Higher Regional Court Frankfurt: "Non-offensive sphere" within the closest family circle
In family legal disputes, situations can arise in which a defamatory statement is made to other family members about a spouse or relative. It is not uncommon to be faced with the question of whether legal proceedings are to be feared and whether the statement has an impact on family law claims.
A claim for injunctive relief by the person concerned against the person making the statement under Section 1004 (1) BGB in conjunction with Section 823 (2) BGB could be considered. § Section 823 (1) and (2) BGB.
In its judgement of 17 January 2019 (16 W 54/18), the Higher Regional Court of Frankfurt ruled that there is an area free of defamation within the closest family circle that makes it possible to speak freely without having to fear legal prosecution.
In this specific case, the plaintiff had sought a temporary injunction against his mother-in-law to stop her from making and disseminating a large number of statements after his mother-in-law had claimed to her sister and her mother that the plaintiff was abusing his family.
The Higher Regional Court of Frankfurt ruled that there was no right to injunctive relief. Accordingly, the statements were defamatory for the plaintiff, but not unlawful.
Case law derives from Article 1 (1) and Article 2 (1) of the Basic Law that there is an area of confidential communication within specially organised relationships of trust, which includes in particular the closest family circle. The Higher Regional Court of Frankfurt refers to this as an "area free from defamation" or a "sphere free from offence".
In the case of a conversation within the closest family circle, the person making the statement may generally assume that the confidentiality of the conversation will be maintained. It does not matter whether the statement is made verbally or via messaging services such as WhatsApp.
The situation is different if there is reason to assume from the outset that the content of the conversation will be disclosed by the family members outside the immediate family circle or that an outside third party will become aware of the WhatsApp message. This is because the statement ceases to be worthy of protection as soon as it is made to outsiders or the public.
Furthermore, a defamatory statement could result in the forfeiture of the maintenance claim for spousal maintenance in accordance with Section 1579 No. 3 BGB. The same applies in accordance with § 1611 Para. 1 BGB for maintenance for relatives.