Online Defamation in Germany after the Künast court victory

Question

M F Whitaker asked a question which has since been closed because it asked for legal advice in a specific case. I believe that there are two questions of general interest in the closed posting. The second question is:

When do online insults become criminal defamation in Germany, and who initiates the prosecution?

The German constitutional court recently ruled on a technical issue regarding online defamation: Renate Künast can demand that social media companies provide information about certain users, which then allows her to proceed bringing a case against those individuals. While the ruling is not in a defamation case itself, but the findings of the constitutional court will become a guideline to other courts when they judge specific cases.

Can you summarize the current understanding of what is, and what isn't, defamation in a social media platform?

Answer 1

preface

As evidenced by the federal constitutional court’s recently published decision, law is no exact science. I cannot possibly “summarize the current understanding” because “one room, two lawyers, three opinions”. Nevertheless, let me show you a legal opinion addressing some issues and demonstrating the mechanics of a criminal case.

German law distinguishes between judgmental statements (“You’re a fat pig!”) and factual claims (“Baker X uses cockroaches for her bread.”). With respect to MFW’s original question, doing the latter toward third parties, like on a social media site, could qualify as defamation, a separate criminal offense. At any rate (and considering the question/comments), either of which is also an insult toward the person at hand (“You” or “Baker X”).

opinion

1. insult through action
   By responding to a post of Doctor Who with “Doctor Who is a fat pig.” on the social media website Foobar, OM might have committed the crime of insult, § 185 StGB.
   1. applicability of German penal law
      German penal law must be applicable at the time and place of the offense. Prosecution of insults is possible if the crime was committed in Germany, § 3 StGB. The place of commission is every place where OM acted, § 9 Ⅰ StGB. Acts are all activities ensuring the furtherance of the crime’s success. OM does not operate Foobar or its webservers, but necessarily composed and initiated publication of the post. However, due to the website being accessible globally via the world wide web, it is not automatically established OM was in Germany during his/her actions.
      Nevertheless, much like a person throwing a rock across the border, applicability of German penal law is still indicated via § 3 StGB if the purpose of the crime in question is to protect domestic interests. In the present case, § 185 intends to protect, among other things, the individual interest honor of people in Germany. Since DW regularly stays on German territory, her honor is at risk and must therefore be protected by the German state. Hence applicability of German penal law is found, regardless where OM specifically was at the time of her/his actions.
      (Further reading: BGHSt 46, 212)
   2. elements of the offense
      OM’s post must display all elements of an insult.
      1. physical elements of the offense
         1. object of the offense
            Given the context of replying to a post of DW, OM’s post unambiguously identifies DW as the subject of the potential insult. DW is a living person, thus a suitable holder of honor.
         2. act
            OM must have acted accordingly. An insult is the announcement of own contempt or disrespect toward someone else. The statement “Doctor Who is a fat pig.” compares DW with an animal. Animals are considered inferior to humans. In particular, the choice “pig” is associated in many cultures as an “unclean” animal. Furthermore, the adjective “fat” implies a certain immobility, another bad quality. Thus OM expressed contempt or disrespect of DW.
            However, since OM wrote his/her post in English it could be the case DW did not understand any of that. An insult “through” a translator or interpreter cannot be attributed to the perpetrator anymore. Therefore it is necessary, the addressed person has at least a basic understanding of the language and/or script used. In the present case, DW has an MD obtained in Germany. She is sufficiently capable of directly understanding the disrespectful contents at hand.
         3. factual attribution
            Moreover, the act can be attributed toward OM.
      2. mental elements of the offense
         Unless otherwise stated all crimes must be committed with intent, § 15 StGB. Intention is the wish to effect the physical elements of the offense knowing all circumstances of the crime. OM deliberately posted the insult, or at least was consciously accepting the risk to insult and therefore acted with criminal intent.
      3. intermediate conclusion
         By posting “Doctor Who is a fat pig.” on the social media website Foobar OM has committed the crime of an insult.
   3. unlawfulness
      The elements of the offense indicate unlawfulness, unless the offense was warranted.
      1. vindicatory consent
         Protection of honor as a disposable interest can be relinquished, yet in the present case DW did not expressly agree to being insulted, and the Terms of Service of Foobar DW agreed to actually forbid hate speech in general.
      2. presumed vindicatory consent
         Without express consent and DW agreeing to Foobar’s ToS, it could be the case DW’s honor was no interest warranting protection. DW’s post OM responded to might have been provocative or unethical, yet she did not give reason to believe that she did not care about her honor, e. g. by insulting someone else, and in particular not OM him‑/her‑self, § 199 StGB.
      3. protection of legitimate interests
         OM’s post could have been done to safeguard legitimate interests, § 193 StGB. Critical opinions about scientific, artistic or commercial achievements are allowed if an insult as a matter of form and content or the circumstances do not show the sole intent to insult. DW expressed an opinion in a public venue like Foobar certainly with the intent to initiate debate, yet OM’s post primarily shows disrespect toward DW, without expressing criticism to her post. Therefore OM’s post has not been done to safeguard legitimate interests.
      4. intermediate conclusion
         OM’s act was unlawful.
   4. guilt
      An unlawful act fulfilling all elements of the offense indicates guilt, thus OM is considered is guilty.
   5. sentence considerations
      Since the insult happened through dissemination of materials, the permissible sentence is up to two years of imprisonment or a fine. The court recognizes following considerations:
      • The brevity and ordinary nature of the insult.
      • OM’s rap sheet, queried on 2022‑02‑26, is empty.
      • OM and DW are not related.
      • OM has not apologized to DW.
   6. conclusion
      By posting “Doctor Who is a fat pig.” on the social media site Foobar OM is guilty of unlawfully insulting DW.
2. criminal prosecution requirements
   Prosecution of an insult is only possible if a criminal complaint was submitted, § 194 Ⅰ 1 StGB. When DW reported the offense to the Police of Lower Saxony on 2022‑01‑10, she initiated a provisional criminal complaint. As she is the subject of the insult, she is entitled to initiate such, § 77 Ⅰ StGB. The 3‑month-submission deadline was met, § 77b StGB.
3. criminal prosecution obstacles
   The statute of limitations grants a five-year limitation period, § 78 StGB, so there are no obstacles.
4. conclusion
   OM is sentenced to a fine of thirty daily units. Since OM refused to disclose their economic situation, an estimated monthly net income of three thousand euros is presumed, thus a daily unit amounts to one hundred euros.
   Considering OM’s guilt, § 46 Ⅰ 1 StGB, imprisonment, especially more than six months, § 47 Ⅰ StGB, was not indicated.

afterthought

• The “dissemination through materials” qualification is a recent addition, Federal Gazette 2021 Ⅰ page 441, article 1, number 6. It was meant to take effect on July 1, 2021 (article 10, subsection 1), but came into effect early on April 3, 2021, FG 2021 page 474. If you insulted someone on or before April 2, 2021, the maximum sentence is one year imprisonment or a fine, § 2 Ⅰ StGB.
• Considering this, I should probably double the fine. 30 daily units, give or take, was standard for a “normal” insult before the change.
• Maybe interesting, but the insulted does not need to “feel” insulted. Nevertheless, only the addressed person(s) can file a complaint, § 77 Ⅰ StGB.
• Initiating a criminal complaint could be unnecessary if you are “insulting” a public figure, § 188 StGB, if the DA thinks it’s of public interest, § 194 Ⅰ 3 StGB, or if the insult’s content refers to persecution of people in the Third Reich or similar regimes, § 194 Ⅰ 2 StGB.