독일연방헌법재판소 판례 분석을 통해 본 정치인에 대한 모욕표현 및 표현의 자유 한계에 관한 논의

The Federal Constitutional Court, through the Künast judgment, systematically established criteria for balancing the freedom of expression and the right to honor after applying the principle of proportionality. The jurisprudence generated by the German Federal Constitutional Court traditionally relies on the presumption formula and the theory of mutual interaction. According to this legal framework, it imposes stringent requirements to exempt a balancing test for attacks on human dignity, formal insults, and defamation, which are exceptions prioritizing the protection of the right to honor. The Federal Constitutional Court repeatedly emphasizes the particular importance and broad scope of protecting the freedom of expression in a democratic society. Even if it did not assume that freedom of expression takes precedence over other fundamental rights, the Court appears to interpret the scope of protection broadly. In its jurisprudence, the Court seems to allow stronger expressions of contempt rather than ban them. The Künast case served as a catalyst for the Federal Constitutional Court to reevaluate its established jurisprudence. In this sense, the Künast judgment is seen as a turning point in the Court’s jurisprudence of favoring freedom of expression over the right to honor. This shift is expected to enhance the protection of the right to honor for victims of insults, particularly politicians, who may express their opinions in public. Freedom of expression and the right to honor are both fundamental rights for a free and open democratic society. In cases involving statements that harm one’s honor, balancing between freedom of expression and the right to honor is necessary, considering context and various factors relevant to an individual case.