Insult under German Defamation Law

Whether as an expression of a derogatory value judgement in the form of insult or as an untruthful, defamatory statement of fact – under German law, insulting another person is considered a so-called offence of defamation of honour and is punishable as such under § 185 StGB.

The insult requires a manifestation of disrespect, disregard, or contempt that can make the person concerned look contemptible. In contrast to an assertion of fact, a personal and defamatory value judgement must somehow have been expressed towards the person concerned or a third party. Factual allegations can, at most, constitute an insult if they are demonstrably untrue, and secondly, they 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, as can assault. Such assault, which is a qualification of simple insult, would be, for example, spitting on another person or showing the middle finger. On the other hand, general rudeness, tactlessness or aloofness are not sufficient to be considered insults.

According to § 185 StGB, “The penalty for insult is imprisonment for a term not exceeding one year or a fine and, if the insult is committed publicly, in a meeting, by disseminating content (section 11 (3)) or by means of an assault, imprisonment for a term not exceeding two years or a fine.”

If an insulting statement is made concerning a specific person, such a case is – legally speaking – unproblematic.

If, however, the insult concerns a large number of persons (collective), it must involve a group of persons that can still be delimited, as otherwise, the concrete affectedness of the individual person is lacking, which is why a violation of honour is ruled out from the outset.

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 police officers, their members can be determined beyond doubt. In turn, this is sufficient to violate the honour of any individual person, i.e. to insult them, even under a collective name. Considering all circumstances, whether there is sufficient identifiability and thus affectedness must, however, be assessed in the concrete individual case. Under certain circumstances, this may provide a starting point for sophisticated argumentation and effective defence.

Another legally relevant constellation is an insult in private. An exception applies here. If insulting statements are made in the closest confidential circle, they are generally 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 be left with an area of retreat in which they can speak openly, freely and without fear of sanctions.

When these conditions are fulfilled and whether a punishable or unpunishable offence has been committed must again be assessed based on the concrete circumstances of the individual case.

A basic insult can be sanctioned with a fine or a custodial sentence of up to one year. In qualified cases, where the insult is made in public or by means of assault, for example, a prison sentence of up to two years is even possible.

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 h