Term and Meaning of Defamation
Die Defamation is classified as an offense against personal honor under German criminal law and is regulated in the Criminal Code (StGB). It describes the unlawful assertion or dissemination of dishonorable facts about another person to third parties, without these facts being demonstrably true. The purpose of the regulation is the comprehensive protection of personal honor against unfounded damage to reputation.
Legal Basis
Regulation in the Criminal Code
The criminal law sanctioning of defamation is found in Section 186 StGB. The statutory regulation states:
“Whoever asserts or disseminates a fact about another, which is likely to make them contemptible or to degrade them in public opinion, shall be punished, unless this fact can be proven true, with imprisonment of up to one year or with a fine, and if the act is committed publicly or through the dissemination of writings (§ 11 paragraph 3), with imprisonment of up to two years or with a fine.”
Distinction from Other Offenses Against Honor
- Insult (§ 185 StGB): Covers defamatory value judgments, regardless of their truthfulness.
- Slander (§ 187 StGB): Goes a step further than defamation and covers knowingly false assertions of fact.
- Not covered: pure expressions of opinion and true assertions of fact, unless their dissemination has no legal purpose and they are also punishable under certain exceptions.
Elements of Defamation
1. Fact
The term ‘fact’ includes events or circumstances of the present or past that are capable of being proven. Mere expressions of opinion or value judgments are not sufficient.
2. Assertion or Dissemination
- Assertion: The perpetrator presents the fact as their own conviction.
- Dissemination: Repetition of a statement made by a third party, without the perpetrator necessarily adopting the content as their own.
3. Reference to Another
The statement must relate to an identifiable natural person or an existing legal entity (such as a legal person).
4. Suitability to Bring into Disrepute
The fact must be suitable for making the person concerned contemptible or degrading them in public opinion. It is sufficient if there is an objective possibility of damaging the reputation of the person concerned.
5. Untruth or Lack of Proof of Truth
It is punishable to assert or disseminate a fact only ifit cannot be proven that the fact is true. The legislator prioritizes the protection of honor if there is no clear proof of truth.
Legal Consequences and Scope of Punishment
Defamation is a so-called offense requiring a complaint, which generally only enables prosecution after a complaint by the injured party. In special cases, prosecution can also be initiated ex officio, particularly if there is a special public interest.
The statutory penalty includes the following options:
- Imprisonment of up to one year or
- fine
- Imprisonment of up to two years or a fine if the act was committed publicly or by means of disseminated writings.
Special Forms and Qualifications
Public Commission
If defamation is committed publicly (for example in the press, on television, the internet, or in a crowd) or by dissemination of writings, this is considered to be an aggravating circumstance.
Defamation Against Persons in Political Life
Special protection exists in accordance with Section 188 StGB for members of political bodies, where the penalty is increased, especially in cases where the asserted facts are likely to significantly affect their public activity.
Distinction from Opinions and Other Offenses Concerning Statements
Assertion of Fact versus Value Judgment
Case law makes a clear distinction between assertions of fact (provable, basis of defamation) and value judgments (not provable, usually relevant in the context of insult). These differences are also decisive in social and political debates.
Pursuance of Legitimate Interests
An exception to punishability exists under Section 193 StGB for true statements and dissemination of facts, if this occurs in pursuit of legitimate interests, for example in the context of journalistic reporting, court proceedings, or in safeguarding one’s own legal interests.
Procedure and Practice
Criminal Complaint
As a rule, prosecution requires a complaint by the directly injured person. The complaint must be filed within three months after becoming aware of the fact. The public prosecutor’s office examines whether public interest necessitates prosecution.
Burden of Proof
In a criminal proceeding, the defendant bears the so-called “burden of proof of truth.” This means they must be able to prove the truth of the asserted or disseminated fact. If this proof is successful, criminal liability ceases.
Secondary Consequences
In addition to criminal prosecution, civil claims for injunction, retraction, counterstatement, and compensation for immaterial damages (pain and suffering) may be considered.
International Comparison
Offenses protecting honor, such as defamation, are regulated not only under German law but also in comparable legal systems of other countries, for example, Austrian or Swiss criminal law. Nevertheless, the exact structure and the relationship to freedom of expression and freedom of the press may vary significantly.
Importance in the Context of Media and the Internet
In the era of digital communication, defamation has particular practical relevance. Defamatory content in social networks, forums, or online review portals spreads quickly and can cause severe, lasting damages to honor. This increases the requirements for preventive and protective measures as well as for the enforcement of claims for deletion and counterstatement.
