The End of Free Speech in Germany

[Commodore]

Just found this article and I find it truly sad:

https://www.yahoo.com/news/germany-mulling-turkish-demand-prosecute-comic-101752732.html

BERLIN (AP) — Germany is considering a request from Turkey to prosecute a TV comedian who wrote a crude poem about the Turkish president, Chancellor Angela Merkel's spokesman said Monday.

The request poses an awkward choice for the German leader as she relies on Turkey to reduce the influx of migrants to Europe.

Turkey sent a diplomatic note making "a formal request for criminal prosecution" of comedian Jan Boehmermann, Merkel spokesman Steffen Seibert said.

Boehmermann read the poem on ZDF television two weeks ago to illustrate what he said wouldn't be allowed in Germany, contrasting it with another channel's satirical song that also poked fun at Turkish President Recep Tayyip Erdogan. Germany's ambassador was summoned to the foreign ministry in Ankara last month to hear a protest over that song.

Mainz prosecutors told the dpa news agency late Monday that Erdogan had also filed his own complaint accusing Boehmermann of slander, adding that it would be considered as part of the ongoing investigation.

While the German government defended the song as legitimate free speech, it has strongly distanced itself from the poem. Seibert has said that Merkel and Turkish Prime Minister Ahmet Davutoglu agreed the poem was "deliberately offensive."

So basically, Merkel is selling her people out in order to get "help" from Turkey to stop the influx of refugees from Syria. This is truly a sad day for freedom and human rights. I know no decision has actually been made to prosecute this comic, but the fact that the German government did not immediately reject Erdogan's outrageous demand speaks volumes about what their priorities are. Preserving their people's fundamental right to free speech clearly isn't one of them. Shame on you Merkel, and shame on any German politician or citizen that thinks prosecuting this comic is a good idea.

 

[cardgame]

Selling out to Erdogan of all people?

 

[GoodSarmatian]

Title is a bit overdramatic, but it is a really shameful state of affairs. Here's the song Erdogan complained about earlier (with english subtitles).

Link to video.

Erdogan complained to the German government about a song and demanded it be taken off the air and the intenet. At that time he was told "freedom of the press is non-negitionable". Böhmermann then pushed the limits with his poem on purpose to demonstrate that Germany still has some very stupid laws when it comes to insulting people. In this case it's a law that prohibits the insult of foreign heads of state and is nicknamed the "Shah-Paragraph" because in the sixties the Shah demanded that the German government prosecutes students who held up a sign saying "Persia is a concentration camp" during a protest. Ultimately the Shah was convinced to drop the matter, but I doubt Erdogan will be that reasonable.
There's a good chance Böhmermann won't be punished since the intent was plausibly to make a point about German free speech laws rather than insulting Vladimir Tayip Erdodrumpf. That the German government hasn't dismissed the matter already should be a cause of national embarrassment for some time, although I have to say I realy didn't except any better from Merkel.

Here's the poem in English translated by me.

Spoiler :

Perverse, lousy and zoophile/Recep Fritzl Priklopil
Who kicks Kurds and beats Christians/while always watching child porn
Oh Recep, youre no friend of humans/essentially the Turkish Charles Manson

Full of perfidy, full of naked fear/where does it come from ? A small penis* ?
An inferiority complex ? Instead of real love, goat sex ?
You're lonely and deeply careworn/your state so bleak and unmodern

The European Union/openly speaks of "the whoreson"
who closes down newspaper offices/and so ruins his chance to join
Ey, your mom's so fat/the doctor reports: blood type Mett.

Your Recep Tayyip Böhmermann

* It doesn't say penis, but forum rules...

Selling out to Erdogan of all people?

Now that Germany's wage slave quota is full, we need every help we can get to keep the refugees out.

 

[ori]

just to drop the criminal code in question here:

Section 103
Defamation of organs and representatives of foreign states

(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

However this is subject to:

Section 104a
Conditions for prosecution

Offences under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offence, a request to prosecute by the foreign government exists, and the Federal Government authorises the prosecution.

while they are waffling and saying they need to study this a bit further I do not see any way in which the government will authorize any prosecution going forward - its politically impossible to defend and would haunt them for a long while and they know it.

 

[Kyriakos]

Hm...

Erdo is crap, obviously. In that light, the song is funny (in a german way, ie mostly very offensive and not funny edit: obviously mean the goat song, not the one in post #3; that one is just normal satire and rather underwhelming at that )

In general, though, presenting such songs against foreign country leaders is not a good idea.

