Definition and Legal Classification of Defamation
The Term defamation in the legal context refers to the deliberate, often untrue disparagement or dissemination of negative information about a person, company, or institution to third parties, with the aim of damaging their reputation or legal interests. Defamation has various manifestations within German civil and criminal law and can lead to civil, criminal, and employment law consequences.
Civil Law Aspects of Defamation
General Right of Personality
Das general right of personality is constitutionally protected (Art. 1 para. 1 in conjunction with Art. 2 para. 1 GG). Defamation can constitute an unlawful infringement of personal rights, especially when false facts are asserted or degrading value judgments are expressed. Those affected generally have a claim for injunctive relief, retraction, and, if applicable, damages or monetary compensation (§ 1004 BGB analog, § 823 para. 1 BGB).
Defamatory Statements
Defamation often overlaps with defamatory statements. This includes in particular insult (§ 185 StGB), defamation (§ 186 StGB), and slander (§ 187 StGB). Defamation can also trigger claims for injunctive relief and damages in civil law.
Law of Torts
For civil liability under § 823 BGB, defamation must constitute a violation of a legal interest (such as the general right of personality or the right to the established and active business), as well as culpability and a causal damage.
Criminal Law Aspects of Defamation
Criminal Offenses
Defamation (§ 186 StGB)
Defamation falls under the criminal provision of defamationif facts about another person are asserted or disseminated that are not proven to be true and are likely to make them contemptible or degrade them in public opinion. The perpetrator does not need to be aware of the untruth.
Slander (§ 187 StGB)
In the case of slander the perpetrator knowingly asserts or disseminates false facts in order to deliberately damage another’s reputation. Unlike defamation, slander requires knowledge of the falsehood.
Insult (§ 185 StGB)
Even degrading value judgments without statements of fact can be punishable as insult.
Slander in Competition (§ 16 UWG)
According to § 16 of the Act Against Unfair Competition (UWG), it is a criminal offense in competition to publicly disparage other competitors or their products by making false factual accusations.
Employment Law Relevance of Defamation
Bullying and Defamation in the Workplace
In employment law, defamation can constitute a form of bullying or defamation among colleagues or by superiors. Repeated defamation with the goal of hindering professional advancement or poisoning the working environment can justify employment law measures such as warnings, dismissal, or claims for compensation.
Relevance for Dismissal
Depending on the severity of the allegations, defaming a colleague can constitute valid grounds for immediate dismissal, particularly in cases of knowingly false statements.
Defamation in Public and Private Spheres
Public Sphere and Media
Defamation can also occur through media, social networks, or public platforms and thus have a wide impact. Published untrue statements of fact or defamatory value judgments not only trigger injunctive and retraction claims, but often also claims for damages.
Protective Measures and Legal Remedies
Legal protection against defamation is available, for example, through interim injunctions for injunctive relief, criminal complaints, rights of counterstatement, and the assertion of claims for monetary compensation—especially when the social standing of the affected person or company is significantly impaired.
Procedural Aspects of Defamation
Burden of Proof
In case of dispute, the party asserting a fact generally bears the burden of proof. In cases of defamatory statements of fact, the claimant must be able to prove the truth (so-called reversal of the burden of proof).
Compensation for Pain and Suffering and Monetary Compensation
In serious cases of defamation involving unlawful violations of personality rights, there may be a claim to monetary compensation (“compensation for pain and suffering”), especially if the affected individual’s reputation has been significantly damaged and no other compensation is possible.
Conclusion and Conceptual Distinction
Die defamation is a broad term that carries various legal risks and can have both civil and criminal consequences. It includes classic defamation offenses, infringements of personal rights, workplace bullying, and competition law offenses. Whether certain conduct constitutes permissible criticism or the exercise of legitimate interests must always be examined on a case-by-case basis. Affected parties are legally protected against defamatory and reputation-damaging actions under existing claims. The effectiveness of legal protection largely depends on the evidentiary situation and the intensity of the infringement.
Frequently Asked Questions
What legal consequences can defaming a person entail?
