In its decision of 17 January 2019 (16 W 54/18), the Higher Regional Court of Frankfurt am Main rejected a civil application for an injunction concerning confidential statements within the closest family circle. This does not mean that insults within a family are generally exempt from criminal liability.
Family dispute
In a recent decision, the Higher Regional Court of Frankfurt am Main recognizes the family as an area with a particularly protected relationship of trust. The protection concerns confidential communication within particularly close relationships of trust, not every insulting statement made within a family.
The background to the decision is a family dispute. According to his own account, the father held his son by the neck/throat and pushed him from behind to get him to walk faster. After the father had left the house, his wife – the child’s mother – filmed their crying son and passed the video to her mother – the husband’s mother-in-law. The mother-in-law has now sent the video to other family members. Furthermore she claimed her son-in-law is abusing her grandchild. She also filed a criminal complaint and showed the video to the Youth Welfare Office.
The son-in-law then demanded that she refrain from making such allegations in the future and not pass them on to third parties. He wanted his mother-in-law to sign a cease-and-desist letter.
The Higher Regional Court rejected the man's application for an interim injunction. It regards statements made in the family circle as privileged; there is a special area free of a special protection against defamation. The area of confidential communication within particular relationships of trust is regarded as an insult free sphere. The court's reasoning protects the freedom to speak openly in such confidential relationships; its ruling on the civil injunction does not establish blanket immunity from criminal liability. It does not matter whether the statements are made in a personal conversation or in writing, for example via WhatsApp.
Consequences for Criminal Law
The protection of confidential communication can also be relevant in criminal cases. However, the refusal of a civil injunction does not automatically mean that every statement within the family is not punishable by law. The particular relationship of trust and the circumstances of the communication must be considered.
However one may not overestimate the decision. A direct kinship does not automatically mean that a particularly protected insult free area exists. Between brothers and sisters, who quarreld for years, rather no insult-free area exists. The closer, however, the relationship of trust is, the more likely confidential remarks about third parties are to fall within that protected sphere.