Definition and legal definition of inciteful insult
Die inciteful insult is a criminal law term that penalizes certain forms of insult, where offensive remarks are also aimed at inciting hatred against specific population groups. Especially in German law, inciteful insult is not explicitly regulated under this term, but forms an intersection between the criminal offenses of insult (§ 185 StGB), defamation (§ 186 StGB), slander (§ 187 StGB), and in particular § 130 StGB – incitement to hatred (Volksverhetzung). In Austria, § 283 StGB ‘Incitement’ provides a specific regulation, whose scope of application can be extended with aggravating effect to insulting elements.
Distinction from the term insult
Die Insult under § 185 StGB covers defamatory statements that do not necessarily have to relate to a social group or have the potential to incite. In contrast, the inciteful insult is characterized by degrading a group of people or individuals due to their affiliation with a specific ethnic, religious, or social group, and attempting to publicly incite against them.
Legal basis: Regulations in Germany
StGB – German Criminal Code
In Germany, the inciteful insult is mainly covered by the following sections:
- § 185 StGB – Insult: General protection of honor for individuals and groups.
- § 130 StGB – Incitement to hatred (Volksverhetzung): Protects peaceful coexistence from agitation against national, ethnic, religious, or specific social groups.
- § 189 StGB – Defamation of the memory of deceased persons: Protection of the personal honor of the deceased.
An inciteful insult regularly fulfills both the offense of insult and elements of incitement to hatred, particularly if the statement is made in a manner that can disturb public peace.
§ 130 StGB – Incitement to hatred in detail
§ 130 StGB differentiates various actions that are punishable, such as:
- Inciting hatred against national, racial, religious, or ethnically defined groups, or parts of the population;
- Calling for acts of violence or arbitrary measures against their members;
- Insulting, maliciously disparaging, or slandering these groups in a way that is likely to disturb public peace.
In particular, the last point overlaps with the concept of inciteful insult, as the act can be characterized by offensive, disparaging, or slanderous statements.
Requirements and elements of the offense
Subjective element of the offense
The perpetrator must act with at least conditional intent. It is sufficient that they recognize the possibility of a disturbance of public peace and accept it.
Objective element of the offense
- Recipient: The target is individuals as representatives of certain groups or the groups themselves.
- Public utterance: The statement must be made publicly or in a way that is likely to have a wide impact.
- Reference to the group: The degradations are made precisely with reference to the ethnic, religious, or other protected identity and are likely to promote hatred, willingness to commit violence, or contempt.
Examples of groups that are legally protected: ethnic groups, national, racial, religious communities, sexual minorities.
Distinction from other criminal offenses
Insult (§ 185 StGB)
Simple insult protects personal honor without incitement against groups.
Defamation and slander (§§ 186, 187 StGB)
These offenses concern false, reputation-damaging factual assertions about individuals or groups, but without inciting hatred.
Dissemination of inciteful content (§§ 130, 130a StGB)
Here, the legislator places particular emphasis on public impact and potential for disturbing the peace. The threshold for criminal liability is higher than for individual insult.
Sanctions and penalties
Threat of penalty
For insult (§ 185 StGB): Fine or imprisonment of up to one year, or up to two years in the case of physical assault.
For incitement to hatred (§ 130 StGB): Imprisonment from three months to five years, and even longer in particularly serious cases.
Attempt and participation
The attempt to commit inciteful insult is not punishable, but attempted incitement to hatred is. Incitement and aiding and abetting are punished according to general rules.
Case law and practical examples
The highest courts emphasize that each individual case must be assessed in context. The boundary to permissible freedom of expression is crossed when personal rights are systematically violated and groups become targets of public disparagement. Typical practical examples include racist graffiti, incitements against religious or ethnic minorities, and hate slogans spread publicly.
Scope of protection and constitutional law
Freedom of expression and its limits
Art. 5 para. 1 German Basic Law (GG) guarantees freedom of expression. However, legislators may impose restrictions under Art. 5 para. 2 GG through general laws—such as §§ 130, 185 StGB—especially to protect personal honor or public peace. According to constant case law of the Federal Constitutional Court, inciteful insults are not covered by the scope of freedom of expression.
Legal situation in Austria
In Austria, incitement under § 283 StGB is punishable if hatred is incited against certain groups or violence is advocated. Degrading passages and insulting acts against protected groups can also fulfill this offense.
International classification
Many other European legal systems recognize similar offenses, for example, in France (“provocation à la haine”), the United Kingdom (Public Order Act), or Switzerland (Art. 261bis StGB). The international framework is provided by the United Nations’ “Convention on the Elimination of All Forms of Racial Discrimination” (ICERD), which obliges member states to effectively combat hate and discrimination.
Summary and significance for practice
The inciteful insult is at the intersection of offenses against personal honor and the protection of collective legal interests. It covers conduct that not only violates the honor of individuals or groups but is also likely to disrupt social peace and create an atmosphere of intolerance and willingness to commit violence. Through statutory provisions and nuanced case law, both individual and collective protection is ensured. Inciteful insult thereby serves as a central instrument in the fight against group-related misanthropy and social division.