Deliberately defaming a person can have significant legal consequences for the perpetrator, especially when false assertions of fact or slanders are involved. Anyone who intentionally disparages another person to third parties or accuses them of unfounded or fabricated criminal acts can potentially be prosecuted under § 187 StGB (criminal code, slander). Spreading an untrue fact is generally considered defamation (§ 186 StGB), while intentionally false assertions that injure honor can be prosecuted as slander. In addition, civil consequences such as injunctive, retraction, and, if applicable, damage compensation claims may arise, for example under § 823 BGB (obligation to pay compensation) due to infringement of the general right of personality. If the dissemination is via the internet or social media, press and data protection laws often apply as well. Therefore, affected persons can take comprehensive action against defamation—both criminally and civilly.
Is defamation in the workplace a criminal offense or merely an employment law issue?
Defamation in the workplace can lead to both employment law and criminal consequences. Under employment law, warnings or even dismissals may be imposed, particularly if defamation seriously disrupts workplace relations or endangers industrial peace. Criminally, depending on the content of the allegations, it may be prosecuted as insult (§ 185 StGB), defamation (§ 186 StGB), or slander (§ 187 StGB). In especially serious cases, such as knowingly filing a false report with authorities, criminal procedural provisions can also apply, e.g. false accusation (§ 164 StGB). It is important to note that not every negative comment about colleagues or superiors is automatically a criminal offense – the truthfulness and motivation behind the comment are always decisive.
What claims can victims of defamation assert?
Victims of defamation have a range of claims that they can assert both out of court and in court. Under civil law, injunctive, retraction, and, if applicable, damage compensation claims are particularly relevant (§§ 823, 824 BGB). If the general right of personality or image rights have been violated, there may also be a claim for monetary compensation (“compensation for pain and suffering”). In addition, under criminal law, victims may claim compensation for pain and suffering (§ 253 BGB), and possibly initiate accessory or adhesion proceedings in a criminal trial. In serious cases, filing a criminal complaint and applying for an interim injunction to quickly stop ongoing defamation is recommended.
When is a report to a superior or authority not defamation?
A report to a superior or authority does not constitute defamation if the whistleblower reports facts that are true and verifiable, and the report is made in good faith and in legitimate interest. This is especially true in the case of so-called whistleblowers, when actual misconduct or even criminal offenses are reported. The Whistleblower Protection Act (HinSchG) strengthens whistleblowers as long as they do not intentionally make false accusations. However, as soon as knowingly or negligently false information is communicated, criminally relevant offenses such as defamation or slander may arise. The protection of the whistleblower is therefore linked to objective truth and the absence of malicious intent.
What is the significance of evidence in cases of defamation?
Evidence is of central importance in cases of defamation, as it can prove whether the allegations are true or unfounded. In criminal and civil proceedings, the burden of proof often lies with the person making the defamatory statement if it involves positive allegations regarding supposed incidents – they must substantiate their claims. On the other hand, in civil proceedings, the injured party must, for example, prove the violation of their personal rights. Evidence can include witnesses, documents, emails, chat logs, audio recordings, or other documents. Securing evidence is essential for asserting future claims for injunctive relief or damages, as claims often fail for lack of substantiation if there is insufficient evidence.
How do claims related to defamation become time-barred?
The statute of limitations for claims related to defamation depends on the relevant legal basis. Under criminal law, the limitation period is governed by the respective provisions of the StGB: For defamation and slander, the prosecution limitation is generally three years (§ 78 para. 3 no. 5 StGB). Civil claims, such as those for injunctive relief or damages, generally become time-barred under § 195 BGB three years after knowledge of the violation and the identity of the violator, but in any case after ten years. Special rules apply, for example, in cases of ongoing defamation or violations in a professional context. It is therefore strongly recommended to assert claims in good time to avoid loss of rights.
Is there a legal distinction between defamation and whistleblowing?
Legally, a distinction is made between defamation and whistleblowing. While defamation is usually associated with untrue, defamatory, or out-of-context negative portrayals and primarily aims to harm another, whistleblowing aims to point out actual misconduct or criminal offenses in order to prevent harm to the general public or the company. The Whistleblower Protection Act protects whistleblowers, provided they report truthfully and to the best of their knowledge and belief. Anyone who deliberately makes false statements can be prosecuted regardless of the circumstances. The decisive difference therefore lies in the truthfulness of the statements and the intent behind the report.
