Definition and concept of misuse instructions
Misuse instructions refer to texts, representations, images and/or audio recordings that contain instructions, information, or descriptions on how another person can be unlawfully or criminally harmed. Misuse instructions are particularly relevant in German law if they are designed and disseminated for the execution of criminal offenses or administrative violations. The term is primarily used in a legal context in connection with the preparation of criminal acts as well as the dissemination of criminal content.
Legal classification and criminal offenses
Misuse instructions in the German Criminal Code
The production, dissemination, or making available of misuse instructions is expressly prohibited under certain circumstances in German criminal law. The main legal basis for this is found in the following sections of the German Criminal Code (StGB):
Section 130a StGB – Incitement to commit offenses
According to Section 130a paragraph 1 StGB, it is a criminal offense to disseminate, make publicly accessible, produce, obtain, or provide to third parties any writings or other representations that guide the commission of unlawful acts. The catalog of offenses specifically includes serious crimes such as murder, manslaughter, robbery, or explosive-related offenses.
Section 184e StGB – Instruction in the sexual abuse of children
Specifically for misuse instructions relating to sexual offenses against children, Section 184e StGB has established its own criminal provision. This targets content that aims to promote, enable, or guide sexual acts on, before, or with children.
Other relevant legal norms
In addition to Sections 130a and 184e StGB, numerous related provisions exist that can also be relevant in the context of misuse instructions. These include, for example, Section 91 StGB (Instruction on committing a serious act of violence endangering the state) or Section 202c StGB (Preparation for data espionage and interception).
Legal definition and distinction
The formulation used in the StGB, ‘instruction to commit an offense,’ requires that the respective work contains specific instructions or information that are suitable and intended to enable or motivate others to commit a concrete unlawful act. A general text about how certain techniques function is not sufficient; concrete instructional action is required.
Practical forms and examples of application
Types of misuse instructions
Misuse instructions can be found in various media formats, including:
- Text-based manuals and ‘how-to’ texts
- Videos with behavioral explanations
- Images, drawings, and infographics
- Audio contributions, podcasts, and voice recordings
Well-known examples include bomb-making instructions, tips on spying on third-party data, or detailed descriptions of the commission of specific sexual offenses against minors.
Dissemination on the Internet
Due to advances in digital communication, the dissemination of misuse instructions has gained significant relevance. Especially on the ‘darknet’ and in certain forums, such content is exchanged, which poses major challenges for law enforcement agencies.
Criminal liability, elements of the offense, and distinctions
What is punishable?
It is not only the act of directly committing a crime after following an instruction that is punishable, but already the instruction itself and making such content accessible. In particular, Section 130a StGB focuses on actions ‘suitable to incite others to imitate.’
Distinction from legal publications
The boundary between misuse instruction and legal information for science, research, or technology is fluid. Content that is objectively and visibly intended for scientific enlightenment, journalism, or the lawful presentation of historical or technical matters is generally not subject to criminal liability. In each individual case, the purpose and content of the publication are crucial.
Penalties and legal consequences
The penalties stipulated in Section 130a StGB provide for imprisonment of up to three years or a fine. In cases of offenses against children, the penalties are typically higher and can reach up to five years of imprisonment.
International and European law
Other countries and supranational institutions also treat misuse instructions as criminal content. At the European level, there are coordinated efforts to combat the dissemination of such instructions, for example through the Cybercrime Convention (Convention on Cybercrime). By international comparison, however, definitions and penalties differ considerably.
Prevention, investigation, and challenges
Preventive measures
State measures aim to prevent the dissemination of misuse instructions. Technical filter systems, reporting obligations for service providers, and international cooperation among law enforcement agencies are part of prevention efforts.
Difficulties in law enforcement
The global availability of information online makes it difficult to clearly assign responsibility, as content is often hosted abroad. Criminal prosecution is therefore characterized by legal and technical barriers.
References and further sources
- German Criminal Code (StGB), especially Sections 130a, 184e, 91, 202c
- Council of Europe Convention on Cybercrime
- Specialist literature on computer and media criminal law
- Federal Agency for Civic Education: Texts on cybercrime and media ethics
Summary
According to German law, misuse instructions are texts or representations that specifically incite or facilitate the commission of criminal offenses. The mere act of making such instructions accessible can already be punishable. Legal assessment is sensitive and always involves balancing freedom of expression, academic freedom, and the interests of criminal protection. Increasing digitalization and international networking present new challenges for the law in handling misuse instructions.
