24 September 2015
Ioana Ortance Onu graduated with a First Honours Law LL.B degree in July 2015 and chose to do a dissertation in the field of Human Rights, more specifically, on the freedom of expression in Germany in the European context, contrasted with the more liberal American approach. Ioana is starting an LLM in ‘International Law’ at Lancaster in October.

In the democratic society we live in, freedom of expression is believed to be a key right for the modern person, especially for the Western man. We cannot imagine not being able to speak our minds out, to caress, punch or defend with our words, or to give our opinions on matters ranging from Parliamentarian reforms to Miley Cyrus’ VMAs outfit. However, it is not always perceptible that freedom of expression can differ from state to state although this can have essential domino effects in our tight European community.

In my research I have examined freedom of expression as advocated by a key player on the European stage. Germany, despite being a strong economic force, it is still haunted by quite recent history: the failed attempt of establishing a democracy through the Weimar Republic (1918-1933), the rise and rule of Hitler and the Nazis (1933-1945), and the division into East Germany and West Germany which forced on their people two different ideologies: Communism and Democracy. The West, and in 1989 the newly reunited Germany, has adopted the Basic Law as their Constitution, entrenching the principle of human dignity as its outmost and unalterable right. Many academics in believe that through this enforcement, speech became held tight by having imposed on it a number of non-debatable truths. 

My examination has highlighted that speech in Germany is a product of the legacies inherited from its controversial history, therefore needing a balance between expression and dignity. This is similar to a chess game of conflicting shadows that has the potential to bring more conflict than harmonisation. As such, the German approach seems flawed in three main ways: firstly, because of their constant consciousness of the Third Reich; secondly, because of the different procedures of understanding and dealing with the Nazi period used by the two regimes immediately after the Second World War, and thirdly because of the difficulty of reconciliating the different values of the two German states after their 1989 reunification. Consequently the shadows of its past are still alive sixty-nine years after the end of the Second World War, having restrictive consequences on the liberty of speech.

Furthermore, a paradox arises because dignity is reliant on freedom of expression; without the liberty of debating the interpretation of the concept of dignity, any definition, including tyrannical and self-serving ones, can easily be defended as the norm without anyone realising that they might be wrong. Hence, without the guarantee of free speech there cannot be a guarantee of dignity. Meanwhile, the current limitations of speech in Germany only seem to drive extremism and nationalism underground, failing to deal with the root of the problem, as shown by the December 2014 Dresden demonstrations and the quick rise in their support.

Many academics have argued in favour of the relaxation of the limitations on expression, proposing that only when everyone can feel free to criticise each other without fearing chastisement, open dialogue will become possible and better outcomes will follow.  Such changes, however, are unlikely to occur any time soon. Germany’s loyalty towards its Basic Law and the European respect towards its strong human rights culture do not show a pressing need for change. Perhaps this is true: a balance between the rights of the speaker and those of the listener has already been achieved and whether it is a weak or a strong one, only time will be able to tell.