Defamation of the memory of the deceased
Die Defamation of the memory of the deceased is a criminal offense that serves to protect post-mortem personality rights and is regulated in Germany by Section 189 of the German Criminal Code (StGB). The legislator aims to protect the memory of deceased persons against defamatory attacks, even though the deceased is no longer a legal entity under German law. This provision forms part of the protection of honor in criminal law and differs in its scope, its prerequisites, and its relationship to the personality rights of living persons.
Legal Classification
The defamation of the memory of the deceased is regulated in Section 189 StGB and is classified as an offense against honor. It is embedded in Chapter 14 of the Penal Code, which covers various forms of offenses against honor, such as insult (Section 185 StGB), malicious gossip (Section 186 StGB), and defamation (Section 187 StGB).
Text of the Law (Section 189 StGB)
“Whoever defames the memory of a deceased person shall be punished with imprisonment of up to two years or with a fine.”
With the current version of the StGB coming into force, the disparagement, vilification, or malicious disregard of a deceased person can be prosecuted even after their death.
Protected Legal Interests
The protected legal interest is the post-mortem personality right, in particular the social reputation and respect that the deceased enjoyed among other people. This protection is based on the moral and ethical values of society and thus protects the social claim to respect beyond death.
Rights of Relatives
Although the protection of memory is primarily related to the deceased person, it also indirectly includes relatives, who may be affected in their sense of reverence. However, the punishability of defamation of memory is independent of their will or a criminal complaint on their part, as the offense is prosecuted ex officio.
Offense Elements
Objective Elements of the Offense
The objective elements require an act that defames the memory of a deceased natural person. The decisive factors are:
- Reference to the deceased: The person whose memory is being defamed must actually be deceased. The time of death is decisive.
- Defamation: The act must be suitable for diminishing the reputation of the deceased in public. This includes defamatory statements, vilification, insults, or gross misrepresentations of the character, lifestyle, or actions of the deceased.
- Act of Commission: Included are both verbal and written statements, gestures, publications, media depictions, and other public expressions.
It is not required that the defamation already exceeds the threshold of criminal insult (Sections 185 ff. StGB). What matters is whether the dignity and reputation of the deceased are significantly impaired.
Distinction from Criticism and Permissible Expression of Opinion
Freedom of expression under Article 5 of the Basic Law must also be taken into account with regard to the deceased. Criticism that remains objective and occurs within the context of historical or public debates is generally permissible. Statements are punishable only if their content and form lack the necessary distance and respect towards the deceased person and cross the threshold into defamation.
Subjective Elements of the Offense
The subjective element requires intent. This means that the perpetrator consciously and deliberately defames the memory of the deceased. Negligence is not sufficient.
Criminal Consequences
Defamation of the memory of the deceased is subject to imprisonment of up to two years or a fine . Prosecution takes place ex officio, so it is not an application offense. The act may be attempted, but there is no punishability for the attempt.
Criminal Distinction from Other Offenses Against Honor
Unlike insult, Section 189 StGB does not require the statement to be directed at a specific audience. What matters is solely the objectivity of the action and its suitability to impair public reputation. Protection is afforded exclusively to the deceased; living persons are covered by the general offenses against honor.
Relation to Other Legal Areas
Personality Rights and Post-Mortem Protection
Under German law, personality rights do not cease with the death of the right holder. The so-called post-mortem personality is recognized in case law and literature. In civil law, close relatives in particular may assert claims for injunctive relief and damages if the violation is severe and if memory or the reputation of the deceased has been impaired in violation of human dignity.
Civil Law Protection of Honor (Section 823(1) BGB)
Violations of post-mortem personality rights can, under Section 823(1) of the German Civil Code (BGB), give rise to claims for injunctive relief and, if applicable, damages. This civil law protection of honor supplements the level of protection under criminal law.
Media Law
The depiction of deceased persons in the press, broadcast, films, or on the internet may constitute both lawful reporting and a violation of post-mortem personality protection. Here, a balance must be struck between the public’s interest in information and the memory of the deceased.
Examples of Defamation of the Memory of the Deceased
- Public Denigration: Defamatory statements or image manipulations that grossly harm the reputation of the deceased person.
- Denial of historical crimes: This is particularly relevant in connection with Holocaust denial or the trivialization of serious crimes against humanity, provided that the memory of affected victims is severely impaired.
- Defamatory Publications: Books, films, or websites that spread false or defamatory information about the deceased.
Case Law and Practice
Section 189 StGB is regularly applied in judicial practice to cases where the reputation of the deceased is deliberately and grossly diminished in the public eye. Courts carefully balance freedom of expression and the protection of honor. Law enforcement authorities intervene especially in cases where the social understanding of values regarding the treatment of the deceased is grossly violated.
