Defence in the Case of Suspected Defamation in Germany

The offence of defamation refers only to demonstrably untrue facts and therefore does not include expressions of opinion by one person about another. In comparison to insult (§ 185 StGB) and defamation (§ 186 StGB), the offence of defamation protects not only personal honour but also the creditworthiness of a person. An example of typical defamation would be the allegation by person B that person A has committed tax evasion. However, person B knows that person A has not committed this act. Such an allegation is particularly damaging if it is made public and spread through traditional media or social media. Therefore, person A can and should defend himself against the damage to his reputation.

If you are falsely accused of such an offence or other defamatory statements are made about you, you should seek the advice of a qualified and experienced lawyer. Knowing how best to react in such a situation and rehearsing the responses with a lawyer can ensure that there are no further complications due to rash spontaneous statements. After all, in defamation cases, it is up to the other side to prove that the factual allegation is true – this is a remarkable reversal of the burden of proof, which is advantageous for you as the victim of the offence. The right legal counsel can help you to take advantage of such benefits effectively.

If you are considering a defamation action, it is worth consulting with legal experts on this in advance. Especially in the case of defamation offences, there are numerous tricky questions of delimitation and assessment, some of which are not easy to answer, even for lawyers.

We at Schlun & Elseven Rechtsanwälte have in-depth knowledge and a wealth of experience in this area, which enables us to advise you in the best possible way. Court proceedings cost time and money, which is why a prior consultation with a criminal lawyer will help you determine the best course of action.

Defamation, compared to libel and slander, is the most serious of the three offences, and this is reflected accordingly in the range of penalties. It is true that even insulting a person in public can mean that their reputation can never be fully restored, especially in this day and age of the Internet, so that in all cases, there are serious consequences. However, defamation does not require a simple, intentional act but the knowing assertion or dissemination of demonstrably untrue facts, which is considered particularly punishable. Also, the recorded credit risk can lead to further serious disadvantages for the person concerned.

For these reasons, even simple defamation can be punished with a fine or imprisonment of up to two years. In qualified cases, where the offence was committed in public, at a meeting or by disseminating the content, there is even the possibility of up to five years imprisonment.

Unlike in the context of insult or defamation, the perception of legitimate interests under § 193 German Criminal Code does not apply as a ground for justification in the case of defamation and thus cannot lead to impunity. However, this is based on the easily comprehensible consideration that the person who deliberately and demonstrably alleges or spreads untrue facts can no longer perceive any legitimate interest at all. After all, there can be no legitimate interest in information about “untrue” facts.

Irrespective of the possibility of criminal prosecution, every affected person has a claim for redress, which they can assert in private action (Section 374 of the German Code of Criminal Procedure).

In a private action, the affected person asserts their claims for reparation or herself. This means that he assumes the role of the plaintiff and, as such, must overcome numerous hurdles. The collection of evidence, the inclusion of witnesses, the inspection of files, and the compilation and presentation of arguments are very extensive and legally complex tasks. Even if a private person conducts the proceedings, the same legal requirements apply to the arguments and evidence presented in criminal proceedings initiated by the public prosecutor’s office. Experienced legal advice is not only advisable but almost indispensable for successful proceedings in this way, considering the scope, complexity and legal difficulties that frequently arise. In such a case, our legal experts are there to support you.