Still like it since it is about a megalomaniac dictator, yet in a more general case it is not a good idea to do this about foreign nations, or even just their leaders. We all recall how many problems the 'piigs' song caused

 

[Commodore]

while they are waffling and saying they need to study this a bit further I do not see any way in which the government will authorize any prosecution going forward - its politically impossible to defend and would haunt them for a long while and they know it.

Which is why the German government should have rejected the demand for prosecution immediately. Just merely considering prosecution or initiating an investigation has caused political damage to the German government. Treating this matter seriously creates an atmosphere of uncertainty. I mean, even if the German government doesn't prosecute here, what guarantees do the people have that they won't prosecute the next time something like this happens?

As for the particular law you cited: That, in my opinion, is an absolutely abhorrent law and should be repealed immediately. How can a nation say it is dedicated to freedom of speech and personal liberty then turn around and say its people aren't allowed to criticize or make jokes about foreign leaders. Especially when that law carries a penalty that is hugely disproportionate to the supposed offense.

EDIT: Not to mention, this law essentially gives foreign leaders some measure of power over German citizens and no sovereign government should allow foreign governments any authority over its citizens, unless those citizens are physically in that foreign nation.

 

[GoodSarmatian]

Fun fact: That law was introduced in 1953 and nobody has ever been prosecuted under it, however Der Spiegel was banned for two weeks in 1949 for insulting the Dutch royal family. That decision wasn't made by Germany.
If you see something messed up and completely anti-democratic in modern German law, there's always a high likelyhood it was put there by/under pressure from the Allies. I think it's about time to clear that garbage out of our legal codes.

 

[Camikaze]

If a law exists which allows for prosecutions of people for what they say, then the right to free speech is curtailed when the law is enacted, not when someone is prosecuted under the law. The prosecution is simply a recognition of the lack of a particular right in the first place, not an act operating to remove an existing right.

If, as GoodSarmatian points out, this law was enacted in 1953, then that's when the relevant curtailment of freedom of speech occurred. There is a legitimate question as to whether the law should remain on the books, but it's incorrect to bemoan the sudden end of free speech when, if this law actually ended it, it did so over 60 years ago.

It's worth noting that sedition laws prohibiting the excitement of disaffection against a foreign government are not exactly unusual. I'm not intimately familiar with Australia's current sedition laws, and I don't think they now deal with exciting disaffection against a foreign government (they may have up until 2005? in relation to Commonwealth countries), but such a law would certainly be regarded as supported by the Commonwealth's external affairs power (although it might face some other problems). Point being, it's long been recognised that governments have a legitimate reason to prevent their citizens from jeopardising the state's foreign affairs and/or security. How far that extends is a matter of legitimate debate.

Can anyone explain why Erdogan isn't just suing civilly? I'm assuming that's something that could be done in a German court? Australia's seminal free speech case involved a former NZ PM suing the ABC for defamation. Seems a somewhat comparable case.

 

[ori]

He also (as per some radio news I heard today) is suing himself. This being a criminal accusation also needs to go through an attorney general who will look at the claim, decide that Erdogan is a public figure and defamation claims won't go anywhere and decide to not press criminal charges. I would expect this to languish in some attorney general's office for a few months and the decision to not press charges to be buried in some one sentence press release at some point when no one is looking though. Civil charges could be pressed but would merely cost the Turkish government some money in a futile court case.

 

[Ryika]

Well, let's be fair here: What good is satire if you can't go to jail for it? It's just less funny comedy then. This law makes sure satire has an actual place in our society, if Böhmermann really gets punished - which I find to be unlikely - then all the rest of the German satire scene finally have something to rally against. I'm sure the show would be fantastic.

On a political level I actually love this case a lot, it's like Merkel is willingly stabbing herself in an attempt of political suicide. The perfect scenario to show how powerless she has become.

 

[Leoreth]

Well, let's be fair here: What good is satire if you can't go to jail for it?

I think not going to jail just because some politically paranoid despot demands it is ultimately the more triumphant outcome.

 

[Ryika]

I think not going to jail just because some politically paranoid despot demands it is ultimately the more triumphant outcome.

For Germany? Yeah. For Satire? Nope.

 

[Lexicus]

Bit of a silly binary here. This isn't 'the end of free speech in Germany,' it's a limit (a ridiculous limit to be clear) on free speech in Germany.

You might as well say that any limit whatever on free speech is 'the end of free speech,' in which case free speech has largely ended before it began (since it has never, AFAIK, been unlimited in scope anywhere).

 

[classical_hero]

What is the end of free speech is when the police are more concerned about people who protest the actions of the refugees than the actions of said refugees. Apparently words are worse than rape in Germany.

