Defamation remains a criminal offence in Germany (punishable with imprisonment).
The German Criminal Code recognises three types of defamation offence: insult (Beleidigung), defamation (üble Nachrede) and intentional malicious defamation (Verleumdung).
Defamation (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 “.
Slander (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
Provisions on the books.
Under Art. 188 of the German Criminal Code, defaming “a person involved in the popular political life” publically or via the media, in a way that “may make [the person’s] public activities substantially more difficult” is a criminal offence. The punishment 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
Provisions on the books.
Defaming 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 or her profession and suspend certain of his or 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
Provisions on the books.
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 punishment is a or imprisonment for up to three years.
The maximum punishment 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 or her profession and suspend the offender’s civil rights.
Furthermore, Art. 90b of the Criminal Code prohibits defaming 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 punishment 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
Provisions on the books.
Insult to foreign officials (Art. 103): Insulting a foreign head of state, or insult 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
Provisions on the books.
Additionally, 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
Provisions on the books.
Provisions on the books.
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.
Other Relevant Criminal Offences
Art. 130 of the German Criminal Code prohibits “insulting, maliciously maligning, or defaming segments of the population” in a manner capable of disturbing the public peace. The punishment is imprisonment from three months to five year.
Under Arts. 374-376 of the German , prosecutors will only consider defamation cases upon a request by the offended party (Antragsdelikt). Defamation, slander, and insult are considered private criminal offences (Privatklagedelikt), which means that, generally speaking, prosecutors will turn down the request for prosecution unless a public interest exists. The offended party is then responsible for privately bringing the case before a judge if he or she wishes to proceed with the criminal claim. An exception exists when the offended party belongs to a group “persecuted … under the National Socialist or other authoritarian regime” in virtue of this persecution, in which case no request is required and prosecution can occur ex officio, unless the offended party objects.
For offences to honour committed through the press, a limitations period of one year applies
Statistics on Application
The following are 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.
Germany does not have a specific civil defamation law. Civil liability for defamation in Germany derives from Art. 823 of the , which states that “whosoever intentionally or with negligence” violates another’s rights must restore the damage done, and §1004, which may be used to order the removal of content or forbid its further publication. Civil claims may be pursued concurrently with criminal claims or separately.
There are no caps on non-pecuniary damages for defamation in German law.
Although not actually provided for in law, “exemplary damages” designed to prevent future unlawful actions by the defendant have been awarded by German courts in the past. Such damages are considered only applicable in egregious cases, according to .
None specified. In civil cases, courts will seek to balance the constitutional rights to free expression and reputation. For more information, see under “Media Cases and Case Law”.
Media Cases and Case Law
Key case law principles
German jurisprudence regarding defamation falls generally in line with European standards. For German courts, the in assessing the admissibility of a particular expression is, in addition to truth, whether or not the expression can be seen to contribute to the formation of opinion (Meinungsbildung) on a socially or publicly relevant matter. If this can be shown, the legitimate-interest defence (Wahrnehmung berechtigter Interessen, Criminal Code §193) can be invoked. Whether or not a statement meets the opinion-formation test, which applies to expressions of both fact and value, is subject to a holistic examination of the circumstances, but does not depend upon the intention of the author of the statement.
Separation of fact and value
The Constitutional Court (Bundesverfassungsgericht) has affirmed that assertions of fact (Tatsachenbehauptungen) and value judgments (Werturteile) must be treated distinctly. In a 2012 decision, the Court the following definition: “Assertions of fact are characterised by an objective relationship between the expression and reality and can be examined as to their truthfulness. Opinions in contrast to assertions of fact are defined by an element of point of view, estimation, or opinion.”
In general, the Court has considered that whether a particular statement should be understood as an assertion of fact or a value judgment depends upon the overall context. For example, in 2012 the Court reversed a civil defamation ruling by the Higher Regional Court of Munich in part because the latter had failed to properly differentiate between fact and value. The Munich court had ordered a small magazine to pay damages to a larger magazine, Focus, for insinuating that Focus had called dentists and solicited payment in order to appear on Focus’s list of the top 115 dental implant surgeons in Germany. The Constitutional Court, however, that the Munich court had erroneously focused on an “isolated” question of fact – who had called dentists’ offices and why they had done so – instead of considering the insinuation in its context as part of overall criticism of the composition of the list.
Limits of true speech
The Constitutional Court does not recognise an absolute defence of truth for factual assertions. The Court has : “[T]the protection of free expression for assertions of fact ends when the assertion cannot contribute anything to the constitutional criterion of opinion formation.” Insofar as this criterion is seen as fulfilled, “true statements must as a rule be accepted, even when they are unfavourable to those involved”, while untrue or unproven statements are assumed to be unlawful. (See, however, comments on the defence of justification below). For the press, this qualified defence of truth would most likely apply to the revelation of a purely private fact that harms the honour or dignity of a person.
Additionally, in German jurisprudence it is also possible for true statements to be classified, based on their form, as “formal insult” (see Criminal Code §192) and therefore give rise to criminal or civil liability if the specific expressions used are deemed unnecessarily insulting. This is the case even if the content itself concerns a question of public interest. However, the higher German courts have generally restricted this possibility.
