The End of Free Speech in Germany

[warpus]

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.

Aren't libel laws there to deal with situations like that? Or are there no libel laws in Germany?

 

[ori]

well we also have libel or defamation - which is "Verleumdung" or "Üble Nachrede" in German - insulting someone ("Beleidigung") is something else. The same section governing freedom of speech in our constitution also defines personal integrity as a right and from their stems the problem that both rights may clash - the constitutional court has mostly held that if in doubt freedom of speech should prevail but that insults for no other reason as the intent to insult can be prosecuted under criminal law.

note section 188 which is another one of those that need to go but since no one is ever prosecuted because of it its hard to muster opposition (plus this one would actually be in the interests of members of parliament to keep if push comes to shove...

CHAPTER FOURTEEN
LIBEL AND SLANDER

Section 185
Insult

An insult shall be punished with imprisonment not exceeding one year or a fine and, if the insult is committed by means of an assault, with imprisonment not exceeding two years or a fine.

Section 186
Defamation

Whosoever asserts or disseminates a fact related to another person which may defame him or negatively affect public opinion about him, shall, unless this fact can be proven to be true, be liable to imprisonment not exceeding one year or a fine and, if the offence was committed publicly or through the dissemination of written materials (section 11(3)), to imprisonment not exceeding two years or a fine.

Section 187
Intentional defamation

Whosoever intentionally and knowingly asserts or disseminates an untrue fact related to another person, which may defame him or negatively affect public opinion about him or endanger his creditworthiness shall be liable to imprisonment not exceeding two years or a fine, and, if the act was committed publicly, in a meeting or through dissemination of written materials (section 11(3)) to imprisonment not exceeding five years or a fine.

Section 188
Defamation of persons in the political arena

(1) If an offence of defamation (section 186) is committed publicly, in a meeting or through dissemination of written materials (section 11(3)) against a person involved in the popular political life based on the position of that person in public life, and if the offence may make his public activities substantially more difficult the penalty shall be imprisonment from three months to five years.

(2) An intentional defamation (section 187) under the same conditions shall entail imprisonment from six months to five years.



Section 189
Violating the memory of the dead

Whosoever defames the memory of a deceased person shall be liable to imprisonment not exceeding two years or a fine.


Section 190
Proof of truth by criminal judgment

If the asserted or disseminated fact is an offence proof of the truth thereof shall be provided if a final conviction for the act has been entered against the person insulted. Proof of truth is excluded if the insulted person had been acquitted by final judgment before the assertion or dissemination.


Section 191
(repealed)

Section 192
Insult despite proof of truth

Proof of truth of the asserted or disseminated fact shall not exclude punishment under section 185 if the insult results from the form of the assertion or dissemination or the circumstances under which it was made.


Section 193
Fair comment; defence

Critical opinions about scientific, artistic or commercial achievements, utterances made in order to exercise or protect rights or to safeguard legitimate interests, as well as remonstrations and reprimands by superiors to their subordinates, official reports or judgments by a civil servant, and similar cases shall only entail liability to the extent that the existence of an insult results from the form of the utterance of the circumstances under which it was made.


Section 194
Request to prosecute

(1) An insult may only be prosecuted upon request. If the act was committed through dissemination of written materials (section 11(3)) or making them publicly accessible in a meeting or through a presentation by broadcast a request is not required if the victim was persecuted as a member of a group under the National Socialist or another authoritarian regime, if this group is a part of the population and the insult is connected to this persecution. The offence may not be prosecuted ex officio if the victim objects. The objection may not be withdrawn. If the victim dies the right to file a request and the right to object shall pass to the relatives indicated in section 77(2).

(2) If the memory of a deceased person has been defamed the relatives indicated in section 77(2) are entitled to file a request. If the act was committed through dissemination of written materials (section 11(3)) or making them publicly accessible in a meeting or through a presentation by broadcast a request is not required if the deceased lost his life under the National Socialist or another authoritarian regime and the insult is connected to this persecution. The offence may not be prosecuted ex officio if the person entitled to file the request objects. The objection may not be withdrawn.

(3) If the insult was committed against a public official, a person entrusted with special public service functions or a soldier of the Armed Forces while in the execution of his duties or in relation to his duties, it may be prosecuted upon the request of his superior. If the offence is directed against a public authority or other agency that performs duties of public administration it may be prosecuted upon the request of the head of the public authority or the head of the supervisory authority. This applies mutatis mutandis to public officials and public authorities of churches and other religious associations under public law.

(4) If the offence is directed against a legislative body of the Federation or a state or another political body within the Federal Republic of Germany it may be prosecuted only upon the authorisation of that body.

Sections 195 to 198
(repealed)

Section 199
Mutual insults

If an insult is immediately reciprocated the court may order a discharge for one or both of the offenders.

Section 200
Publication of the conviction

(1) If the insult was committed publicly or through dissemination of written materials (section 11(3)) and if a penalty is imposed the court shall, upon application of the victim or a person otherwise entitled to file a request, order that the conviction be publicly announced upon request.

(2) The manner of publication shall be indicated in the judgment. If the insult was committed through publication in a newspaper or magazine the publication shall also be included in a newspaper or magazine, if possible in the same one which contained the insult; this shall apply mutatis mutandis if the insult was committed through publication by broadcast.

this is the libel and slander chapter as it stands currently.

 

[warpus]

There is a lot of outdated stuff there too, it seems, such as this:

Whosoever defames the memory of a deceased person shall be liable to imprisonment not exceeding two years or a fine.

