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Defamation Law in Germany: Insult and Slander

Insults and other cases of defamatory statements indeed refute the old rhyme, “Sticks and stones may break my bones, but words may never hurt me”. Defamation offences are clear examples of how words – whether written or spoken – can cause harm to others. If defamatory statements go unchallenged, they can significantly affect a person’s professional career and personal life. False accusations of crime or misconduct in the workplace can have serious consequences, as can lies about a person’s private life. Occasionally, such events can spill over, and it may be necessary to seek advice from expert legal counsel.

On the other hand, freedom of expression and freedom of the press from § 5 (1) German Constitution must also be respected. Criminal law should not be used irresponsibly to prevent opinion-forming debates and discussions. This is especially true for matters involving influential figures, such as politicians and events of public interest. How can a fair balance be achieved between the competing interests of protecting personal honour or respect for personality and the right to freedom of the press and freedom of expression?

This article provides an overview of the law of defamation in Germany and examines the options available to those facing allegations of insult or defamation. However, this article should not be seen as a substitute for professional legal advice. Don’t hesitate to contact our law firm directly for expert assistance in individual cases.

We provide our clients with defamation law representation and advice.

As a full-service law firm, Schlun & Elseven Rechtsanwälte will support you in your defamation case comprehensively.

What does “Personal Honour” mean?

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 the so-called “personal honour” and criminalise its deliberate violation by another person. But what does this personal honour actually 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.


Statement of Fact or Value Judgement?

If a person feels personally attacked and their honour violated by a statement. In that case, 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 basic evidential capacity of a fact thus generally makes it possible to determine whether the allegation in question 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 that 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 that the distinction is also of enormous importance here. However, the limit of freedom of expression is reached in the case of so-called defamatory criticism. This 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 German Criminal Code) can be considered.


Possible Measures against Defamation

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. For more detailed information, don’t hesitate to contact our legal team directly.

Before taking legal action, it is advisable to gather data and evidence. Evidence can include screenshots, witness statements, financial records, emails and more. 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.

Out-of-Court Settlement

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 having the disparaging information removed and 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 not willing 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 important 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. Because even in this case, seeking legal advice can only be beneficial to you.

Temporary Injunction

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. This is 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. Consult a criminal lawyer before applying for an injunction.

Criminal Application Requirement

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 the presentation of circumstantial evidence and proof. A printed work containing the allegedly defamatory statement, for example, would be strong evidence.


Private Action

It can still happen that the case is rejected by the public prosecutor’s office and not pursued further. This may be because the complaint is not of sufficient public interest. Nevertheless, every affected person has a right to prosecution, which is why a rejection does not mean that criminal proceedings are completely 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 themselves. This means that they assume the role of the public prosecutor and 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. This is because even if the proceedings are conducted by a private person, 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 is therefore not only advisable, but almost indispensable, taking into account the scope, complexity and the legal difficulties that frequently arise. In such a case, too, our legal experts at Schlun & Elseven Rechtsanwälte will be happy to advise and support you.

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Practice Group: German Media & Freedom of Speech Law

Practice Group:
German Media & Freedom of Speech Law

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Dr. Matthias Wurm

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Florian Dördelmann

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