Simone Lawson
Freedom of speech is a human right and is comprehensively protected by the German Constitution, also known as the Basic Law for the Federal Republic of Germany. The German Constitution guarantees freedom of expression, freedom of the press, and freedom to receive information, among other communication rights, to every person. However, this protection is not absolute and has certain limitations.
| Characteristics | Values |
|---|---|
| Freedom of speech | Every person has the right to freely express and disseminate opinions in speech, writing, and pictures |
| Freedom of the press | Freedom of the press is guaranteed, and there shall be no censorship |
| Limitations | Freedom of speech is limited by general laws, provisions for the protection of young persons, and the right to personal honour |
| Freedom to receive information | Every person has the right to access information from generally accessible sources |
| Freedom of assembly | The right to assemble peacefully is protected |
| Freedom of association | People are free to associate with others of their choosing |
| Freedom of faith and conscience | People are free to practice any religion or hold philosophical beliefs |
| Freedom from censorship | There shall be no censorship of speech or the press |
| Freedom of teaching | Teaching shall be free, but teachers remain bound by the constitution |
| Freedom of expression | People have the right to express themselves through various mediums, including speech, writing, pictures, films, and broadcasts |
| Protection of human dignity | Human dignity shall be inviolable, and the state has a duty to respect and protect it |
| Equality before the law | All people are equal before the law, regardless of age, gender, or social status |
| Right to personal development | Every person has the right to freely develop their personality without violating the rights of others or the constitutional order |
| Right to life and physical integrity | Freedom of the person shall be inviolable |
| Freedom from discrimination | The constitution prohibits discrimination on various grounds, including race, religion, or political belief |
| Freedom of movement | People are free to move within the country and choose their residence without restrictions |
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What You'll Learn
Freedom of speech and freedom of the press
The German Constitution also guarantees freedom of the press, which includes the freedom of reporting by means of broadcasts and films. There is to be no censorship. However, these rights are not absolute and do have certain limitations. They are limited by general laws, provisions for the protection of young persons, and the right to personal honour. For example, the Federal Constitutional Court allows a restriction of freedom of speech by section 130, paragraph 4 of the Criminal Code, which criminalizes disturbing the peace by glorifying or justifying the National Socialist rule.
The German Constitution also protects the freedom of teaching, assembly, association, privacy of correspondence, posts and telecommunications, rights of property, and the right of asylum. These rights are fundamental to the democratic nature of the German state and are enshrined in the Basic Law for the Federal Republic of Germany.
Despite these protections, there are limits to freedom of speech and freedom of the press in Germany. For instance, deliberately false statements of fact (fake news) have very limited protection. In addition, the European Court of Human Rights has confirmed that there is no obligation to remove crime reports that identify the perpetrator, in order to protect the reintegration perspective of the perpetrator. Furthermore, Holocaust denial, the dissemination of propaganda, and the use of symbols of unconstitutional organisations are criminal acts that are not protected by freedom of speech.
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Freedom of expression
The German Constitution also guarantees freedom of the press and freedom to receive information. There is to be no censorship. However, these rights are not absolute and do have certain limitations. Freedom of expression and the press can be limited by 'general laws', provisions for the protection of young persons, and the right to personal honour. For example, the Federal Constitutional Court allows a restriction of freedom of speech by section 130, paragraph 4 of the Criminal Code, which criminalises "disturbing the public peace in a manner that violates the dignity of the victims [of the Nazi regime] by approving of, glorifying, or justifying the National Socialist rule of arbitrary force".
The expression of opinion and fact are protected. However, fake news and deliberately false statements of fact have very limited protection. On the other hand, critical, satirical, excessive, polemic and shocking expressions of opinion are protected. For example, a car rental company was allowed to use the image of a union leader during a railway strike in an advertisement with the satirical title 'Our employee of the month'.
There are certain acts that are not protected by freedom of speech, such as Holocaust denial, the dissemination of propaganda, and the use of symbols of unconstitutional organisations. Abusing the freedom of expression can result in the forfeiture of basic rights, as decided by the Federal Constitutional Court.
