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Erdogan ./. Böhmermann: The reasons for the Landgericht Hamburg’s decision

On 17 May 2016 Hamburg’s regional court, the Landgericht Hamburg (LG Hamburg), decided that Jan Böhmermann must in future refrain from uttering large parts of the abusive poem he recently performed (ref.: 324 O 255/16).

The court has now published the reasons for its decision. In its justification, the court first finds in no uncertain terms that the poem should in principle be regarded as satire. It further states that the context in which the satire was performed should generally always be taken into account as well when assessing the legality of satire.

In this regard, the LG Hamburg refers to the criteria laid down by the Federal Constitutional Court which require any assessment of the legality of satire to distinguish between the actual message and the satirical outfitting of that actual message (the “chosen satirical garb”) (see BVerfG, NJW 1987, 2661).

In the court’s view, the essential message when the abusive poem was performed was how, in his programme, Böhmermann was satirically addressing the fact that Erdogan had used a feature like the one from the show “extra 3” as a reason to summon the German ambassador. The court remarks that he was criticising the way Erdogan had dealt with freedom of expression in Turkey. The court ultimately finds this actual message to be justified and permitted.

However, the court regards large parts of the satirical outfitting of this actual message as inadmissible, and justifies this by pointing out that the remarks were undoubtedly abusive and defamatory. It found that almost all of the lines contain sexual references and may be regarded as racist.

Nevertheless, the court also considers some of the lines of the poem to be admissible, and in its justification it highlights a number of human rights violations in Turkey whose truth need not be established further, since they are assumed to be “known to the court”.

Contextualising the reasons for the decision:

Jan Böhmermann, © ZDF/Ben Knabe

One can agree with the court insofar as it generally finds that the performance of the Schmähkritik poem was of a satirical nature and, referring to the legislation of the Federal Constitutional Court, it notes that any legal assessment must distinguish between the actual message and the outfitting of the satire.

With regard to the actual message of the performance of the abusive poem, however, the context and Böhmermann’s intentions are not completely acknowledged by the court, which ultimately results in these aspects also remaining virtually ignored in the subsequent weighing up of legal interests.

The court outlines the actual message of the satire as criticism of the handling of the “extra 3” feature and of the Turkish understanding of freedom of expression. However, it ignores the fact that the performance was also intended as a legal and at the same time “humorous proseminar on abusive criticism”. Böhmermann repeatedly made this intention clear before as well as while he performed the poem.

Including with regard to the secondary assessment of the admissibility of the outfitting of the satire, the court’s disregard for this component of the core of the message ultimately results in the as such questionable conclusion that this outfitting, in the form of insults with racial and sexual connotations, is inadmissible because said insults are derogatory. It remains to be seen whether, in the forthcoming main proceedings and as the case progresses through the other judicial authorities, a more complete acknowledgement of the actual message of the performance will be conducted, and whether this will result in the satirical outfitting being deemed permissible despite the formally abusive language it contains.

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