Insult under German Defamation Law

§ 185 StGB: “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.”

Under German defamation law, an insult can be considered a crime. Such an insult requires the manifestation of disrespect, disregard or contempt, making the person concerned look contemptible. In other words, a personal and defamatory value judgement must somehow have been expressed towards the person concerned or a third party, as distinct from an assertion of fact. Factual allegations can at most constitute an insult if they are firstly demonstrably untrue and secondly have been expressed personally to the person concerned.

The “statement” can be committed in various ways: For example, it can typically be made by the spoken word or in written form. In addition, an omission can also constitute an insult and, in turn, an assault. Such an insulting assault would be, for example, spitting on another person or showing the “middle finger” and constitutes a qualification of simple insult. On the other hand, general rudeness, tactlessness or aloofness are not sufficient to qualify as an insult.

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Collective Insults under German Law

There are usually few problems if an insult is made specifically about a particular person. However, suppose the insult concerns a large number of persons (collective). In that case, it must concern a group of persons that can still be delimited, as otherwise the individual person is not concretely affected and “a violation of honour” is therefore ruled out. For example, the blanket insult of all “soldiers”, “policemen”, or the “people” is too general to violate the honour of the individual. If, on the other hand, an insulting statement refers to a clearly definable and manageable group of soldiers or policemen and the members can thus be determined beyond doubt, this is in turn sufficient to offend the honour of every individual even under a collective designation, and therefore to be considered an insult. However, whether there is sufficient identifiability and thus affectedness must be assessed in consideration of all circumstances in the concrete individual case.  This may provide a competent lawyer with a starting point for sophisticated argumentation and effective defence.

Another important constellation is “insult in private”; here, an exception applies. Suppose insulting statements are made in the closest confidential circle. In that case, they are in principle not directed against the validity and reputation of the person in the general public and are therefore unpunishable. However, the prerequisite is that the interlocutor can guarantee confidentiality according to the circumstances. The reason for this is that every person must have an area of retreat in which they can speak openly, freely and without fear of sanctions. When these conditions are fulfilled and thus whether an offence is punishable or not, must again be assessed based on the concrete circumstances of the individual case.


Range of Punishment

The simple insult can be sanctioned with a fine or imprisonment for up to one year. In qualified cases, where the insult is made in public or through assault,  a custodial sentence of even up to two years is possible.


Protection of Legitimate Interests (Impunity)

In connection with expressions of opinion (especially sharp or even polemical personal criticism) which can quickly be perceived by the counterpart as an insult or humiliation and thus possibly punishable, the competing fundamental right of freedom of opinion and freedom of the press from § 5 (1) German Constitution must be considered. As already indicated, the protection of personal honour (defamation) must not prevent the general formation and expression of opinion and thus also of general public discourse. For in principle, the constitutionally guaranteed freedom of opinion is a cornerstone of democracy, which in such cases must be weighed against the protection of the general personal right of the person.

Therefore, statements which, in principle, constitute an insult (§ 185 StGB) or also malicious gossip (§ 186 StGB) can, if necessary, be justified via the so-called “perception of justified interests” according to § 193 StGB, which in the end means exemption from punishment. In principle, any private, public, idealistic or pecuniary interest under the legal system can be considered legitimate.

A simple example of when legitimate interest can be said to be exercised is that of a restaurant critic. In the course of their professional activity, it may happen, that they publicly criticise and reprimand the performance of a chef, which can be understood as insulting. However, if, at the same time, they can base their criticism on comprehensible evidence (e.g. mushy vegetables, tough or cold meat, etc.), their negative assessment would probably be justified via § 193 StGB. Journalists are often on the borderline between still permissible reporting and impermissible because of defamatory dissemination of information. Especially in today’s incredibly fast-moving world, it is of enormous importance for journalists and their publishers to publish information before anyone else, which in turn can quickly lead to false reports that can be offensive and defamatory. In this case, the journalist must, therefore, within reason, check the information obtained, especially in the case of (derogatory) reports, for the substance of the facts. If they do not sufficiently check the truthfulness of the underlying facts and if these turn out to be untrue, they cannot justify it based on the exercise of legitimate interests.

However, it must be noted that the concrete assessment is always a question of the individual case. Even if a legitimate interest is perceived on the merits, this does not automatically mean 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 hot-blooded word duel between two well-known politicians.

This is why it is worthwhile to seek professional legal advice and support in libel and defamation cases. Often, a sophisticated defence strategy with a solid and coherent line of argument can lead to vindication. If you are confronted with an allegation of libel or similar, do not hesitate to contact us – our legal experts can work with you to develop the best possible defence strategy for 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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