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Limitations to freedom of speech
Article 5 of the German Basic Law guarantees freedom of speech and freedom of the press, among other communication rights, to every person. However, this right is not absolute and has certain limitations.
Firstly, these rights are restricted by the provisions of general laws, which include criminal law provisions protecting personal honour, civil law norms on the undisturbed enjoyment of premises, and other basic rights. For example, disseminating untrue facts or "abusive criticism", defined as statements intended to defame rather than debate, fall outside the scope of protection.
Secondly, the Federal Constitutional Court allows restrictions on freedom of speech in the Criminal Code, specifically regarding statements that disturb the public peace and violate the dignity of victims of the Nazi regime by glorifying or justifying National Socialist rule.
Thirdly, freedom of speech and freedom of the press can be limited when they conflict with other rights, such as the right to privacy, honour, and reputation of others. This includes the freedom to receive information, which may be restricted if information from foreign broadcasters violates criminal law norms.
Lastly, limitations to freedom of speech can be applied when they serve to protect young persons, as mentioned in the German Basic Law.
While Germany generally upholds freedom of speech, these limitations are in place to balance this right with the protection of other fundamental rights and values.
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Protection of personal honour
The German Constitution (Article 5, Paragraph 1) guarantees freedom of speech and freedom of the press, among other communication rights, to every person. However, this protection is not absolute and has limits.
The Basic Law for the Federal Republic of Germany outlines that everyone has the right to freely express and disseminate their opinions in speech, writing, and pictures. It also guarantees freedom of the press and freedom of reporting through broadcasts and films. There is to be no censorship.
However, these rights have limitations, which include provisions for the protection of young persons and the right to personal honour. The German Constitution does not protect the dissemination of untrue facts or "abusive criticism," which is defined as statements that are not primarily made to debate a topic but to defame a person.
The Federal Constitutional Court allows a restriction of freedom of speech by section 130, paragraph 4 of the Criminal Code, which criminalizes "disturbing the public peace in a manner that violates the dignity of the victims [of the Nazi regime] by approving of, glorifying, or justifying the National Socialist rule of arbitrary force." This restriction is justified by the horrors inflicted by National Socialist rule.
The Basic Law also protects human dignity, which is inviolable. It is the duty of all state authorities to respect and protect human dignity.
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Freedom of religion
Article 4 also ensures that no one can be prejudiced or favoured because of their faith or religious or political views. This includes protection from discrimination based on gender, descent, race, language, and place of origin.
German law distinguishes between individual and collective freedom of religion. Negative freedom of religion covers the right not to confess your faith and the right not to be exposed to religion while in a position of "subordination". For example, in 1995, the German Federal Constitutional Court decreed that the presence of religious symbols in public institutions, such as crucifixes in classrooms, was illegal if a parent did not agree with them. Similarly, in 1973, a Jewish person successfully argued that their freedom of religion was violated by the obligation to speak in a German courtroom decorated by a cross.
However, in 2004, the German Supreme Court denied a Muslim teacher the right to wear a headscarf in class, ruling that her freedom of religion had to be balanced with the state's authority over schools, the freedom of students not to be exposed to religion, parents' rights, and the specific duties of teachers as state servants.
The German system of state support for religious institutions assists all religions equally in principle, although it has been criticised for not fully encompassing some minority faiths in practice.
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Frequently asked questions
Yes, the German Constitution guarantees freedom of speech and freedom of the press, among other enumerated communication rights.
Freedom of speech in Germany applies to "every person", not just German citizens.
Yes, freedom of speech in Germany is limited by 'general laws, provisions for the protection of young persons, and the right to personal honour'. Deliberately false statements of fact (fake news) have very limited protection.
Limitations to freedom of speech in Germany include the criminalisation of Holocaust denial, the dissemination of propaganda, and the use of symbols of unconstitutional organisations (e.g. a swastika). Additionally, the Federal Constitutional Court allows a restriction of freedom of speech by section 130, paragraph 4 of the Criminal Code, which criminalises "disturbing the public peace in a manner that violates the dignity of the victims [of the Nazi regime] by approving of, glorifying, or justifying the National Socialist rule of arbitrary force".
