Defamation remains a criminal offence in Germany.
The German Criminal Code provides the following three types of defamation-related offences:
Insult (Criminal Code Art. 185) is punishable by up to one year in prison (two if committed “by means of an assault”) or a fine .
Defamation (Criminal Code Art. 186) is defined as assert[ing] or disseminat[ing] a fact related to another person which may defame him or negatively affect public opinion about him”. It is punished with a fine or imprisonment for up to one year. A sentence of imprisonment for up to two years can be imposed if the act is “committed publicly or through the dissemination of written materials .
Slander (Criminal Code Art. 187) consists of a defamatory statement that the speaker knows to be false and that is aimed at damaging a person’s reputation “or endanger[ing] his creditworthiness”. The punishment is a fine or imprisonment for up to two years. A sentence of imprisonment for up to five years can be imposed if the act is committed publicly or via media.
Criminal Defamation of Public Officials
Under Art. 188 of the German Criminal Code, defaming “a person involved in the popular political life” publicly or via the media, in a way that “may make [the person’s] public activities substantially more difficult” is a criminal offence. The penalty is imprisonment for three months to five years. Slander under the same conditions can result in six months to five years behind bars.
Criminal Defamation of the Head of State
Disparaging the German president publicly or through the media is a criminal offence under Art. 90 of the German Criminal Code. It carries a potential sentence of three months to five years in prison. The punishment may be mitigated in less serious cases, but the minimum punishment is increased to six months in prison if the defamation was an intentional act and was aimed at harming the president’s reputation or “intentionally supports efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles”.
In addition, a court may, at its own discretion, forbid the offender from practicing his/her profession and suspend certain of his/her civil rights, including the ability to hold public office, to vote and be elected in public elections (Art. 92a).
Criminal Defamation of the State and its Symbols
Insulting or maliciously expressing contempt toward Germany or one of its states or its constitutional order; or toward the colours, flag, coat of arms of Germany or of a German state is a criminal offence under Art. 90a of the German Criminal Code. The penalty is a fine or imprisonment for up to three years.
The maximum penalty increases to five years in prison “if the offender by the act intentionally supports efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles”. In addition, in either case the court may, at its own discretion, forbid the offender from practicing his/her profession and suspend the offender’s civil rights.
Furthermore, Art. 90b of the Criminal Code prohibits disparaging the constitutional organs of the German state (the Bundesrat (federal council), the Bundestag (Federal Parliament), the federal government and the federal constitutional court) or similar organs of a federal state “in a manner detrimental to the respect for the state” which “thereby intentionally supports efforts against the continued existence of [Germany] or its constitutional principles”. The penalty is imprisonment from three months to five years and, at the court’s discretion, the possible suspension of civil rights and the right to practice one’s profession.
Criminal Defamation of Foreign Heads of State
Insult to foreign officials (Criminal Code Art. 103): Covers insulting a foreign head of state, or a member of a foreign government in Germany in official capacity, or the accredited head of a foreign diplomatic mission in Germany. The penalty is up to three years in prison or a fine. In the case of slander, the penalty is increased to three months to five years in prison.
Criminal Defamation of Foreign States and Symbols
Insult “by mischief” toward a foreign flag or a foreign symbol legally displayed in Germany is a criminal offence under Art. 104 of the Criminal Code. It is punished with a fine or imprisonment for up to two years.
Criminal Defamation of the Deceased
Disparaging the “memory of a deceased person” is a criminal offence under Art. 189 of the German Criminal Code. It is punished with a fine or imprisonment for up to two years.
Art. 166 of the German Criminal Code prohibits defaming, publicly or via the media, the “religion or ideology of others” (Beschimpfung den Inhalt des religiösen oder weltanschaulichen Bekenntnisses) or “a church or other religious or ideological association within Germany, or their institutions or customs” in a manner “that is capable of disturbing the public peace”. The punishment is a fine or imprisonment for up to three years.
The following are official data on criminal convictions for the year 2013 from the German Statistics Office (Statistisches Bundesamt).
• For Art. 185 (insult), there were 26,757 criminal cases adjudicated, leading to 21,454 convictions, in turn resulting in 363 unconditional prison sentences, 701 suspended prison sentences, and 20,390 criminal fines.
• For Art. 186 (defamation), there were 460 criminal cases adjudicated, leading to 267 convictions, in turn resulting in 2 unconditional prison sentences, 7 suspended prison sentences, and 258 criminal fines.
• For Art. 187 (slander), there were 417 criminal cases adjudicated, leading to 242 convictions, in turn resulting in 4 unconditional prison sentences, 10 suspended prison sentences, and 228 criminal fines.
• For Art. 188 (defaming a person involved in the popular political life), there were 6 criminal cases adjudicated, leading to 0 convictions.
