In connection with expressions of opinion, especially with sharp or controversial criticism aimed at the personal, which can quickly be perceived by the counterpart as an insult or humiliation and is thus possibly punishable, the competing fundamental right of freedom of opinion and freedom of the press from Article 5 (1) German Constitution must be considered.
As already indicated, the protection of personal honour via criminal offences for the protection of personal honour must not lead to the prevention of the general formation and expression of opinion and, thus, also of general public discourse.
In principle, the constitutionally guaranteed freedom of opinion is a cornerstone of our democracy, which in such cases must be weighed against the protection of the general personal right of the person concerned.
Therefore, statements that, in principle, constitute an insult (§ 185 StGB) or also defamation (§ 186 StGB) can, if necessary, be justified via the “perception of justified interests” according to § 193 StGB, which in the end means exemption from punishment. In principle, any private, public, ideal or material interest per the legal system can be considered a legitimate interest.
A simple example of when a justified interest can be said to exist is that of a restaurant critic. During their professional activity, it may happen that they publicly criticise and reprimand the performance of a chef in a harsh manner, which can be understood as insulting. However, if, at the same time, they can base their criticism on factual and thus comprehensible evidence (e.g. mushy vegetables, tough or cold meat, etc.), their negative assessment would probably be justified via § 193 StGB.
Journalists, too, are often on the borderline between still permissible reporting and impermissible because of defamatory dissemination of information. Particularly in today’s extremely fast-moving times, it is of enormous importance for journalists or their publishers to publish information before anyone else, which in turn can quickly lead to false reports that may well appear offensive and defamatory to those concerned.
In this case, the journalist must, therefore, check the information obtained within reason, especially in the case of (derogatory) reports, for the substance of the facts. If he does not sufficiently check the truthfulness of the underlying facts and if these turn out to be untrue, they cannot justify themselves based on the exercise of legitimate interests.
It must be noted, however, that the concrete assessment is always a question of the individual case. Even if a legitimate interest was perceived here, this does not automatically mean that criminal liability for insult or defamation is ruled out. Instead, a weighing of the interest in respect of the person concerned must always take place, in which all circumstances of the individual case must be considered.
It is evident, for example, that a comment by a football coach during or shortly after a match is to be judged differently than a word duel between two well-known politicians.
For this reason, it is worthwhile to seek professional legal advice and support in cases of libel and defamation. Often, a sophisticated defence strategy with a strong and coherent argumentation can lead to vindication. If you are faced with an allegation of libel or similar, please do not hesitate to contact us. Our legal experts can work with you to develop the best possible defence strategy.