Rumours as well as the targeted spreading of untruths with the aim of damaging a person’s reputation are not only an enormously stressful experience for those affected. If they go unchallenged, such attacks can also have a lasting impact on a person’s professional career and private life. However, it is not always easy to determine whether a statement is insulting, defamatory or even slanderous.
Even if Section 186 of the German Criminal Code (StGB) names a rather simple basic formula for defamation, this fact should not obscure the fact that this criminal offence consists of several, inherently complex elements. Due to the constantly evolving case law, a number of so-called “unwritten” elements of the offence must be taken into account. Thus, a sound knowledge of substantive criminal law is regularly necessary in order to be able to correctly assess the individual case.
The law firm Schlun & Elseven offers comprehensive legal support to victims of defamation offences. Whether out of court or in the context of a secondary or private action – our lawyers are committed to representing you in order to restore your good reputation and, if necessary, to enforce claims for compensation for pain and suffering and damages.
For persons who have been confronted with the accusation of a defamation offence, we offer a defence that is both competent and committed. With excellent expertise and many years of experience, our legal team is ready to defend your rights as an accused person and to ensure the best possible outcome of the situation.
Section 186 StGB: The offence of malicious gossip
“Whoever asserts or disseminates a fact about another person which is suited to 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, in a meeting or by disseminating content (section 11 (3)), a penalty of imprisonment for a term not exceeding two years or a fine.”
While insult primarily covers personal value judgements in the form of derogatory and contemptuous opinions, the accusation of defamation is limited exclusively to defamatory statements. These must be asserted (one’s own conviction) or disseminated (passing on knowledge of others). In contrast to defamation, which involves the assertion of “untrue facts” although the person “knows better”, defamation does not require that the person knows the untruth. Rather, it is sufficient that it involves the assertion or dissemination of information that the person cannot prove is true, but does not necessarily know for certain is false. If, 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 its traditional form, “malicious gossip” refers to the spoken word. However, publications (statements in a newspaper, magazine, blog or article), but also gestures can also constitute the offence. Defamation may, for example, consist of the allegation or spreading of the rumour that the person in question is embezzling sums of money in their company. If a colleague spreads the rumour in the office, this could have serious consequences for the victim of defamation. The person could face disciplinary action or be seen as someone who can no longer 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 the defamation should first and foremost check whether he or she can prove that the information is indeed untrue.
Potential Penalties
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.
Impunity in the case of legitimate interests
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.
Schlun & Elseven: Representation in the context of a private legal action
Irrespective of the possibility of criminal prosecution, every affected person has a claim for redress, which they can assert in private action (Section 374 of the German Code of Criminal Procedure).
In a private action, the affected person asserts their claims for reparation or herself. This means that he assumes the role of the plaintiff and, as such, must overcome numerous hurdles. The collection of evidence, the inclusion of witnesses, the inspection of files, and the compilation and presentation of arguments are very extensive and legally complex tasks. Even if a private person conducts the proceedings, the exact legal requirements apply to the arguments and evidence presented in criminal proceedings initiated by the public prosecutor’s office. Experienced legal advice is not only advisable but almost indispensable for successful proceedings in this way, considering the scope, complexity and legal difficulties that frequently arise. In such a case, our legal experts are there to support you.
Practice Group: German Criminal Law
Practice Group:
German Criminal Law
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