What are some examples of value judgments

Value judgments and assertions of fact

The Internet offers a wide range of opportunities for everyone to express their opinion on this and that. Some utterances make sense, some make less sense and some are completely nonsensical.

In addition, a statement can be hurtful. The injured person then asks himself whether he can defend himself against this statement. Whether this promises success depends essentially on whether the utterance as a value judgment is primarily subject to the protection of freedom of expression or whether it is a purely factual assertion that, if it is untruthful, can be quickly prevented.

While before the Internet age disputes about the question of whether something should be classified as a subjective opinion or an objective assertion primarily affected the print media and thus journalists and publishers, today anyone can be a perpetrator or a victim.

The "perpetrators" usually defend themselves by stating that their utterance is covered by freedom of expression. It is therefore crucial for the admissibility of a statement whether it is a mere assertion of facts or a value judgment.

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Basics

Starting point freedom of expression

The fundamental right to freedom of expression gives everyone the right to freely express and disseminate their opinion in words, writing and images, without expressly distinguishing between value judgments and assertions of facts. The assertion of a fact falls within the scope of protection of freedom of expression insofar as it is a prerequisite for the formation of opinions. As a rule, true statements have to be accepted, even if they are disadvantageous for the person concerned. This also applies to statements in which actual and judgmental elements interpenetrate. When weighing up, the correctness of the actual content of the utterance on which the value judgment is based is important. To distinguish the type of statement, it depends on whether the utterance is accessible to evidence (then a factual assertion) or whether it is a mere opinion and believe acts (then value judgment).

Before checking whether it is a factual assertion or a value judgment, it must first be determined what the content of the statement is. When determining the content of the message, the focus must be on how the utterance is understood by an impartial average recipient, taking into account general usage. The subjective intention of the person making the statement and the subjective understanding of those affected by the statement are not to be taken into account. An isolated consideration of a controversial part of the statement is generally not permitted. Rather, the linguistic context and other recognizable accompanying circumstances must also be taken into account. The decisions made so far in the case of Jan Böhmermann's "humiliating poem" show that this is not always easy.

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Value judgment

Value judgments (including expressions of opinion) are shaped by the subjective relationship of the person making the statement to the content of his statement. The value, correctness or reasonableness of the utterance does not matter. A value judgment is not accessible to objective clarification by means of evidence and can therefore not be classified as true or untrue. At best it can be rejected as wrong or accepted as right.

Disparaging criticism may - as long as it is relevant - be expressed sharply and ruthlessly. An exaggerated, ironic or polemical expression of the subjective opinion is also permissible. The quality of the utterance is also irrelevant. In the well-known and mostly unpopular review portals, (negative) reviews must always be checked from this point of view. In the best case, the evaluations should express the disapproval of the business conduct of the evaluated and thus contain a subjective evaluation, which is therefore permissible. In many cases, however, negative evaluations lack the necessary reference in kind, so that an inadmissible value judgment exists.

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Assertion of fact

A factual assertion is present if, from the recipient's point of view, the elements of the statement, the belief or opinion, take a back seat to the underlying facts. Facts are concrete events or conditions that can be determined according to time and space. Hence, with the help of evidence, they can be categorized as objectively true or untrue assertions.

The protection of freedom of expression only covers true facts that are aimed at forming an opinion. Deliberately untrue facts or facts whose untruth is not unequivocally established at the time of the statement are not protected.

Since untrue facts are not worthy of protection, the distinction between an inadmissible untrue factual assertion and an admissible value judgment is often important. This delimitation is often difficult because there may be room for interpretation as to whether an utterance is mainly characterized by evaluative elements of the opinion or whether its content is purely objective.

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Legal Limits

Anyone who feels offended by someone else's statement can, in addition to filing a criminal complaint for insult in accordance with Sections 185 ff. In disputes of this kind, the freedom of expression of the person making the statement, Article 5, Paragraph 1 of the Basic Law, is always weighed up against the general personal right of the person who is injured, Article 2, Paragraph 1 of the Basic Law.

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freedom of speech

The fundamental right of freedom of expression gives everyone the right to freely express and disseminate their opinion in words, in writing and in pictures, without expressly distinguishing between value judgments and assertions of facts. The assertion of a fact falls within the scope of protection of freedom of expression insofar as it is a prerequisite for the formation of opinions. As a rule, true statements have to be accepted, even if they are disadvantageous for the person concerned. This also applies to statements in which actual and judgmental elements interpenetrate. When weighing up, the correctness of the actual utterance on which the value judgment is based is important.

With regard to freedom of expression, the concept of opinion in Article 5, Paragraph 1 of the Basic Law is to be understood broadly: If an utterance is characterized by the elements of an opinion, belief or opinion, it falls within the scope of protection of the fundamental right.

While untrue factual assertions regularly justify an injunction, expressions of opinion enjoy extensive protection on the basis of Art. 5 GG, so that not every unpleasant expression of opinion for the person concerned can also be prevented at the same time. Therefore, everyone has to put up with negative criticism to a certain extent.

The protection of freedom of expression is not unlimited. Limitations can be found in Article 5 (2) of the Basic Law. According to this, freedom of expression can be restricted by general laws as well as in favor of the protection of minors and personal honor. General law within the meaning of Article 5, Paragraph 2 of the Basic Law are, for example, civil law claims for injunctive relief, counter-notification or monetary compensation according to §§ 823, 1004 BGB or the criminal offenses in §§ 185 ff. StGB.

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General personal rights

The limit of freedom of expression according to Article 5, Paragraph 1 of the Basic Law is also exceeded if the utterance presents itself as a formal insult or defamatory criticism. So if the person concerned is violated in their personal rights. This is the case when the personal insult or degradation pushes the factual issue completely into the background, so it is no longer about the argument in the matter, but about defaming the person concerned, who, beyond exaggerated and polemical criticism, belittles and, as it were, of the Should be pilloried. However, the requirements for this are high.

As a prominent example, reference can be made to Jan Böhmermann's “humiliating poem” about the Turkish President Recep Tayyip Erdogan. Although blatant and with swear words, this was possibly tasteless, but still legally permissible. It was banned by the Hamburg Regional Court (in part) - confirmed by the Hamburg Higher Regional Court. However, these are wrong decisions that the Federal Court of Justice will correct.

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