For example, in 2006 the Federal Court of Justice (Bundesgerichtshof, FCJ) reversed a civil defamation verdict against the editor of the online edition of the daily Frankfurter Allgemeine Zeitung over an article in which the author referred to Bettina Röhl, daughter of Red Army Faction co-founder Ulrike Meinhof, as a “terrorist’s daughter” (Terroristentochter).
Here, the FCJ agreed with the lower courts’ classification of the expression as a statement of fact as opposed to a value judgment, the veracity of which was not in question: Meinhof was convicted of terrorist offences and Röhl was her daughter. The issue, rather, “was whether the chosen formulation as such was acceptable”. The FCJ agreed that the journalist’s language was “harsh and polemic” and caused a “serious personal impact” on Röhl. However, the FCJ noted that the article, which focused on the clients of a particular Berlin hair salon, involved a matter of public interest – in which case, the court noted, there is always a “presumption in favour of a statement’s acceptability” – and that Röhl herself had inserted her relationship to her mother into the public sphere through “numerous publications”. Thus the FCJ that the formulation was admissible under the circumstances.
Defence of reasonable publication
Furthermore, German constitutional jurisprudence protects the right of journalists to report on suspected facts (Verdachtsberichterstattung) that may harm a person’s honour as long as the report is done in defence of legitimate interests (i.e. opinion formation). In order to benefit from this defence, journalists must prove that the existence of several criteria, summarised in a :
- The report must touch on a question of public interest
- The report must be supported by at least a minimum degree of conclusive facts
- The report must be fair and balanced with respect to its subject, and it must not create the impression that the question of the subject’s guilt is a settled matter of fact (this generally also demands the inclusion of any exonerating circumstances); and
- The report must include or have allowed to include the account or point of view of the subject
For statements believed to be true and statements suspected to be true, the journalist in question is also required to exercise of a duty of care in checking the facts; in general, the more serious the allegation, the higher the threshold of care courts will demand.
Limits of free expression (criticism)
As in the case of true speech (assertions of fact), the Constitutional Court has consistently that value judgments (criticism and opinion) are protected by freedom of expression “if and insofar as they contribute to the formation of opinion” on a socially or publicly relevant matter. Specifically the Court has established the following principles:
- “Because of the fundamental importance of freedom of opinion for the democratic order, an assumption in of free speech is appropriate when concerning a contribution to the intellectual debate on a publicly relevant question.”
- “In a public debate, and particularly in political battle of opinions, criticism that is expressed in an exaggerated or polemic manner must be accepted, as otherwise there arises the danger of paralysis in or constriction of the process of opinion building.”
- In contrast, however, the protection of honour is given greater weight the less an expression can be seen as contributing to a publicly relevant question and more as having been made “in the private sphere in order to pursue personal ends”.
The limits of acceptable criticism are drawn at the level of “formal insult” or what is known as Schmähkritik. In the jurisprudence of the Court, Schmähkritik in general refers to speech that is no longer principally related to the debate or any factual matter at hand, but is instead essentially intended to defame a particular individual. However, the Court has “narrowly defined” what constitutes Schmähkritik, which goes above and beyond merely exaggerated or polemic speech such that “even excessive or abusive criticism does not in and of itself constitute Schmähkritik”. Here, again, the Court a public/private distinction: “[Schmähkritik] is only exceptionally applicable to matters of clear public interest, and it is rather in the private realm that [its use is] restricted.”
In one notable application of this principle, the Court in 2009 overturned the criminal insult conviction of Michael Naumann, publisher of daily Die Zeit. Lower courts had fined Naumann €9,000 for calling the Berlin public prosecutor “crazed” during a 2003 talk show appearance.
In a 2012 civil case, the Court overturned two lower court verdicts holding a lawyer (“A”) guilty of defamation for referring to another lawyer (“B”) in an Internet forum as a “right-wing extremist” after the latter had previously publicly remarked that, among other things, Germany’s post-Nazi-era Basic Law was of “transitory character” and merely an “instrument of the victors”. The Court found that both lower courts had erred in judgment: the first by classifying A’s statement as an assertion of fact instead of an opinion, and the second (appeals court) by classifying A’s statement as Schmähkritik. Here the Court : “[B] made a public contribution to a discussion. In such case a true discussion allowing for the formation of public opinion must be possible. Whosoever has sparked a public discussion with a particular point of view must in principle accept a sharp reaction, even if his reputation is thereby affected.”
Meaning of a particular statement
The Court has held that: “Relevant to the meaning of an expression is neither the subjective intention of the person expressing himself or the subjective understanding of the person whom the expression concerns, but rather the sense of the expression according to the understanding of an unprejudiced and rational public”. Although the actual phrasing of the expression may be taken into account, far more is the “linguistic context” and the “recognisable accompanying circumstances” under which the expression was made. In the Court’s , if there is more than one objective interpretation of an expression, then any interpretations that would exonerate the person accused of defamation must be given precedence.
Examples of recent application involving the media
In 2012, the Dresden Regional Court acquitted two journalists of criminal defamation and slander, overturning a 2010 conviction by a lower court 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 “”, 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 (“”), 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 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
No known relevant changes.
Notes and Acknowledgements
Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)
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 ipi[at]freemedia.at.
Information on Germany was last updated in January 2015.