words – for example, the German term for a male doctor is “Arzt” and the German term for a female doctor is “Ärztin”. However, generally, the masculine plural (i.e., the ‘generic masculine’) form of the noun (which would be “Ärzte” in this example) is used to address all sexes, and not the feminine plural equivalent (which would be “Ärztinnen”). Use of the generic masculine to address groups of all sexes has set off an increasingly polarised debate in Germany and supporters of gender-neutral language (including the plaintiff) have instead suggested using a “gender star”, i.e., placing an asterisk before the feminine word ending (“Ärzt*innen”, in this example). The defendant seems to oppose this suggestion, as indicated by its extremely exaggerated use of gender-neutral language in the fake interview.

It was the plaintiff’s opinion that her general right of personality (“Allgemeines Persönlichkeitsrecht”) was violated by the publication of the fake interview. The general right of personality is a constitutional right in Germany, which provides comprehensive protection of a person’s personality. This — amongst other components – gives individuals the right to control how their personality is depicted in public. As interviews are the expression of personality, the right of personality also guarantees control over alleged statements that a person has made. However, this right can be limited on the grounds of legitimate interests, such as satire. The plaintiff claimed that no such legitimate interests were applicable to the fake interview, as the satirical nature of it was not recognisable to the average reader. Therefore, it was the plaintiff’s view that the average reader would not perceive the interview as satirical and thus fake. Several comments below the article showed that the users were also not sure whether the interview was fake or whether it was a satirical interview actually conducted with the Plaintiff.

Decision

The Regional Court of Hamburg (a) dismissed the action as unfounded and (b) held that the plaintiff was not entitled to injunctive relief since the article did not contain any untrue statement of fact due to the fact that it was obvious that interview was not a real interview with the plaintiff. The Court stated that, accounting for the overall context of the publication, an unbiased and reasonable reader would recognise the satirical and fictional nature of the ‘interviewee’, based on the distortions and exaggerations which are typical of satire.

The fake interview criticised the plaintiff’s positions and demands by fabricating statements to ‘explain’ her demands, which grossly exaggerated her position. The Court considered that readers of the article could read between the lines and recognise that the article was satirical. In terms of interpreting the fake interview, it was the objective meaning of the statement that mattered, accounting for the wording, linguistic context, and accompanying circumstances apparent to the reader. By this standard, the Court concluded that satire was recognisable in the present case by virtue of the references in the individual headlines, the fact that the interview was published in the “Almost true news” section, and the designation of the interview as “Comment“.

Irrespective of this, it was noted that the unbiased and reasonable audience could also recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this.

Further, the ‘interview’ was also not held to be problematic with regards to ambiguity; reading the publication with an understanding that the plaintiff had actually participated in the ‘interview’ was remote. The Court noted that ambiguity was often the defining characteristic of satire.

Finally, the challenged statement did not prove to be inadmissible with regard to its core message. The article made some reference to actual events, even though it exaggerated or overstated the plaintiff’s actual demands. For example, the plaintiff and her political party had indeed demanded government vouchers for household related services in the past.

Comment

In the interest of freedom of the press, many believe that the claims brought by the plaintiff were rightfully rejected by the Court. Satire thrives precisely on the stylistic use of ambiguity – if such ambiguity was to be judged inadmissible, many satirical representations would similarly not be permissible. This approach would likely be viewed as incompatible with freedom of speech principles and the freedom of the press guaranteed by the German Constitution.

The publication in this case was accompanied by clear statements which highlighted the satirical nature of the ‘interview’. However, it remains to be seen whether this is a necessary requirement, or whether the satirical character of a publication can be drawn solely from its content. Watch this space.

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