Content-related offences
Definition and legal nature
Content-related offences are a concept in German criminal law and refer to offences that relate to the content of certain statements, writings or representations. In contrast to so-called formal offences, where only the outward form of the act is decisive, content-related offences are based on the message or meaning of a communication, information, or representation. The criminal law protection thus refers to the content of communications and not merely to their existence or transmission.
Systematic classification
Position in the Criminal Code
Content-related offences are found especially in the Criminal Code (StGB). They typically concern central legal interests such as public order, honor, sexual self-determination, or civic loyalty. Examples include Sections 130 et seq. StGB (incitement of the people, defamation of the memory of the deceased), Sections 185 et seq. StGB (insult, malicious gossip, slander), or Sections 184 et seq. StGB (distribution of pornographic materials).
Distinction from other types of offences
In contrast to formal offences , criminal liability arises for content-related offences only if the legislator recognizes a specific, disapproved content. In the case of combination offences , both the content and the outward form play a role, for example in forgery of data relevant as evidence (Section 269 StGB). Content-related offences are also to be distinguished from endangerment offences , which penalize the mere endangerment of a legal interest, irrespective of the content of the act.
Typical groups of content-related offences
Offences protecting honor
This includes criminal statements that violate the honor of another person. The classic offences are:
- Insult (Section 185 StGB): Any expression of contempt or disregard towards a person.
- Malicious gossip (Section 186 StGB): Assertion or dissemination of facts that are defamatory and not provably true.
- Slander (Section 187 StGB): Assertion or dissemination of knowingly false facts.
Offences protecting the state
These offences protect the reputation and integrity of state organs and symbols. Examples include:
- Defamation of the Federal President (Section 90 StGB)
- Defamation of symbols of the state (Sections 90a, 90b StGB)
Offences against public order and public peace
These offences concern the safety, peace, and order of the general public. Relevant provisions are:
- Incitement of the people (Section 130 StGB): Incitement to hatred against segments of the population.
- Dissemination of propaganda materials of unconstitutional organizations (Section 86 StGB).
- Rewarding and approving offences (Section 140 StGB).
Offences involving pornographic, violent, or youth-endangering content
These particularly cover the dissemination, making accessible, and possession of certain contents to secure public morality and protect youth.
- Distribution of pornographic materials (Section 184 StGB)
- Depictions of violence (Section 131 StGB)
- Distribution of materials with child pornographic contents (Section 184b StGB)
Criminal liability and prerequisites
Actus reus and object of the offence
Content-related offences require that an act is committed in relation to a specific content described by law—this can take the form of statements, writings, images, or other media. The legally prohibited content is decisive in each case. Mere production is not punishable as long as there is no intent to disseminate or make accessible to a specific group of people, unless the law already penalizes the production itself.
Subjective element of the offence
As a rule, intention is required for criminal liability, meaning the perpetrator must know that they are expressing or disseminating a legally disapproved content. In some cases, conditional intent is sufficient.
Justifying grounds and exceptions
Many content-related offences are not fulfilled if there is a ground of justification. Particularly, the interest in freedom of expression and artistic freedom must frequently be taken into account. The weighing of these fundamental rights and the legal interests affected is carried out based on the specifics of the individual case.
Legal particularities of content-related offences
Relationship to fundamental rights
The criminal liability of offences related to expression is regularly in tension with the fundamental rights of freedom of opinion, press, and art (Art. 5 GG). The courts, especially the Federal Constitutional Court, evaluate in individual cases the relevant criminal law provisions and their application against the standard of proportionality and the significance of fundamental rights. A criminal sanction is generally only justified if serious infringements of other legal interests cannot be averted otherwise.
Circle of perpetrators and responsibility
Content-related offences are, in principle, actswhich can be committed by anyone, provided the law does not explicitly require a special group of persons. In many cases, the responsibility of media companies, book authors, or operators of online platforms is also affected.
Media law references
Content-related offences often overlap with media law issues, particularly regarding publisher liability, the Network Enforcement Act, and telemedia law responsibility for third-party or own content.
Significance for practice
Content-related offences play an outstanding role in the protection of personality rights, in combating hate speech, fake news, and other problematic forms of communication and publication, especially on the Internet. They serve to ward off dangers to legal interests of the general public, to individuals, and to the free and democratic basic order.
Development and reform trends
Digital communication and social networks pose new challenges for dealing with criminal content. The legislator has taken specific measures, especially in the field of online communication (e.g., Network Enforcement Act) and in combating hate crime. European legal acts such as the Directive on criminal content on the Internet also influence developments.
Summary
Content-related offences are significant criminal offences in German law, which always make the specific content of a statement, representation, or information punishable. The legal assessment of these offences requires a careful balancing between the protection of affected legal interests and the safeguarding of communication freedoms. The classification, handling, and further development of content-related offences are of great importance for jurisprudence, legislation, and the protection of diversity of opinion—especially in light of the challenges posed by new media structures.
