Definition and Legal Classification of Defamation
Die Defamation is a criminal offense under German law that serves to protect personal honor. It involves the unlawful and intentional assertion or dissemination of a false fact about another person, which can significantly impair their reputation or public standing. Defamation is specifically regulated in the Criminal Code (StGB) and must be distinguished from related offenses such as insult and slander.
Legal Regulation in the Criminal Code (StGB)
Section 187 StGB – Elements of Defamation
According to Section 187 StGB, anyone who knowingly makes or disseminates an untrue statement of fact about another person that is likely to make that person contemptible or degrade them in public opinion is liable to prosecution. The core feature of defamation is the intentional act, with knowledge of the falsehood of the statement.
The statutory text reads:
“Whoever, contrary to better knowledge, asserts or spreads an untrue fact that is likely to make another person contemptible, degrade them in public opinion, or endanger their credit, shall be punished by imprisonment of up to two years or by a fine; if the act is committed publicly, at a meeting, or by disseminating writings (Section 11 (3)), the penalty shall be imprisonment for up to five years or a fine.”
Elements of the Offense
Subjective Element of the Offense
A key requirement for criminal liability for defamation is the element of intent. The perpetrator must have positive knowledge of the falsehood of the alleged fact, i.e., act “contrary to better knowledge.” Negligence or mere doubts about the truth are not sufficient.
Objective Element of the Offense
- Assertion or Dissemination: Assertion refers to stating a fact as true; dissemination means passing on a fact statement already asserted by others.
- Facts: Only highly personal or objectively verifiable circumstances are covered; mere expressions of opinion are not sufficient.
- Falsehood: A demonstrable contradiction to reality is a prerequisite.
- Suitability for Degradation: The stated assertion must be suitable to damage the reputation or credit of the person.
Distinction from Related Offenses
Difference from Slander (§ 186 StGB)
Unlike defamation, in slander knowledge of the falsehood of the assertion or dissemination is not required. It is sufficient to assert or disseminate a fact that cannot be proven to be true.
Distinction from Insult (§ 185 StGB)
Die Insult covers expressions of disdain or disrespect for another person and also concerns value judgments (expressions of opinion) that are untrue or derogatory, but do not require factual claims.
Criminal Liability and Legal Consequences
Penalty
Defamation is punishable by up to two years’ imprisonment or a fine. If defamation is committed publicly, at a meeting, or by disseminating writings, the penalty increases to up to five years’ imprisonment or a fine.
Criminal Complaint and Prosecution
Defamation is generally an offense prosecuted upon complaint. This means prosecution usually only takes place if the injured party files a criminal complaint, unless the prosecuting authority sees a special public interest in prosecution.
Forms and Examples of Defamation
Typical Case Scenarios
Typical cases include the intentional dissemination of false rumors about a company’s business activities, knowingly untrue allegations of criminal behavior by a person, or false accusations in interpersonal relationships.
Defamation in Media and Social Networks
In the digital age, the offense also applies to publications in online media, forums, and social networks. Distribution via the Internet fulfills the criteria for commission “through writings” and can be considered an aggravating factor as public defamation.
Defamation in Civil Law
Claims for Injunction, Retraction, and Compensation for Damages
In addition to the criminal consequences, those affected may also have civil law claims. These include in particular:
- Right to Injunction: The injured party can demand that the defamatory assertion is not further disseminated (see Sections 1004, 823 (1) BGB).
- Right to Retraction: Under certain conditions, there is a right to public correction (retraction) of the false factual assertion.
- Compensation for Damages: Claims for material and immaterial damages suffered may be asserted, including financial compensation for violation of personal rights.
Rights and Duties of the Parties Involved
Private Prosecution Offense
Defamation is among the so-called private prosecution offenses. In addition to the public prosecutor’s investigation, the victim can initiate prosecution by private action if the public prosecutor’s office denies a public interest in prosecution.
Right to Remain Silent and Counterstatement
Defendants have the right to remain silent. In addition to filing a criminal complaint, those affected can take civil action and insist on a counterstatement, especially against press publications.
