In the age of social media, defamatory statements can have a lasting impact on a professional career and private life. However, it is not always easy to determine whether a statement is insulting, defamatory or even slanderous.
Even if the German Criminal Code names basic formulas for defamation offences, this fact should not obscure that each of these offences consists of several inherently complex elements.
Due to the constantly evolving case law, several “unwritten” elements of the offence must be considered. Thus, a profound knowledge of substantive criminal law is necessary to correctly assess the individual case.
To provide the necessary clarity, Schlun & Elseven Rechtsanwälte offers comprehensive legal support to victims of defamation offences. Whether out of court or in the context of a secondary or private action, our lawyers will represent you with a commitment to restore your good reputation and, if necessary, enforce claims for compensation for pain, suffering, and damages.
For persons who have been confronted with allegations of a defamation offence, we offer a competent and committed defence. With excellent expertise and many years of experience, our legal team is ready to defend your rights as an accused person and ensure the best possible outcome.
The Definition of “Personal Honour” under German Criminal and Defamation Law
In German criminal law, various offences of defamation are standardised in §§ 185-189 StGB. The three most relevant offences are insult (§ 185 StGB), defamation (§ 186 StGB) and slander (§ 187 StGB). They all have in common that they protect “personal honour” and criminalise its deliberate violation by another person. But what does this personal honour mean?
In legal terms, honour is divided into two parts: on the one hand, inner honour and, on the other, outer honour. Inner honour encompasses the subjective sense of honour of the individual, i.e. the person’s personal dignity and inner value.
On the other hand, external honour contains the objective claim to validity in society, i.e. the person’s good reputation and the claim to respect for the person. This honour can be violated in various ways, be it by statements, writing, or other acts or omissions.
A Statement of Fact or a Value Judgement?
If a person feels personally attacked and their honour violated by a statement, the next step is to ask whether the statement is a statement of fact, which can be either true or untrue, or whether it is a value judgement and thus a statement of opinion. This distinction is decisive for determining which criminal liability may apply.
Nevertheless, it is not always straightforward to distinguish, as value judgements and facts are often mixed within a statement. Facts are understood to be all conditions, processes or events of the present or the past that are accessible to evidence. This can also include internal facts, such as motives or intentions, insofar as they are outwardly recognisable.
The essential evidential capacity of a fact thus generally makes it possible to determine whether the allegation is true or untrue. For a factual allegation to be relevant, it must be a “defamatory” fact, which is fulfilled if the fact expresses disrespect or disregard and is likely to affect the personal honour of the person. In the case of untrue statements of fact, the offences of defamation (§ 187 StGB) and defamation (§ 186 StGB) come into consideration.
On the other hand, personal value judgements are all subjective evaluations, assessments, or conclusions characterised by opinion and are beyond proof. Value judgements are, therefore, personal opinions, so persons who make offensive statements often invoke their right to freedom of expression under § 5(1) German Constitution.
This fundamental right carries more weight in the context of value judgements than in the case of factual assertions, so the distinction is also of enormous importance here. However, the limit of freedom of expression is reached in the case of “defamatory criticism”, which is understood as an insulting statement that no longer serves to discuss the matter but only to defame and disparage the person.
When this limit is crossed must always be considered and assessed in the concrete individual case based on the particular circumstances.
If the challenged statement is such an expression of opinion, only criminal liability for insult (§ 185 StGB) can be considered.
Possible Measures against Defamation in Germany
If you find yourself in a situation where a person has insulted you or is threatening to insult you, you can take some measures:
- Talk to the other side: resolving the matter out of court before taking legal action can save time and money for all sides,
- Out-of-court cease-and-desist letters,
- Injunctions/judicial restraining orders,
- Criminal proceedings.
Please note that these are some general measures you can take. Which action is most appropriate for your situation depends on the individual circumstances of each case. Please don’t hesitate to contact our legal team directly for more detailed information.
Before taking legal action, it is advisable to gather data and evidence. Evidence can include screenshots, witness statements, financial records, emails, etc. Collecting data and evidence is advisable in all cases, regardless of whether you are accusing someone of libel or slander or defending yourself against such accusations.
If you seek to talk to the other party before taking legal action. In that case, you should approach the situation calmly and work towards removing the disparaging information and having a written apology or correction published. In any case, you should prepare a cease-and-desist declaration (possibly with a penalty clause) so that the other side does not repeat the statements in the future.
Have a witness accompany you and record the course of the conversation in writing.
Many cases of insults can be solved without involving lawyers and the courts. However, if the person is unwilling to take redress measures and ignores your request, it is advisable to consult a lawyer.
Similarly, if you are approached for allegedly making disparaging remarks: It is worth looking into the matter. It is vital to gather any evidence you have that may be relevant concerning the allegations. Even if the evidence is valid and you are convinced that what you have said or written is not defamatory, you should contact a lawyer.
Even in this case, seeking legal advice can only be beneficial to you.
Temporary Injunctions for Defamatory Material
If an out-of-court settlement fails, it is possible to file an action for an injunction in court and, at the same time, apply for a temporary restraining order. Such a preliminary injunction prevents the (first) publication or repetition of the statement in question since a violation of a preliminary injunction entails legal action on the part of the person violating it.
Such a preliminary injunction should be sought from the court if the offensive or defamatory information could lead to financial loss if published or repeated.
A preliminary injunction can thus effectively protect a company’s reputation because legal proceedings to prove defamation or slander can often take years.
A successful application for a preliminary injunction can prevent the publication/repetition of damaging statements and thus protect the company until the court proceedings have been conducted.
Make sure to consult a criminal lawyer before applying for an injunction.
Criminal Application Requirements
If you, as the person concerned, decide to initiate criminal proceedings for defamatory statements (§§ 185-187 StGB). In that case, it must be noted that, in principle, a criminal complaint must be filed within three months after you became aware of the defamatory act (§ 77b StGB).
Without your application, it is impossible to initiate proceedings. The matter can be reported to the public prosecutor’s office and the competent district court.
Evidence must be presented for such a criminal complaint. If the matter is referred to the authorities, they must have sufficient reason to initiate criminal proceedings.
The suspicion of libel, slander or defamation must, therefore, not only be alleged but substantiated by presenting circumstantial evidence and proof. For example, a printed work containing the allegedly defamatory statement would be strong evidence.
Private Actions for Defamation Cases
It can still happen that the case is rejected by the public prosecutor’s office and not pursued further, for example, in cases of insufficient public interest. Nevertheless, every affected person has a right to prosecution, which is why a rejection does not mean that criminal proceedings are entirely ruled out. In such constellations, the public prosecutor’s office usually refers to private prosecution (§ 374 German Criminal Procedure Code).
In such a private prosecution, the person concerned, as the plaintiff, takes over the prosecution and assumes the public prosecutor’s role. They must, in particular, collect and present the evidence themselves. Inspecting files, collecting evidence, compiling arguments and working with witnesses is very demanding and can therefore be extremely difficult without the help of a lawyer. In cases where a private person conducts the proceedings, the same legal requirements apply to the arguments and evidence presented as in the “usual” state-led proceedings.
For successful proceedings in this way, legal advice and cooperation are therefore not only advisable but almost indispensable, considering the scope, complexity and legal difficulties that frequently arise.
In such a case, our legal experts at Schlun & Elseven Rechtsanwälte will also be happy to advise and support you.
Practice Group: German Criminal Law
German Criminal Law
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