faq
Slogans like “From the river to the sea – Palestine will be free” can currently be heard frequently at pro-Palestine demos. Are they punishable? How far does freedom of expression go – and what applies to labor law?
FSV Mainz 05 has released its player Anwar El Ghazi because of a – now deleted – posting with the slogan “From the river to the sea – Palestine will be free”. Noussair Mazraoui has to justify himself at FC Bayern Munich. But “normal” employees can also get into trouble because of public statements – at least under certain circumstances.
This always applies to political statements Freedom of speech?
Freedom of expression is a valuable asset and an essential fundamental right of our constitution. It is found in Article 5 of the Basic Law and gives everyone in Germany the right to form their own opinion and to express it publicly.
However, the second paragraph of this article expressly states that there are also limits to freedom of expression: “These rights find their limits in the provisions of general laws, the legal provisions for the protection of young people and in the right to personal honor.” So if a statement violates a criminal law, the protection of freedom of expression no longer applies.
According to some lawyers, this could be exactly the case with the sentence “From the river to the sea – Palestine will be free”. A prohibited “condonation of crimes” (Section 140 of the Criminal Code) could come into question. This is particularly conceivable if the statement is made in direct connection with the most recent terrorist attacks by Hamas. Because then the impression is clearly conveyed that the area “from the river” (Jordan) “to the (Mediterranean) Sea” should be free of Jews and the State of Israel. And this would also legitimize Hamas’s mass murder of Jews.
The public prosecutor’s office in Berlin even sees this statement as an initial suspicion of incitement to hatred (§ 130 StGB) and is currently investigating because this sentence was shouted at demonstrations there. However, since the current events are still very “fresh”, there are no judgments yet in this context.
How can employers react in such cases?
“Employees do not give up their right to freedom of expression when they sign an employment contract,” says Mannheim law professor Philipp Fischinger from the University of Mannheim. Of course, employees can also rely on freedom of expression. This is even more true when it comes to statements made in private that have no direct connection to work. The private lives of their employees are actually none of employers’ business.
However, if public statements harm the employer, for example because they disturb the peace in the company, then they can have consequences under labor law. This can be the case if employees commit crimes with their statements. According to labor law expert Fischinger, it plays a crucial role whether the statements “reflect” on the employer, for example by putting him in a bad light, or otherwise put a strain on the employment relationship or the overall peace in the company.
So there can be certain crimes in private life that in some cases are not the employer’s concern, but in others they are. In case of doubt, the courts must decide whether a sanction from an employer, such as time off, warning or dismissal, is legal. Especially in labor law, it always depends on the specific individual case.
What applies in labor law to statements made by the… freedom of speech are covered?
Even statements that are covered by freedom of expression can become problematic under certain circumstances. “Even statements that are not punishable can disturb the peace in the company and therefore be sanctioned. That is not excluded per se,” says Fischinger.
Imagine, for example, an employee who constantly publicly denigrates the products that his or her employer produces. This is generally a permissible expression of opinion and not punishable, but it can still be problematic under labor law – after all, employers can expect that their employees will not bring their own company into disrepute.
Do different rules apply to celebrities than to “ordinary citizens”?
Of course, the same laws apply to everyone in Germany. But since labor law is always about the specific individual case, these can be assessed differently.
Well-known professional athletes in particular often have a high reach with their social media channels. If you post or share something there, it will reach many more people and may reflect much more strongly on the employer.
For most “normal” employees, however, strangers simply don’t know who they work for. Statements made in private life – for example online or at demonstrations – are not associated with the employer and are therefore not relevant under labor law.
In addition, professional footballers usually have temporary employment contracts, which usually cannot be terminated with a regular notice of termination, but only on an extraordinary basis. For such a termination to occur, there must be a very significant breach of obligations arising from the employment relationship.
In all cases, regardless of whether you are a professional footballer or an ordinary employee, termination is always the last resort. If other sanctions, such as a warning or an exemption, are sufficient, these will take precedence.
Is there a risk that criticism of Israel will generally be suppressed?
In principle, criticism of the policies of the State of Israel is possible without immediately threatening labor law or even criminal consequences. The same applies to expressions of sympathy or pity for the civilian population in the Gaza Strip who is suffering from Israel’s current military actions. Whether these are permissible under international law can also be discussed publicly – and it can be controversial.
Freedom of expression also protects outlandish opinions that are rejected by a large part of the population, because fundamental rights are always the rights of minorities. According to the Basic Law, society must also tolerate the opinions of minorities as long as they do not violate the law.
Public statements become legally relevant if they condone serious crimes – or incite hatred or violence. In general, freedom of expression does not mean that everyone else has to approve or even share this opinion. Criticism of certain statements, decisive contradiction and sharp counter-speech do not impermissibly restrict freedom of expression.