• For Art. 189 (defamation of the deceased), there were 8 criminal cases adjudicated, leading to 3 convictions, in turn resulting in 1 unconditional prison sentence and 2 criminal fines.
• For Art. 90 (defamation of the President), there were 0 criminal cases adjudicated.
• For Art. 90a (defamation of the State and its symbols), there were 10 criminal cases adjudicated, leading to 8 convictions, in turn resulting in 8 criminal fines.
• For Art. 90b (defamation of the constitutional organs of the State), there was 1 criminal case adjudicated, which did not result in a conviction.
• For Arts. 103-104 (defamation of foreign officials and foreign states and their symbols), there were two criminal cases adjudicated, leading to 0 convictions.
• For Art. 166 (blasphemy), there were 25 criminal cases adjudicated, leading to 12 convictions, in turn resulting in 1 suspended prison sentence and 11 criminal fines.
Criminal Defamation and Media
Insult to foreign heads of state
In April 2016 the Turkish government requested that the German government allow prosecution of satirical television present Jan Böhmermann under Criminal Code Art. 103 over a vulgar poem Böhmermann read on television ridiculing Turkish President. On 15 April 2016, German Chancellor Angela Merkel announced that she had approved the Turkish government’s request.
On 4 October 2016, prosecutors in Mainz announced that the charges against Böhmermann would be dropped as the investigation could not show with the necessary degree of certainty that a crime had been committed. Prosecutors also stated that the poem was protected by artistic freedom, noting: “The fact that a work of art is used to express a certain opinion does not rob it of its quality as art ”.
Art. 103 has been applied on a limited number of occasions in the past, according to reports. In 1977, for example, a court in North Rhine-Westphalia delivered a conviction with regards to a poster held in front of the Chilean Embassy in Bonn during the time of the Pinochet dictatorship with the words “gang of murderers” that had offended the Chilean ambassador .
In 2007, a Swiss citizen living in Bavaria was convicted of insulting Swiss President Micheline Calmy-Rey and sentenced to pay a criminal fine. The prosecution was requested by the Swiss Federal Police .
Insult to head of state
Prosecutions for defamation of the German president are rare, but not unheard of in modern times. The permission of the president is required for such prosecutions to take place. In 2011, President Christian Wulff granted permission for the prosecution of a blogger over an – apparently photoshopped – image that purported to show the president’s wife making a Nazi gesture. Wulff eventually withdrew the permission. Between 1990 and 2004, for instance, permission for prosecution was granted just twice, according to researchers.
In 2012, the Dresden Regional Court acquitted two journalists of criminal defamation and slander, overturning a 2010 conviction by a lower court ordering the journalists to pay fines of €6,000 each . The case was brought in relation to two articles, which appeared in 2008 in the daily Zeit and the newsmagazine Der Spiegel, investigating alleged links between former high-ranking judicial officials (judges and prosecutors) in the state of Saxony and a brothel. The brothel was closed and its owner sentenced to prison in 1993 for forcibly employing underage girls. In 2000, police began an investigation into links between political figures and the brothel, a scandal that went public in 2007 and was known as the Sachsensumpf (Saxony Swamp). The two journalists, Thomas Datt and Arndt Ginzel, based their stories largely on interviews with former prostitutes from the brothel, who also claimed to have identified the officials to the police during the 1993 investigation. The journalists also focused in particular on the claim that although one of the prostitutes had positively identified a judge to police in 2000, the identification was never entered into evidence.
In the Zeit article “Early Release”, Datt and Ginzel presented information to support the prostitute’s claim and asked rhetorically whether the two investigating officers were under internal pressure to protect the judge. The officers later said they did not feel offended by the article, but the respective police commissioner sought defamation charges anyway, and the lower court judge agreed that the rhetorical question contained the “the assertion of a fact damaging the honour” of the officers. The Dresden Regional Court overturned this ruling, finding that the question raised by the journalists was sufficiently grounded in fact.
The Regional Court also rejected the criminal charges of defamation filed by one of the judges implicated in the Spiegel article “Dirty Laundry”, affirming that the story concerned a matter of public interest and that the journalists had sufficiently fulfilled the conditions for reporting suspected facts under German constitutional jurisprudence (see above). The Court affirmed that according to constitutional jurisprudence, “an honour-offending media report can also be allowed if it is later proven to be untrue even if already at the moment of publishing there remain doubts about the reliability of the material used”.
Recent Legal Changes
In January 2017, the German government announced that it would present a bill to Parliament that would repeal Criminal Code Art. 103 (insult to foreign officials). Under this bill, the repeal would take effect on 1 January 2018.
Notes and Acknowledgements
Information for Germany was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE).
A fully footnoted version of this entry is available in the OSCE study. This entry was last updated in March 2017.
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.