Frequently Asked Questions
When does a misuse instruction constitute a criminal offense in the legal sense?
A punishable misuse instruction exists under German law in particular when a person disseminates information, instructions, or guidance aimed at preparing or facilitating criminal offenses. The decisive provision here is Section 130a StGB (incitement to commit crimes), which specifies that dissemination, making publicly accessible, or causing such actions is sufficient to fulfill the offense. It does not matter whether a crime is actually committed; what matters is the objective suitability of the instruction to advance an unlawful act, as well as the intent of the disseminator. For example, a misuse instruction exists where detailed technical instructions for making explosives, hacking methods, or drug preparation are made publicly available, clearly intending to prepare or enable a criminal act. From a legal perspective, both the medium (text, image, video, etc.), the reach, and the targeted addressing of interested parties are relevant.
Which laws govern the prohibition of misuse instructions in Germany?
The prohibition on the dissemination of misuse instructions is primarily based on Section 130a StGB (incitement to commit offenses), supplemented by other regulations such as the Weapons Act, the Explosives Act, and the Narcotics Act, depending on the specific content of the instructions. In the field of cybercrime, Section 202c StGB (preparation for data espionage and interception) is also relevant, which criminalizes, for example, the dissemination of instructions or software programs for the illegal acquisition of data. Depending on the content, further provisions from competition law, copyright law, or regulatory law may also apply. The Telemedia Act (TMG) and the Network Enforcement Act (NetzDG) also contain relevant regulations on the liability of internet service providers for illegal content.
How do courts judge whether an instruction is ‘obviously suitable’ for the commission of a crime?
Courts decide on a case-by-case basis, taking into account the content, design, and context of dissemination of the respective instruction. What is decisive is whether the instruction, through its specific wording and presentation, is objectively suitable so that even less knowledgeable individuals could understand and implement it in a way that prepares or enables a crime. The court also examines whether the document goes beyond general or scientific information and contains practical instructions connected to a specific offense. It is also key how specialized or accessible the information is and in which context it is published. For example, courts can quickly consider clear ‘step-by-step’ instructions for circumventing technical security measures or for producing illegal substances to be punishable misuse instructions.
What penalties may apply for disseminating misuse instructions?
The penalty for disseminating misuse instructions is primarily governed by Section 130a StGB. This provides for imprisonment of up to three years or a fine. Depending on circumstances, other criminal provisions may apply, for example from IT criminal law (Section 202c StGB) or special laws such as the Weapons Act, which can lead to significantly higher penalties, especially in cases of commercial or organized dissemination. Under juvenile criminal law or in less serious cases, a more lenient penalty can be imposed. If serious crimes are triggered or prepared with the instruction, higher penalty ranges may apply on a case-by-case basis, up to criminal liability as an accomplice or accessory.
Is merely being aware of or reading a misuse instruction punishable?
Mere awareness of or reading a misuse instruction is generally not punishable under current German law. Criminal liability requires active conduct, especially publishing, making accessible, transferring, or inciting others to access the instruction with intent. Even private saving or storing is only punishable if it constitutes further preparatory acts, for example under Section 202c StGB (preparation for data espionage), which generally requires a further specific purpose.
To what extent are journalistic or scientific publications covered by misuse instructions?
Journalistic or scientific publications are not subject to the criminal prohibition if they fall within the so-called ‘socially adequate purpose’, meaning they pursue a clearly legitimate educational or research purpose and do not primarily promote or facilitate the commission of crimes. If there are objective indications that a publication, despite a scientific or journalistic appearance, essentially aims to provide practical criminal instructions, criminal liability may nonetheless apply. For courts, the decisive factor is the balance between freedom of expression, academic, and press freedom versus the protection of public safety.
What role does intent play in the dissemination of misuse instructions?
For criminal liability under Section 130a StGB (and comparable regulations), intent is required. This means the perpetrator must act knowingly and deliberately, that is, they must at least recognize and accept the suitability of the instruction to prepare or facilitate a crime. Negligent or unintentional dissemination—such as through a technical error—generally does not fulfill the offense. In particularly serious cases, however, attempt or participation provisions may apply, which broaden criminal liability.