Legal Particularities for Public Officials
Defamation of public officials in connection with their official activities is subject to partly stricter regulations with regard to their need for criminal law protection (e.g., Section 188 StGB, slander and defamation against persons in political life).
Statute of Limitations
Die Limitation Period for defamation is generally three years (Section 78 StGB). The period begins when the offense is completed. Interruption or recommencement of the limitation period is possible under certain circumstances.
International Comparisons
In many European legal systems, the offense of defamation or slander exists with similar objectives, although the specific design, threat of punishment, and differentiation from other offenses against honor may vary significantly.
Conclusion
Defamation is a key criminal offense protecting personal honor and reputation. It requires intentional conduct with knowledge of the falsehood of the alleged fact and can result in both criminal and civil law consequences. Particularly in digital media, the significance of the offense is increasing, given the exponential rise in the dissemination of defamatory statements. The statutory regulation aims to balance protecting personal honor and the interest in freedom of expression.
Frequently Asked Questions
Who can be prosecuted for defamation?
In principle, any adult person with criminal responsibility can be held liable for defamation under Section 187 StGB. Legal entities such as GmbHs or associations cannot be directly prosecuted, but the individuals acting on their behalf (e.g., managing directors, association chairpersons, or employees) can be held liable if they commit defamation. Minors between 14 and 18 years may be prosecuted under juvenile criminal law if they have the necessary capacity for insight. As a rule, prosecution requires a criminal complaint from the injured party, unless there is a special public interest in prosecution.
What penalties apply to defamation under German law?
The German Criminal Code provides for defamation (Section 187 StGB) a sentence of up to five years’ imprisonment or a fine. If the defamation is committed in writing (including online, e.g., on social media), by image, or by spreading content, this is considered a qualified offense and can likewise be punished accordingly. In especially serious cases, such as when defamation occurs publicly, through dissemination of writings (Section 11 (3) StGB), or at a meeting, a higher penalty can be imposed. The sentence also depends on the extent of the reputational damage and the consequences for the victim.
How does defamation differ from slander?
Both offenses protect the honor and reputation of a person, but differ in intent: In defamation, the perpetrator asserts or spreads an untrue fact knowingly and intending to harm another. Slander (§ 186 StGB), however, does not require the perpetrator to know that their statement is false; it is sufficient that they cannot prove the fact. While slander is more easily punishable, defamation is considered the more serious infringement on honor, with correspondingly harsher penalties.
Is defamation punishable on the Internet or in social media?
Yes, defamation committed on the Internet, in social networks, or via other digital communication channels is just as punishable as in the analog world. In particular, “public defamation” via Facebook, Twitter, forums, or blogs is regarded as especially serious, since reputational damage is more severe due to the potentially unlimited dissemination. In these cases, the qualification for public dissemination regularly applies, which can lead to increased penalties. However, safeguarding evidence is often more challenging in digital cases, so it is recommended to document and secure relevant content.
What civil claims arise in the event of defamation?
In addition to criminal prosecution, the victim also has numerous civil claims available. These include in particular claims for injunctive relief, with which the perpetrator can be ordered to refrain from further defamatory statements. Furthermore, claims for monetary compensation (damages for pain and suffering) may exist if defamation results in serious violations of personal rights. Retraction and counterstatement claims may also be asserted, if necessary, to restore the reputation of the aggrieved party.
Can defamation also be relevant between companies or other legal entities?
Companies, associations, or institutions can also be victims of defamation if their business or professional reputation is damaged by knowingly untrue, defamatory factual assertions. In such cases, criminal and civil action can also be initiated. In addition to classic defamations, competition law claims for injunctive relief or compensation often come into play, for example if defamation leads to economic disadvantage or reputational loss.
What prerequisites must be met for successful prosecution?
For successful prosecution for defamation, several conditions must be met: A specific untrue fact must have been asserted or disseminated; the perpetrator must know it is untrue and have had the aim of degrading or damaging the victim’s reputation. The statement must be made to at least one third party; self-talk or private diary entries are not sufficient. In addition, a criminal complaint by the victim is usually required, unless there is a special public interest. The burden of proof for the untruth of the assertion lies with the public prosecutor. Special attention should be paid to careful preservation of evidence to increase the chances of a successful complaint.
