Term and meaning of disparagement
Das Disparagement is a significant concept in German law that encompasses various contexts, particularly in criminal law as well as public law. At its core, disparagement describes the degradation or lowering of the honor, dignity, or social reputation of a natural or legal person, a group, or an institution. This is done through statements, actions, or publications that are capable of provoking contempt or substantially impairing public reputation.
Historical development of the term
Origin within the legal framework
Historically, the term ‘disparagement’ can already be traced in German law to the 19th century, particularly in connection with protective laws for state institutions and symbols (e.g., monarchy, state symbols). Over time, however, disparagement also gained importance in connection with the protection of individual rights, such as personal honor or religious feelings.
Development in criminal law
In the Criminal Code of the German Reich (StGB), disparagement was initially regulated criminally in the context of protecting vital state institutions. Over the course of legal history, this provision has been further developed and adapted to new social and legal requirements.
Disparagement in German criminal law
Relevant criminal offenses
Section 90a StGB – Defamation of the state and its symbols
According to Section 90a of the Criminal Code, it is a criminal offense to disparage symbols of the state of the Federal Republic of Germany or the constitutional order. The offense requires that through a public act, for example through statements, gestures, or depictions, the state, its organs, or its symbols are degraded.
Section 166 StGB – Insulting religions, religious societies, and ideological associations
Section 166 StGB also sanctions disparagement criminally if the degradation is directed at religious communities, ideological associations, or their institutions and is suitable to disturb public peace.
Other offenses related to disparagement
Disparagement also appears in connection with criminal offenses such as defamation (§ 186 StGB), insult (§ 185 StGB), as well as ‘defamation of the memory of the dead’ (§ 189 StGB).
Elements of the offense
For disparagement to be relevant under criminal law, the following conditions generally must be met:
- Objective suitability to degrade: The act must be suitable to violate the social reputation of the affected party in the eyes of third parties.
- Expression to the outside: Disparagement must occur in a manner that goes beyond a purely private expression of opinion and has external effect (e.g., through public communication).
- Intent: As a rule, intent is required; that means the perpetrator must consciously accept the degradation or deliberately aim for it.
Disparagement in public law
Administrative law context
In public law, disparagement plays a role particularly as a prerequisite for restricting freedom of expression pursuant to Article 5 of the Basic Law (GG). Expressions of opinion that cross the line into smear criticism and thus constitute criminally relevant disparagement are not protected under Article 5, Paragraph 1 GG.
Police and regulatory law
Measures may also be ordered if disparaging depictions or statements pose dangers to public order or security.
Distinction between disparagement and other terms
Difference to insult and defamation
Whereas disparagement has an objective element of negative evaluation, insult and defamation often also involve personality-related assessments and assertions of fact. Not every insulting statement fulfills the elements of disparagement, but these terms often overlap in practice.
Relevance in civil law
Under civil law, especially in the context of claims for injunction and removal pursuant to Sections 1004 and 823 BGB, public disparagement can constitute an unlawful infringement of the general right of personality.
Balancing with freedom of expression
The tension between protection from disparagement and freedom of expression is a central element of legal disputes. The case law of the Federal Constitutional Court always requires a careful balancing of the protection of personal rights and protection of freedom of expression—especially in relation to statements made in the context of public opinion formation.
Relevance and protected objects
Protected objects of disparagement
- Natural persons
- Legal entities
- State institutions
- Religious communities
- Symbols and institutions with special protection needs
Examples from case law
The courts have ruled in numerous cases as to when a statement is to be qualified as disparagement. The classification always depends on the individual case, the context of the statement, and its concrete effect on reputation.
Legal consequences and sanctions
Criminal disparagement may lead to fines or imprisonment. In the context of civil law, claims for injunction and damages can be asserted. Authorities may, where appropriate, issue regulatory measures to maintain public order.
International perspective
Comparable provisions exist in many European legal systems, protecting in particular state organs, national symbols, and religious groups from acts of disparagement. However, there are significant differences in international legal systems in the approach to the tension between protection of honor and freedom of expression.
Summary
Disparagement is a multifaceted term in German law, applied in criminal, public, and civil law contexts. It serves to protect the honor, reputation, and dignity of various protected entities against degrading or dishonoring statements and actions. The legal assessment is always characterized by a balancing of other fundamental rights—especially freedom of expression—and courts and authorities conduct a thorough examination of each individual case.