Frequently Asked Questions
Which criminal offenses may be relevant alongside § 130 StGB (incitement to hatred) in cases of inciteful insult?
In cases involving inciteful insults, several offenses under the German Criminal Code (StGB) may apply. Alongside § 130 StGB (incitement to hatred), § 185 StGB (insult) is of central importance. Insult includes statements expressing contempt or disrespect, with the scope of protection covering the personal honor of the individual. If a group is insulted due to its ethnicity, religion, worldview, nationality, or other characteristics, § 185 StGB can also apply, even if liability under § 130 StGB already exists (so-called concurrence of offenses, § 52 StGB). In addition, for publicly made defamatory statements about groups or individuals, §§ 186 (defamation) and 187 StGB (slander) may be relevant, provided that false facts are alleged that can harm reputation. The offenses of incitement to commit a crime (§ 111 StGB) or public incitement to commit a crime (§ 111 para. 1 StGB) may also apply to certain content. Furthermore, the offense of insulting religious denominations, religious societies, and ideological associations (§ 166 StGB) may be relevant, particularly if religious groups are targeted. Prosecution generally requires an application from the victim, §§ 194 ff. StGB, unless there is a particular public interest in prosecution.
When is a statement not an inciteful insult but a permissible expression of opinion?
The Basic Law guarantees freedom of expression pursuant to Art. 5 GG; however, this right is limited by general laws, in particular the provisions protecting personal honor and by the incitement to hatred statute. There is no inciteful insult if the statement is made as factual criticism and does not violate the human dignity of others or incite hatred against parts of the population, or calls for violence or arbitrary measures. The distinction is made according to the so-called doctrine of interaction, which considers the tension between freedom of expression and its criminal law limits. The key criterion is ‘abusive criticism’; purely polemical, exaggerated, or provocative expressions of opinion are still protected as long as they do not cross the line into defamation or incitement. In cases of inciteful insult, it is also important whether the statement is grossly defamatory and specifically aims to degrade a person or group—mere criticism is not punishable.
Are there differences between inciteful insult online and offline?
From a legal perspective, there is fundamentally no difference in criminal liability between online offenses (e.g., in social networks, on websites, or in forums) and offline offenses (e.g., at assemblies, on flyers, or in personal conversations), since the provisions of the StGB apply regardless of the location of the crime. However, there may be effects on sentencing in individual cases, particularly concerning the reach of the offense and the dissemination of content. Inciteful insults on the internet are generally considered acts committed publicly due to their potentially unlimited audience and can therefore be punished under § 130 para. 1 no. 1 StGB with a higher penalty. A further aggravating factor is that content may remain permanently accessible online. Investigating the perpetrators can also be more complex because it may involve international jurisdictions, especially regarding investigative powers and the service of legal documents.
Who can be a victim of an inciteful insult and which groups are particularly protected?
Both individuals and groups can be victims of inciteful insult if they are insulted, disparaged, or threatened because of certain characteristics such as origin, nationality, ethnicity, religion, worldview, sexual orientation, gender, disability, or other comparable criteria. The provisions under § 130 StGB specifically protect groups of people, segments of the population, or individuals as members of such groups. The special protection afforded by this offense is aimed at safeguarding collective identities against attacks that may disrupt the peaceful coexistence of society or marginalize and stigmatize certain groups. Individuals are mainly protected by the conventional offenses against honor (§§ 185 ff. StGB) when the act targets them specifically as members of a protected group or affects their human dignity.
Is the offense of inciteful insult prosecuted even without a criminal complaint?
The prosecution of inciteful insults depends on the relevant offense. Incitement to hatred under § 130 StGB is an official offense and is prosecuted ex officio—a criminal complaint by the victim is not required. Insult offenses under §§ 185 to 187 StGB, on the other hand, are generally offenses requiring a complaint and are thus prosecuted only upon application of the directly affected party (§ 194 StGB), unless in individual cases there is a special public interest in prosecution, for example, due to the seriousness of the offense. In mixed cases where both § 130 StGB and §§ 185 ff. StGB are applicable, the specific legal assessment by the authorities is decisive.
What sanctions can be imposed for an inciteful insult?
The penalty depends on the applicable offense and the circumstances of the individual case. For incitement to hatred (§ 130 StGB), the penalty is usually imprisonment from three months to five years; in less serious cases or for first-time offenders, a fine may also be imposed. For insults (§ 185 StGB), defamation (§ 186 StGB), or slander (§ 187 StGB), the range is from a fine up to imprisonment for up to five years (for slander). In addition, there may be further consequences, such as civil claims for damages by the victim under the German Civil Code (BGB) or claims for injunctive relief. The severity of the penalty is determined by the seriousness of the offense, the motives, the manner of the statement, prior convictions, and behavior after the act (e.g., apology, withdrawal of the statement). The public interest in punishing such offenses is generally high, so significant sanctions can be expected.
