Insult and Defamation under German Law
Both “insult” and “defamation” can be found in the German Criminal Code. “Insult” is described as the following under § 185 StGB as:
“The penalty for insult is imprisonment for a term not exceeding one year or a fine and, if the insult is committed by means of an assault, imprisonment for a term not exceeding two years or a fine.”
Such insult has been to found to include gestures, actions and insulting comments. Actions have been shown to include spitting at another person. In cases concerning insult, imprisonment or fines are given as sanctions for the offence but the amount of such a fine will be will depend on the facts of the case. There is no set amount provided for the range of insults.
The offence of “defamation” is also provided for in the German Criminal Code and is described as the following (§ 187 StGB)
“Whoever, despite knowing better, asserts or disseminates an untrue fact about another person which is suitable for degrading that person or negatively affecting public opinion about that person or endangering said person’s creditworthiness incurs a penalty of imprisonment for a term not exceeding two years or a fine, and, if the act was committed publicly, in a meeting or by disseminating material (section 11 (3)), a penalty of imprisonment for a term not exceeding five years or a fine.”
Defamation is an offence that can carry serious consequences such as the five years imprisonment mentioned above. However, the defaming of someone in “publicly… or by disseminating material” can have huge consequences for an individual.
Defamation in German Law
Under § 187 StGB the person who provides the “untrue fact” commits this action knowing that it is untrue (“despite knowing better”). This offence refers to an “untrue fact” and is therefore not an offence which concerns a person’s opinion of another individual, but it concerns a claim of an action on the part of the potential victim. An example of defamation, therefore, would involve a statement from Person B that Person A committed tax evasion, despite Person B knowing that Person A did not commit that action. Such a statement becomes particularly damaging when it is stated in public and spreading it through the public by traditional media or social media. Therefore, Person B can use defamation law to protect themselves to fight against the damage caused to their good name.
Should you be accused of this crime, then please strongly consider getting the advice of a qualified and experienced legal professional. Knowing how to respond and practising statements with a lawyer will ensure that more complications do not arise due to any rash comments or statements. In cases of defamation it is up to the other side to show that a criminal offence has occurred, and therefore, with the right legal counsel you will give yourself a better chance.
When considering taking a case for defamation it is also worth consulting with legal professionals in advance. Once again, it must be proved that such statements have reached the required standard and availing of legal counsel will allow for the case to be constructed effectively. Court cases cost time and money and therefore, consulting with a criminal lawyer in advance will help you to determine the best course of action to take.
Malicious Gossip / Slander & Libel under § 186 StGB
Whereas defamation concerns the asserting of “untrue facts” when the person “knows better”, the spreading of malicious gossip (slander) does not require the person to have known better. This type of action can be the spreading of information which the person cannot show to be true but does not necessarily know is false. § 186 StGB states the following:
Whoever asserts or disseminates a fact about another person which is suitable for degrading that person or negatively affecting public opinion about that person, unless this fact can be proved to be true, incurs a penalty of imprisonment for a term not exceeding one year or a fine and, if the offence was committed publicly or by disseminating material (section 11 (3)), a penalty of imprisonment for a term not exceeding two years or a fine.
In its traditional form, “slander” refers to the spoken word or gestures. Such a slander may involve a statement or spreading of rumour that the person in question steals money from their company. Should this work colleague spread the rumour amongst their office, unchecked it could lead to serious consequences for the victim of the slander. They could face disciplinary action or be viewed as someone not to trust. Either consequences If the person spreading the rumour can show that there is truth to the information that they have heard then they will have a defence to their action. Therefore, the person bringing the case should primarily consider it where they can prove the information is untrue.
Libel concerns the written word and can also be found under this “malicious gossip” provision. Such a statement is one that might be found in a newspaper, magazine, blog or article.