 

[ori]

Police around here is quite capable of dealing with both. Of course its not words vs rape - its more like arson and other types of severe property damage vs. sexual harrassment if you want to look at a similiar order of case numbers...

 

[warpus]

Germany has weird laws on the books under which it is illegal to insult people. Had a discussion about this elsewhere, it's pretty messed up.

It's been around for a while though, so if OP's claim is that this means that there is no more free speech in Germany, then OP has to logically conclude that there has never been free speech in Germany to begin with, as this law has been on the books for quite a while.

Most of the time nobody's going to care if you call your neighbour a buttlicker, apparently there is a provision in the law that stipulates that it's not a crime unless it becomes a public nuisance, or something like that. So basically, if you insult some random person, and that person decides to involve the authorities, no judge is going to give a crap. But if you insult a cop, a judge, somebody famous, etc. then that is stepping over the line, and you can get dragged in front of a judge and get slapped with a large fine.

Basically, from what some Germans told me, the distinction is that you can call your neighbour a buttlicker as long as it doesn't end up as a story in the paper, for all to read. So basically that is why the line is drawn at "celebrities, famous people, etc.".. Or if you insult a judge or a cop. For some reason. There is also a provision in there specifically about what happens when you insult a foreign state of head, there's bigger fines for that.. for some reason, again.

It's pretty stupid, but apparently there is no movement in Germany to change these laws. Nobody seems to care that they exist, so now the German people have to put up with comedians being charged for insulting people.

It's weird, most Germans I spoke to said: "Yeah, this doesn't affect me, I can insult random people on the street and I will probably not be charged, this law is almost never invoked".. But hey, here it is being invoked now! If this was happening in my country, I would be joining a political movement of some sort to overturn it. Maybe a couple comedians being thrown in jail is going to wake up some Germans to stand up for the right to swear at people.

 

[ori]

actually the thing is so far it was never invoked and even now its not going to be, Erdogan trying to have it invoked not withstanding. That is the reason why nobody so far has campaigned to get rid of it. Right now we hear from the SPD they would like to repeal the law now to avoid having the government make the decision not to invoke it. Its a stupid reason (they should just first decide and then repeal) but its where this is headed. Nobody has an interest in this law anymore and if it was tested now it would most likely be deemed unconstitutional in any case - the 1950s were quite a different time.those you talked to are quite mistaken

Edit: also there seems to be the assumption that in Germany you can easily get away with calling someone else names - unless they are a public figure or official. The reverse is true - its hard to have criminal charges of insulting someone ("Beleidigung") stick especially since the consitutional court has restricted any such charges quite a bit many times - but public figures are held to a higher standard than ordinary persons meaning its harder for them to be deemed insulted in the first place. Its just that some public figures or officials maybe more eager to press charges to begin with than some random person being called names.

 

[warpus]

Nice, that is not what Germans on reddit were telling me, but you seem to have a more indepth understanding of this law.

I was under the impression that it's very very difficult to change such a law. How long do you think it might take?

 

[Wastl]

Yeah, no, that's not how the law works...

As used in an example:
If you use the general comment that "soldiers are murderers", that is not something you can get punished for. If you direct that comment at a certain group of soldiers in your vicinity, with the clear intend of insulting them, then you can get punished for it.

What matters is the clear intend to hurt a person/group in such a way that you "demean his honour". There is no connection to a certain group of people (cops, judges, someone famous, etc.) nor does the act of insulting someone have to happen publically. What is the law actually exists for, is that you cannot just run around and treat other humans like garbage or accuse them of having committed a crime they didn't actually commit.

Insult is a so called "Antragsdelikt", meaning the person who was insulted has to ask the authorities to investigate the matter. There is only exception that actually exists: publically insulting a person or small group of people that was a victim of Nazi-Germany or any other despotic regime will be automatically investigated without a request by the victim, provided the insulted person is part of the German population and the insult was about the persecution of the victim by the Nazis or other despotic regime. With the provision that there will be no investigation if the victim objects to it.


The law about insulting foreign officials, just like the law about insulting the German president, is actually something different.

 

[ori]

I was under the impression that it's very very difficult to change such a law. How long do you think it might take?

If they want and no one objects (hard to see why someone would - in the legislature that is) they can easily repeal the law within the next one or two months. They merely need to have the government or one of the parties in the legislature propose a law striking section 103 of the criminal code then go through the motions of reading it once, moving it into and then out of commitee and having the second and third reading with final passage (plus not have the Bundesrat object which would delay passage or the president object on constitutional grounds) - in some cases regarding the EU financial crisis these things did take less than a fortnight overall (with some parliamentary maneuvering beforehand) - with something as uncontroversial as this its easy to see it enacted fast.