Conclusion
Defamation constitutes an important instrument for the protection of personal honor and good reputation. In particular, it aims to prevent and sanction unfounded defamatory assertions of fact towards third parties and stands in a tense relationship to the fundamental rights of freedom of opinion and freedom of the press. Its comprehensive legal structure reflects the importance of the protection of honor in a free and democratic society.
Frequently Asked Questions
When does a public or accessible communication exist in the case of defamation?
A public or accessible communication as understood under defamation (§ 186 StGB) exists when the defamatory assertion is made accessible to a large, indeterminate group or at least to such a number of persons that it qualifies as public in the sense of criminal law. It is irrelevant whether several people actually perceive the statement; the possibility of awareness is enough. This includes, for example, dissemination of assertions in social networks, on websites, in public forums, but also within clubs, associations or at events, provided the recipient group is not confidential. The mere abstract possibility that uninvolved third parties can become aware of the defamatory statement is sufficient. Communication in a protected and exclusively private setting (e.g. a confidential one-on-one conversation) does not meet the requirement of publicity.
Can defamation also occur in private settings, for example among colleagues?
Yes, defamation can also occur in private settings, for example among colleagues, friends, or family, as long as the statement is not directed solely at the affected person. The decisive factor is that third parties can perceive the asserted fact, as liability arises not from the location but from the group of people involved. Even conversations in small groups, for example in the workplace or at school, can constitute defamation if the statement is not made as part of confidential communication and there is the possibility that third parties become aware. The distinction is always made on a case-by-case basis, taking into account the circumstances and the specific recipient group.
What evidence is admissible in a criminal case for defamation?
In a criminal case for defamation, all usual types of evidence as set out in the Code of Criminal Procedure are admissible. These include in particular witness statements (for example, from people who overheard the defamatory statement), documents (such as emails, chat logs, posts, or letters), expert opinions (regarding the authenticity of messages), as well as judicial inspection (for example, of screenshots). The crucial prerequisite is the provability of the fact that a specific, defamatory assertion was made by the accused and perceived by third parties. In practice, court-proof documentation—for example by means of screenshots or records—is of decisive importance, as the offense often takes place in confidential settings and thus witness testimony is particularly relevant.
What penalties can be imposed for a conviction of defamation?
A conviction for defamation under § 186 StGB carries a penalty of imprisonment of up to one year or a fine; if committed by publication in a way accessible to the public (such as media, internet), even imprisonment of up to two years or a fine. The specific penalty depends on the individual circumstances, especially the nature and severity of the damage to honor, the extent of dissemination, any consequences for the victim, and any previous convictions of the offender. In addition to criminal sanctions, civil claims such as for injunctive relief and damages or compensation for pain and suffering may also be asserted.
Is there a right to a counterstatement or retraction in cases of defamation?
In principle, in cases of defamation there is a civil law claim for correction, retraction and/or counterstatement, if the defamatory assertion is untrue and the affected person’s personal rights have been infringed. The aggrieved person can demand, under civil law, that the false assertion of fact be corrected or retracted, particularly if the dissemination was public. There are also special provisions for counterstatements in press and media law. Enforcement of these claims can be pursued in court. In parallel, the injured party may initiate criminal prosecution (by criminal complaint).
How does the offense of defamation differ from insult and slander?
The offense of defamation differs from both insult (§ 185 StGB) and slander (§ 187 StGB) essentially in the type of defamatory statement and its content. While insult targets the general expression of contempt or disrespect towards a person, defamation involves an assertion of fact that is not provably true and is suitable for damaging the reputation of the person concerned. Slander, on the other hand, requires more than just the inability to prove the truth—it must be knowingly false and disseminated against better knowledge. Slander is therefore particularly serious and is punished more severely accordingly.
Can defamation be prosecuted if a person’s reputation is “only” harmed on the internet?
Yes, statements on the internet can also constitute the offense of defamation. The internet enables particularly rapid and wide dissemination of defamatory content, so that this often even constitutes public or accessible dissemination in the sense of § 186 StGB. Platforms such as social networks, review portals, or discussion forums provide no criminal law safe harbor—on the contrary, there is an increased duty for truthful assertions. Victims can also report the incident online and, if necessary, enforce claims for injunctive relief or damages. Prosecution is guaranteed regardless of the medium as long as the statement falls within the scope of German law.
