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Malicious Gossip (Üble Nachrede)

“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”).

“Malicious gossip” refers to the spoken word or gestures in their traditional form. Such malicious gossip may, for example, consist of the assertion or spreading of the rumour that the person in question is stealing money from their company. Should this work colleague spread the story in their office, this could have severe consequences for the victim of the malicious gossip. They could face disciplinary action or be seen as someone who cannot be trusted. If the person spreading the rumour can prove that there is some truth to the information they have heard, they can defend themselves in either case. Therefore, the person affected by malicious gossip should first and foremost check whether they can prove that the information is untrue.

Furthermore, malicious gossip also refers to the written word. Thus, such a statement in a newspaper, magazine, blog or article may constitute an offence.


Potential Penalties for Malicious Gossip under German Law

In its simple form, malicious is punishable either by a fine or imprisonment of up to one year. If, on the other hand, the offence was committed in public, at a meeting or by disseminating content, there is a qualification that, in addition to a fine, there is the possibility of an increase in the penalty range of imprisonment to up to two years.


Protection of Legitimate Interests (Impunity)

In the context of malicious gossip, this may also be justified by the perception of legitimate interests (§ 193 German Criminal Code) and thus lead to impunity. The statements made in the article on insult under § 185 German Criminal Code apply accordingly.

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Practice Group: German Media & Freedom of Speech Law

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