Free Saxony | Pellmann fails before the Federal Court of Justice: Appropriation remains unpunished

Are a politician's personal rights violated when their most bitter political opponent pretends to be working together ? The Federal Court of Justice in Karlsruhe denied this on Tuesday afternoon and rejected an appeal by Sören Pellmann, co-chair of the Left Party's parliamentary group in the Bundestag . Pellmann will therefore not receive the €10,000 he had sued the small, right-wing extremist party Free Saxony for. "It is regrettable that the Federal Court of Justice missed today's opportunity to strengthen protection against disinformation and political appropriation by right-wing extremists with the most effective means for personal injury claims—the recognition of monetary compensation," Pellmann commented on the ruling.

In September 2022, the Left Party registered a demonstration at the Leipzig Opera House with Pellmann and Left Party MP Gregor Gysi under the slogan "Hot autumn against social cold: Lower prices – energy and food must be affordable." Shortly thereafter, the Free Saxons registered a demonstration at the Gewandhaus, also located on Augustusplatz, with the slogan "Free Saxons support the Monday protest by Sören Pellmann and the Left Party – Together against those at the top."

They also did a lot to create the impression that this was a joint demonstration with common concerns. The list of speakers included Compact founder Jürgen Elsässer and André Poggenburg, who was considered too right-wing even by the AfD, in fifth and sixth place, Gregor Gysi and Sören Pellmann.

The latter subsequently obtained a cease-and-desist order from the Leipzig Regional Court, arguing that his credibility as a leftist would be severely damaged if the suspicion arose that he was collaborating with right-wing groups. While the Regional Court agreed and ordered the Free Saxons to pay €10,000, the Dresden Higher Regional Court reversed the ruling. It, too, found an infringement of personal rights – although this was not serious enough to justify a fine.

It is all the more surprising that the Federal Court of Justice, for the first time in the oral hearing on Tuesday, fundamentally questioned whether Pellmann's "material personal rights" were even affected. To do this, the judges argued, the Free Saxons would have had to create the impression of a joint demonstration without any ambivalence. While some of their wording suggested this, others ("all rallies are permitted") created the opposite impression. Furthermore, during the oral hearing, the Federal Court of Justice made it clear that it viewed the Free Saxons' Instagram channel as a media channel just like traditional publishing houses, thus applying media privilege. This privilege stipulates that journalistic media are exempt from certain data protection regulations when processing personal data.

"This is how fake news is protected. The courts are the only ones who can do anything about it."

Daniel Czeckay, attorney for Sören Pellmann

However, this is a perspective that could have far-reaching consequences, fears Pellmann's lawyer, Daniel Czeckay: "No one has ever come up with this argument before. This is how fake news is protected. Yet the courts are the only ones who can do something about it. Only fines will help." In the interest of their own credibility, politicians must be able to defend themselves against being politically co-opted against their will, Czeckay believes. But if it's enough to throw in a few qualifying phrases in the future to go unpunished, "personal rights are essentially dead."

The political dimension of the case was also largely ignored in Karlsruhe. After all, latching onto existing protests is a tried-and-tested right-wing extremist tactic, one that the Free Saxons also used in the farmers' protests. Furthermore, parts of the right-wing scene are pursuing a cross-front strategy and are striving for an alliance of left and right against "the establishment." The Leipzig demonstration call—"March separately, strike together!"—could be understood in exactly this way. The addition "against those at the top" was also appropriate.

Therefore, Pellmann sees the court proceedings as a process that goes beyond his personal case. "A successful verdict could have created a legal building block in the fight against neo-Nazism and fake news," said the Left Party politician. "Neo-Nazis who attempt to instrumentalize and co-opt political opponents could have been sued for damages across the board – an effective deterrent."

The argument put forward by Pellmann's lawyers that the right-wing extremist group was seeking an "image transfer" of Gysi and the directly elected MP Pellmann also failed to convince the judges. After all, it was unlikely that right-wing extremists would consider a Left Party politician as a key witness for their agenda. The Free Saxons' view of the matter was not available in Karlsruhe. The right-wing extremists were not present, and a Federal Court of Justice lawyer had refused to represent them.