Frequently asked questions
What legal consequences can disparagement of a person have under German law?
Disparagement of a person can have various criminal and civil law consequences under German law. In criminal law, Sections 185 StGB (insult), 186 StGB (defamation), and 187 StGB (slander) are particularly relevant if the disparagement injures another’s honor. Even the public use of defamatory statements, gestures, or depictions may already constitute a criminal offense. Additionally, civil claims such as for injunction, counterstatement, retraction, and possibly compensation for pain and suffering pursuant to Section 823 BGB (liability for damages in tort) may arise. The legal consequences depend on the severity, scope, and risk of repetition of the statements. In cases of recurrence or particular persistence, a preliminary injunction may also be issued.
To what extent is disparagement protected in the context of freedom of expression?
Freedom of expression pursuant to Article 5, Paragraph 1 GG is a highly valued good in the German legal system. However, it finds its limits particularly in the provisions of general laws and in the rights of personality development. Targeted disparagement of a person generally exceeds the scope of protection of freedom of expression, particularly if it constitutes smear criticism—in other words, the degradation of a person beyond objective discussion. Courts regularly weigh whether an admissible expression of opinion or an impermissible violation of personal rights is present. The context in which the disparaging statement was made (e.g., private, professional, or public setting) also plays a role.
Is there a legal distinction between direct and indirect disparagement?
Legally, disparagement can be effected both through immediate, explicit statements and through indirect, suggestive, or context-related remarks. Courts always examine how an objective third party would interpret the respective statement (objective recipient’s perspective). Even subtly formulated degradations may be legally relevant if they are suitable to cause significant harm to the reputation of the affected party in public or private. The motive or intent of the speaker is to be considered in the individual case, but is not solely decisive.
What rights does a person have if they have been disparaged?
If a person is disparaged, various legal remedies are available. Initially, they can seek an injunction to prevent further defamatory statements. There is a right to retraction and counterstatement if false facts have been disseminated. Furthermore, a claim for damages or compensation for pain and suffering may exist if a significant non-material injury can be proven. In case of acute or imminent recurrence, the affected person may also apply for a preliminary injunction to rapidly obtain court protection. If there is justified fear of a criminal offense, a criminal complaint can also be filed with the police or public prosecutor’s office.
How is disparagement evaluated legally in professional contexts, for example in the workplace?
Disparagement in the workplace may result in labor law as well as civil and criminal law consequences. In the employment law context, behavior damaging to reputation can justify a warning and, in the case of recurrence, even summary dismissal. Employers are obliged by the General Equal Treatment Act (AGG) and their duty of care to protect employees from discrimination, bullying, and defamatory actions. Affected persons can seek support from works councils, the employer, or external bodies (e.g., equal opportunities officers, anti-discrimination agencies). Legally, criminal or civil law can also be pursued in parallel to enforce claims for injunction, removal, or damages.
What evidence is required to prove legally relevant disparagement?
Convincing evidence is essential for the legal pursuit of disparagement. This may include: writings (emails, letters, chat logs), audio and video recordings (if legally permissible), witness statements, screenshots, or posts on social media. It is important that the evidence has been obtained in accordance with the rules of criminal and civil procedure and is admissible in court. In general, the burden of proof lies with the person asserting the disparagement. Incomplete or inadmissible evidence may lead to dismissal of the claim. In serious violations of personal rights, the court may, in individual cases, order the taking of evidence, such as witness examination.
Are there special protective mechanisms for disparagement against public figures or officials?
Public figures and officials generally enjoy the same legal protection of honor as private individuals, but especially prominent individuals in public life are subject to increased scrutiny and criticism by the public. The limits of permissible criticism are determined by the balance between freedom of expression and the right to privacy. In cases of attacks that solely serve to degrade and disparage the official or person, the same legal remedies such as injunction, retraction, or criminal prosecution apply. Special protection provisions exist for especially severe cases, for example, within the framework of protecting state institutions and their representatives (§ 188 StGB – Defamation and slander against persons in political life). Here too, courts examine particularly carefully the protectability of the attacked person in relation to the importance of the statement for public opinion formation.