 

[ls612]

What is the state of public opinion in Germany regarding this issue? I've read about it in the newspaper but I haven't seen anything about whether these sorts of laws have support in Germany.

 

[FriendlyFire]

We all recall how many problems the 'piigs' horst wessel song caused

Fixed.
Lets not awaken the sleeping German Beast please.

In an ironic twist, Böhmermann — who devoted another segment of the same show in which the poem was broadcast to attacking xenophobic Germans who harass Syrian refugees in the comic song “Be Deutsch!” — has also been supported, on nationalist grounds, by right-wing tabloids that stoke anti-Muslim and anti-Turkish sentiment.

 

[GoodSarmatian]

Our benevolent government has decided that Böhmermann will be prosecuted. I feel like rioting now, or at least some light vandalism. Maybe I'll wait until night and defecate on the doorstep of the nearest CDU office.

The good news is that the government has also decided to get rid of this ridiculous law by 2018.
Why 2018 ? Probably because it's Germany and paperwork takes time.

 

[Kyriakos]

I suppose he cannot be convicted (?) so is he going to be prosecuted due to throwing Erdogan a bone now?

Anyway, Yurop stronk.

 

[Arwon]

Our benevolent government has decided that Böhmermann will be prosecuted. I feel like rioting now, or at least some light vandalism. Maybe I'll wait until night and defecate on the doorstep of the nearest CDU office.

The good news is that the government has also decided to get rid of this ridiculous law by 2018.
Why 2018 ? Orobably because i's Germany and paperwork takes time.

Is it possible they think the prosecution will end in the law being invalidated or something?

 

[GoodSarmatian]

Is it possible they think the prosecution will end in the law being invalidated or something?

I think the German government -like everybody else- was just recently reminded that this law exists at all and everybody thinks it's stupid.

 

[warpus]

They obviously don't think it's stupid if they're actually going to use it to prosecute someone.

If I was German I would be organizing a mass insulting of all heads of state on the planet, but especially German and Turkish leaders.

 

[NovaKart]

I was surprised because Angela Merkel made some comments recently in support of freedom of expression. It's a real outrage they're going to prosecute someone for insulting the sultan.

 

[Mechanicalsalvation]

How about prosecuting the dead Charlie Hebdo workers posthumously? Plus all the people who ever wore that 'I am Charlie' T-shirts. We could have a great orgy of political correctness here in EU!

 

[ls612]

I'm saddened by Germany's decision here. Free Speech and Expression is one of the most important elements of a functional democracy and Germany seems to want to trample all over that. Hopefully this will generate public outcry and change some laws.

 

[NovaKart]

There's some speculation that this was intentionally done to expose this law which it seems many people in Germany didn't know about. It could lead to the law being abolished.

 

[Ryika]

Well, her decision isn't really as bad as it sounds. Sucks for Böhmermann, but in her statement she basically says that the court is supposed to decide about this case, not the Federal Government and that's the reason why they forward it, not because they think he's guilty of anything.

She also says (near the end) that the government thinks that paragraph 103 is outdated and that they'll draft a law to repeal it in 2018.

Overall it seems obvious to me that she's signalboosting to keep Erdogan calm but knows that in the end nothing will happen anyway. The situation will already have calmed down when the court comes to the conclusion that there's nothing to convict him for and that's it. The decision of a coward, but that's Merkel as we know her.

 

[GoodSarmatian]

Right now it looks like it's much more Merkel's decision than Germany's decision. It's now being critisized by every other party, including the SPD which is part of the government coalition. The only ones supporting it are from Merkel's CDU, and their only argument seems to be "rule of law", even though this particular law is specifically designed to allow for selective enforcement.

I hope this farce will at least damage the reputation of Merkel and the CDU and cost them on the next election.


Edit:

Well, in her statement she basically says that the court is supposed to decide about this case, not the Federal Government.

And the government is supposed to decide if this case goes to court in the first place. And she decided.

 

[Agent327]

I'm not sure what other decision Merkel could have taken here. Seeing as the 'accused' is a comedian I wouldn't expect too much in ways of prosecution. If Erdogan wants to proceed with this silliness, by all means let him. It can only end in embarassment.

 

[Ryika]

And the government is supposed to decide if this case goes to court in the first place. And she decided.

Yeah, like I said... it's the decision of a coward.

But it's not like anyone is endorsing the law.

 

[Agent327]

I don't think you quite understand the legal and/or political delicacies. But if Mr Erdogan is intent on looking like a fool, why would the chancellor of Germany stand in his way? It's not the chancellor's fault the supreme leader of Turkey doesn't appreciate satire. The man is responsible for labeling reporters as terrorists, for crying out loud.

At any rate, the law in question is scheduled to be abolished.

 

[innonimatu]

I don't think you quite understand the legal and/or political delicacies. But if Mr Erdogan is intent on looking like a fool, why would the chancellor of Germany stand in his way? It's not the chancellor's fault the supreme leader of Turkey doesn't appreciate satire. The man is responsible for labeling reporters as terrorists, for crying out loud.

It most definitely is the chancellor's fault that the Fourth Reich the EU paid a big tribute bribe to the Sultan's government and has been proclaiming him a dear partner.

It is also her fault that this comedian is being prosecuted, as the law specifically placed the power to allow or deny such prosecution on her hands. She was literally personally responsible on this choice.