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”.