Actions which can be taken against Defamation
If you find yourself in the situation where a person has defamed or is likely to defame you, here are some actions which you can take:
- Talk to the other side: resolving the matter outside of court before legal action begins can save time and money for all sides,
- Cease and desist warnings,
- Legal action.
Please note, that these are some general actions that people can take, but which action is best for your situation will depend on the facts. For more specific information make sure to contact our legal team directly.
It is advisable at the time prior to committing to legal action to collect data and evidence. Evidence can consist of screenshots, witness statements, financial records, emails and much more. Collecting data and evidence is advisable in all cases whether you are accusing someone of defamation or defending yourself from the defamation accusation.
In seeking to talk to the other side prior to legal action, approach the situation calmly and look to have the defaming information removed and that a written apology or correction be published. Bring a witness with you and make note of the matter. Many defamation situations have been resolved without the need to turn to lawyers and courts. However, if the person is unwilling to take action and ignores the request then it is advisable to consult with a defamation lawyer.
On a similar note, if you are approached about alleged defamatory statements / distributed information it is worth assessing the matter. It is vital to examine the evidence you have for sharing the alleged defamatory statements. If it is evidentially based and you are confident that what you have stated is not defamatory than also prepare yourself by getting in contact with a legal professional. You may be completely in the right but availing of legal assistance will only be of benefit to your case.
If the defamatory statement has not yet been published, the person accusing of defamation can bring about an injunction. An injunction prevents the information in question from being published as acting against an injunction leads to legal action on the part of the person breaking it. Such an injunction should be sought where the defamatory information could lead to financial loss should it be published.
A temporary injunction can protect the company’s reputation as court action to prove defamation may take years to resolve. A successful application of an injunction can prevent the publication of damaging statements and thus protect the company while the court case starts to happen. Contact a criminal lawyer before making an application for a temporary injunction.
Bringing a Legal Case
When deciding to bring a legal case against defamation the accuser must be aware that this criminal complaint should be made within three months of becoming aware of the defamation (§ 77b StGB). This matter can be brought to the notice of the public prosecutor’s office and that of the local court with competence in this matter. If the matter is of public concern the matter may be resolved through a case brought by the state, but should it not be of public concern it is more likely to be resolved as a private prosecution.
When bringing a case for defamation there must be some evidence. When bringing the matter before the authorities they should have good reason for bringing forward the action. The suspicion of defamation needs to be substantiated. Having a printed work with the alleged defamatory statement is of course hard evidence.
Private Legal Action
The case may be rejected by the public prosecutor’s office and not pursued by them. This may be because the action is not of public interest, but this does not have to be the end of the line. The route of private legal action may also be open for the person alleging the defamation. This is allowed for under § 374 StPO (German Code of Criminal Procedure).
In such a private action, the plaintiff has to collect the evidence themselves and should work with an experienced legal professional in putting the case together. Accessing files, gathering evidence, putting together arguments and working with witnesses can be difficult to put together without legal assistance. If the case concerns disputed amounts of compensation of €5000 or more, it becomes necessary to be represented by a lawyer.
Freedom of Press / Opinion
Where a person expresses their opinion of another person or company without referencing specific actions they have taken or alleged facts they are less likely to have committed defamatory action. Mere expression of opinion does not lead to a defamatory action as this would invalidate the work of restaurant critics among others. In fact, freedom of expression is protected by § 5 German Constitution (Grundgesetz). Using defamation law as a means of censorship is not permitted without valid justification.
Similarly, in the media, a journalist making allegations about individuals or companies should have evidence of suspicions when it comes to publishing what can be construed as “untrue facts”. Publishing opinions or statements based on “facts” that have been found to be untrue can lead to defamation acts being taken against the person publishing. The protection of a person’s “right to personal honour” is seen as the border of the protections laid out by § 5 GG.
§ 193 StGB also applies for the safeguarding of legitimate interests and provides allowances for the expression of critical opinions.
Court Action: Defamation Case
If the matter is brought to court, the person claiming defamation will have to demonstrat