International Comparison
Comparable provisions also exist in other legal systems (e.g. Austria, Switzerland) to protect the memory of the deceased. However, the specific arrangements and scope of protection vary, although the post-mortem personality right—especially concerning historical figures—is safeguarded under similar principles.
Summary
Die Defamation of the memory of the deceased constitutes an important part of German law protecting honor. Section 189 StGB protects post-mortem personality rights from gross denigration after death. The legal framework ensures comprehensive protection through both criminal and civil law provisions and sends a societal message of reverence and respect even beyond death. The boundary to permissible expression of opinion must always be assessed in light of the individual circumstances and applicable fundamental rights.
Frequently Asked Questions
What legal protection mechanisms exist for the memory of the deceased under German law?
Protection against defamation of the memory of the deceased is provided under German law especially by Section 189 of the Criminal Code (StGB). According to this, anyone who defames the memory of the deceased, for example through degrading or offensive statements, commits a criminal offense. In addition to criminal protection, civil law offers legal remedies in certain cases, for instance within the framework of general personality rights, which are upheld via Article 1 and Article 2 of the Basic Law. Close relatives—especially the closest family members—can take civil legal action against unlawful publications. However, protection of personality rights generally terminates upon death, so protection of memory is mainly maintained through criminal law. Furthermore, the interests of relatives are sometimes protected via their own personality rights, for example in cases involving publication of pictures of the deceased.
Who is entitled to file a criminal complaint or take legal action in the event of defamation of the memory of the deceased?
Under criminal law, prosecution for defamation of the memory of the deceased under Section 194(2) StGB generally depends on a criminal complaint filed by the relatives; “authorized applicants” include relatives such as spouses, children, and parents. If no such application is filed, official intervention can occur only if it is deemed to be in the public interest, which, in individual cases, is to be determined by the public prosecutor. Civil legal action options for relatives are limited, as general personality rights cease on death. Only in exceptional cases—such as when the relative’s own personality right is affected—do they have claims for injunctive relief, removal, or damages. For example, parents or children may act against grave insults to the deceased if their own sensibilities are severely impacted.
What statements or acts constitute the offense of defamation of the memory of the deceased?
The offense of defamation is set out in Section 189 StGB and expressly covers statements or acts that are capable of deliberately insulting or damaging the reputation of a deceased person. This includes gross insults, affronts to honor, abusive criticism, or false statements of fact that have a denigratory effect. Public exposure such as defamatory portrayals may also fall under this provision. Factual or neutral statements, as well as legitimate criticism within the bounds of freedom of expression, are not covered. The context and whether an objective third party would view the matter as defamation are always decisive; the subjective standard of the relative is of secondary importance.
What penalties are possible for defamation of the memory of the deceased?
The penalty for defamation of the memory of a deceased person is governed by Section 189 StGB. The offense is punishable by imprisonment of up to two years or a fine. In particularly serious cases or where additional offenses are involved (such as insult to living persons), a higher penalty may be imposed. In cases of first-time, minor, or conditionally culpable offenses, the proceedings may be discontinued or the penalty mitigated. The court may also impose so-called “ancillary penalties,” such as prohibiting the repetition of certain statements or publishing a judgment to restore the reputation of the deceased.
Are there exceptions to the criminal law protection of the memory of the deceased?
Yes, German criminal law recognizes exceptions to the protection of the memory of the deceased. In particular, criminal liability does not apply if the statements are demonstrably true or if they are made in the context of an overriding public interest in opinion forming or historical research. Freedom of art (Article 5(3) GG) or freedom of science may also be relevant, such as in critical historical discussions. However, the limit is always where the statement becomes abusive criticism, i.e., an attack that is no longer objectively motivated but is intentionally injurious.
How long does criminal law protection of the memory of the deceased last?
The law does not contain an explicit time limit for the period of protection under Section 189 StGB. However, case law holds that protection of personality after death does not continue indefinitely but loses significance over time. This is especially important for well-known personalities, where there is often a public interest in historical facts. After about 30 years—the duration of the copyright-related post-mortem personality right—a natural expiry of protection is commonly assumed. However, there is no official maximum period for Section 189 StGB, so defamation may theoretically be punishable even after a long time, provided that respect for the memory objectively still exists.
What is the significance of freedom of expression in the context of defamation of the memory of the deceased?
Freedom of expression under Article 5 of the Basic Law is a fundamental right and, in principle, covers statements about the deceased as well. However, this right may be restricted when weighed against post-mortem personality protection and the protection of the memory of the deceased. The decisive criterion for distinction is whether the statement is still protected by freedom of expression or already constitutes defamation within the meaning of Section 189 StGB. It is crucial to determine if the statement is based on facts, serves an objective discourse (e.g., in connection with historical reassessment), or is merely aimed at disparaging or denigrating the deceased. There must always be a balance between the personality rights or reputation of the deceased and the public interest in freedom of expression.