Frequently asked questions
What special sentencing criteria apply to content-related offences?
With content-related offences, the particularities of the affected legal interests and the circumstances of the offence must be considered when determining the penalty. Unlike offences that protect only individual legal interests (e.g., property or bodily integrity), content-related offences primarily protect public order, public peace, or other collective legal interests. Courts in particular examine the degree of endangerment or violation of these legal interests by the specific content, for example in terms of reach, intensity, dissemination, or risk of repetition of the incriminated statement or representation. Individual circumstances of the perpetrator, such as motivation (ideological, commercial, provocative), capacity for insight, and the extent of preparation and planning, are also considered. It can also be considered an aggravating factor if the disseminated content reaches a broad public or specifically targets particularly vulnerable groups. In individual cases, a comprehensive balancing between sentencing range, degree of wrongdoing, and culpability takes place, with the limits of freedom of expression, artistic freedom, and press freedom to be carefully included.
What role does the distinction between permissible expression of opinion and punishable content play?
The distinction between permissible expression of opinion and punishable content is of central importance for content-related offences, especially in the context of fundamental rights such as freedom of expression according to Article 5 GG. The courts carefully weigh fundamental freedoms against the aim of criminal law. Criminal liability is generally excluded if the statement is a permissible expression of opinion that does not fulfil the criminal law elements; exceptions are so-called offences of opinion such as incitement of the people (Section 130 StGB), insult (Section 185 StGB), or slander (Section 187 StGB). Case law applies nuanced standards to distinguish between statements of fact and value judgments, examines the context, and focuses on the overall nature of the content. In cases of doubt, an interpretation compatible with the constitution must be made in favor of fundamental freedoms. Criminal liability only applies if the content clearly violates specific criminal law provisions and is no longer protected by the mechanisms of fundamental rights.
What forms of dissemination are criminally relevant in the case of content-related offences?
With content-related offences, not only the creation or formulation of a criminal content is relevant, but above all its dissemination, making accessible, or public presentation. Any form of passing on to third parties that is suitable for making the content accessible to an indeterminate number of people or a large group is criminally relevant. This includes traditional media such as books, leaflets, and posters as well as transmission channels in radio, television, and in particular the Internet, including social networks, messenger services, and forums. Even sharing or providing by links can fulfil a criminal dissemination offence if there is a deliberate connection to the prohibited content. Private forwarding can also be sufficient for criminal liability, depending on the circumstances, if the threshold to publicity is exceeded. The relevant provisions (e.g., Sections 130, 184 StGB) and their specific requirements must be observed.
How is intention determined in content-related offences?
For criminal liability in most content-related offences, intent is required; that is, the perpetrator must have at least accepted the criminally relevant content and the corresponding act. Determining intent is carried out according to general principles of criminal law (Section 15 StGB). It is sufficient if the perpetrator was aware of the content and its criminal relevance or considered it possible and nevertheless acted. In practice, indications such as the perpetrator’s statements, the design and context of the publication, accompanying circumstances as well as technical traces are used. For highly sensitive or obviously criminal content (e.g., child pornography, incitement to offences), a higher degree of knowledge and reflection is often expected from the perpetrator. In addition, under narrow conditions, offences of negligence can also be relevant if the law specifically provides for this (e.g., Section 184 StGB – dissemination of pornographic materials).
What is the significance of the prosecution of content-related offences in an international context?
The prosecution of content-related offences shows significant particularities in the international context, as content in the age of digital communication can be disseminated virtually without borders. This presents both substantive and procedural challenges for national law enforcement. First, it must be determined which national law applies. German criminal law also applies abroad according to Section 3 StGB if acts have an effect in Germany (so-called effects principle or ubiquity principle). Especially in the case of content hosted abroad or publications directed from abroad, the jurisdiction of German authorities may depend on whether there is a link to Germany, such as the content being accessible in Germany or directed against domestic legal interests. International legal assistance and cooperation with foreign agencies are required in many cases, but are often met with different national laws, data protection regulations, and diverging definitions of criminal content.
How can providers and platform operators protect themselves against criminal liability for third-party content?
Providers and platform operators are subject to a special liability doctrine. According to Section 10 TMG (Telemedia Act), they are generally not responsible for third-party content as long as they have no knowledge of its illegality or act without delay to block or remove access to the relevant information upon becoming aware. However, they are obliged to react immediately after receiving a notice of criminal content; otherwise, liability as a “disturber” – potentially including criminal liability – may arise. In cases of obvious and serious legal violations, a certain degree of monitoring and control is expected. Case law requires a “reasonableness test,” for example in cases of massive reports of criminal content, and differentiates between active and passive platform operators. Operators with editorial control or specific moderation mechanisms are to be held more strictly accountable than purely technical hosts. Concrete responsibility always depends on the circumstances of the individual case and the respective applicable norm.
