Art vs Personality right: German rapper Bushido causing "stress for no reason"?

From Germany comes the news that Berlin's mayor Klaus Wowereit has filed legal action against a new song by German rapper Bushido: "Stress ohne Grund" ("Stress for no Reason").  The news has prompted German media to excitedly discuss the legal conflict between one person's personality right and another person's right of free expression and/or freedom of art.  Today, the debate heated up further after the German authorities for the protection of youth have ruled that Bushido's song (together with the album that contains it) is to be banned for minors.

Bushido as shown on Wikipedia

In his latest offering enfant terrible Bushido is rapping about "coming to a party and causing stress for no reason."  However, the song also includes lyrics that are directly aimed at public figures and which can very easily, indeed only, be interpreted as a call for violence.  About Claudia Roth, the head of the German Green Part, Bushido raps: "I'll shoot at Claudia Roth and she willl be full of holes like a golf course".  About Mr Wowereit, who is openly gay, he includes rather crude, homophobic comments relating to his sexualty.  Mr Wowereit, who is known to be tolerant, clearly did not find the song funny and has started criminal proceedings.  Another politican, Serkan Tören, has also filed a criminal complaint after Bushido rapped that he wants "Sekran Tören to bite into grass".  That is a German colloquial term for wanting someone to die. Ms Roth does not want to start any kind of legal proceedings, finding the whole matter "sad".

The underlying legal conflict is not a new one and boils down to a balancing of competing human rights, those of Bushido's "victims" and that of the artist Bushido: the general personality right is protected under Articles 2(1), 1 (1) German Constitution.  Freedom of expression is covered under Article (1) German Constitution.  Freedom of art equally is a human right under Article 5(3) of the German constitution and the ambit of freedom of art is even wider than that of freedom of expression under Article 5(1). All types of art are protected and no "judgment" concerning quality of the art should be made.  Commentators agree that Mr Wowereit appears to have a case since Bushido's song either fall under the law of defamation under §§185 German Criminal Code or qualifies as enticement to violence.  Thus the balance would tip in favour of Mr Wowereit's personality right since the song's core message is defaming.  If he manages to obtain an injunction then the song, as is, would be completely banned from being sold in Germany (not only to minors).

Bushido has already defended his song and admitted he may have overshot the mark. He also said that he would "only shoot with words and not with anything else." However, he celebrated today's ban for minors as a "win" on Twitter.

You don't have to be a cynic to realise that the whole thing is a ploy to boost declining record sales.  The legal consequences (damages, fines, injunction) Bushido can expect are minor, as a jail sentence of up to two years is only a theoretical option. News site n-tv.de cites media lawyer Tim Hoesmann who says that demanding higher fines or jail sentences would be asking too much of the law. Even a ban will just prompt a "clean" version. It is disheartening that homophobic comments and calls for violence should help record sales even though Bushido states that the whole debate was "over the top" and that Mr Wowerewit was just keen on receiving damages.  Perhaps it is even more disappointing that a millionaire artist can't come up with something that's a little more inspired and could provoke a proper debate. Alas, should this be a matter for the courts?