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 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.