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Germany: Court Holds WhatsApp Messages to Close Family Members Are “Defamation-Free Zone”

(Mar. 7, 2019) On January 17, 2019, the Higher Regional Court of Frankfurt am Main (Oberlandesgericht Frankfurt am Main, OLG Frankfurt) held that a close family circle constitutes a defamation-free zone in which members may freely speak without fear of legal consequences. (OLG Frankfurt, Jan. 13, 2019, Docket No. 16 W 54/18 , ECLI:DE:OLGHE:2019:0117.16W54.18.00, Hessenrecht, Landesrechtsprechungsdatenbank website.)
Facts of the Case
The plaintiff and the daughter of the defendant are married and have two children together. In 2016, the couple got into a heated argument because the plaintiff was having an extramarital affair. According to the plaintiff, the son started crying but would not go to his room despite being told numerous times. The plaintiff therefore brought him there, holding him by the neck and pushing him from behind to make him walk faster, and then left the house. The wife took a video of her crying son, who was holding his neck, asking him to recount what his father had done to him and if his father had done this in the past, to which the son nodded. She gave the video to her mother, the defendant, to safeguard it for her in case of a custody battle. Several weeks later, the couple made up and are still married. ( Id . para. 2.)
On September 13, 2018, the defendant filed a criminal complaint for child abuse against the plaintiff. She submitted the video as well as a “protocol of abuses” listing individual incidents over the years in which the plaintiff allegedly physically and emotionally abused his wife and children. She also went to the local Youth Services and showed them the same evidence. ( Id . para. 2.) In addition, the defendant sent a WhatsApp message to her sister, saying, “I am sending you a video and a report. I have been quiet for years, but I cannot remain quiet any longer. [There is o]nly terror, and they pretend to be a super family to the outside world.” She also sent her a voice message to her sister saying, “I will keep you out of this. I just wanted you to talk to our mother and show her the video and give her the report. That is all I want. I have witnesses … I will see this through.” ( Id . at 3 & 4.) The defendant also informed her cousin of the accusations.
The plaintiff applied for a preliminary injunction to enjoin the defendant from disseminating the allegedly defamatory video and the “protocol of abuses.” The lower court denied his application, stating that the infringement of his rights had already taken place and that there was no risk that it would happen again in the near future. The announcement “to see it through” did not have any obvious connection with the requested preliminary injunction. The plaintiff submitted a complaint against this decision to the Higher Regional Court. ( Id . at 1 & 5.)
Ruling
The Higher Regional Court dismissed the complaint of the plaintiff. It stated that even if the statements of the defendant were defamatory, they were not unlawful, because they were privileged. ( Id . at 11.) The defendant sent the statements as attachments to a WhatsApp message to her sister with the request that they be forwarded to their mother. In addition to the mother, they were only communicated to the cousin. The Court concluded that the statements at issue in this case were therefore made in a defamation-free zone and were therefore not illegal. ( Id .)
The Court explained that there is a “realm of confidential communication within certain relationships of trust, particularly within a close family circle, that takes precedence over the protection of honor,” which is thus an “insult-free sphere.” This sphere is meant to give everyone the personal freedom to talk freely and express emotions, reveal secret wishes or fears, and express views about relationships or persons to their close relatives without the fear of legal consequences. Some of those statements would not be protected if they were made publicly or to third parties due to their defamatory character, but they are constitutionally protected when they are made in a private conversation with close family members. The reason for the privileged treatment is the special protection of relationships of trust derived from the general right of personality codified in article 1, paragraph 1, and article 2, paragraph 1 of the German Basic Law, the country’s Constitution. ( Id. at 12; GRUNDGESETZ [GG] [ BASIC LAW ], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, art. 1, para. 1 & art. 2, para. 1, German Laws Online website.)
The Court summarized that the statements at issue were made in that insult-free sphere. In the opinion of the Court, it is legally irrelevant that the statements were sent as an attachment to a WhatsApp message and were not made in person. (OLG Frankfurt at 13.)
Finally, with regard to the statements made to the police and the Youth Services, the Court held that there cannot be a right to suppress them because of their allegedly defamatory character, because the defendant was only safeguarding her legitimate interests to protect her grandson. In the Court’s view, a person must be able to make statements to an agency that is bound to secrecy so that the agency can investigate a certain behavior without encountering criminal or civil consequences, even if the allegations later turn out to be false. According to the Court, there was no evidence that the defendant deliberately and knowingly made untrue statements. ( Id . at 16–19.)

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