“Whoever asserts or disseminates a fact about another person which is suitable for degrading that person or negatively affecting public opinion about that person, unless this fact can be proved to be true, incurs a penalty of imprisonment for a term not exceeding one year or a fine and, if the offence was committed publicly or by disseminating material (section 11 (3)), a penalty of imprisonment for a term not exceeding two years or a fine. “
In addition to insult and libel, the German Criminal Code also recognises so-called “malicious gossip” as a further offence of defamation. While insult primarily covers personal value judgements in the form of derogatory and contemptuous opinions, the accusation of malicious gossip is limited exclusively to defamatory statements of fact. These must be asserted (one’s own conviction) or disseminated (passing on the knowledge of others). In contrast to defamation, which involves the assertion of “untrue facts” although the person “knows better”, malicious gossip does not require that the person knows the untruth. Instead, it is sufficient that it involves the assertion or dissemination of information that the person cannot prove is accurate but does not necessarily know for sure is false. On the other hand, the fact is demonstrably true; criminal liability is ruled out. In addition, the factual assertion must necessarily be expressed to a third person (“in relation to another”).