Criminal liability in Germany for ‘insulting a politician’?

Hardly any other criminal law provision has recently caused such heated discussions: according to § 188 of the German Criminal Code (StGB), a possible insult against a politician should lead to a considerably higher penalty than an insult in other cases.

Protected by § 188 StGB, persons in the political life of the people at all levels, including local politicians, are to be protected against insult under § 185 StGB, defamation under § 186 StGB or slander under § 187 StGB. The significantly increased penalty of up to three years for insults and up to five years for defamation and slander against politicians is particularly deterrent.

The prerequisite for a qualified insult under Section 188 of the German Criminal Code is that the insult is likely to make it considerably more difficult for the person concerned to work in public. This is particularly the case if the statement is likely to shake the trust in the integrity that the person concerned needs for his or her public work. However, this requires specific findings by the court in each case.

The District Court of Schwetzingen, judgment of 26 June 2023 – 2 Cs 806 Js 336/23, ruled that a user’s statement published in an internet forum was indeed defamatory but not punishable under Section 188 of the German Criminal Code, because, according to the court’s reasoning, a defamation as a rule, cannot be understood as objective criticism and is therefore not suitable as a rule to justify serious doubts about the integrity or probity of the political person or to question their political work. Above all, the criterion of the relevance of an insulting statement for the impairment of political activity is therefore lacking.

Specifically, the decision concerned the following facts:

“On 4 April 2022, “A.” published a public post in her Facebook timeline containing a picture of Member of the German Bundestag B. Under the headline: “B. calls for speed limits on motorways”, the post had the following content:

‘Because of their dependence on Russian raw materials, Germans should take their foot off the accelerator. That’s what B. is proposing, bringing a speed limit on motorways into play. The C-party does not want to support the course.’

On 04.04.2022 at 20.36 hrs, you publicly commented on this post under your Facebook account K. with the words: ‘Does a fat woodlouse have anything to demand?’

The criminal court came to the following conclusion:

‘According to § 188 para. 1 StGB, in order to be considered a criminal offence, the act must be likely to significantly impede the public activities of the offended political person. The statement “Has a fat woodlouse got something to demand” does not fulfil this requirement.’

In the opinion of the court, the question is whether the statement questions the integrity or honesty of the political person or casts doubt on the person’s political activities. It is true that there are isolated individuals who are receptive to questionable assertions and therefore question the political influence of the person attacked. However, this proportion is likely to be relatively small and therefore does not have a ‘significant’ effect within the meaning of the provision. The statement in question is therefore not likely to significantly impede the public activities of the person attacked. The statement does not contain any discussion of political content, but focuses exclusively on the external appearance of the injured party. A reasonable third party would therefore not doubt the integrity of the injured party or question their influence. According to the court, this is generally difficult to imagine in the case of insulting content. The inclusion of § 185 StGB (insult) in the qualification under § 188 StGB therefore appears unsuccessful. However, examples of defamation or libel are conceivable that shake the trust in the integrity of a public figure and significantly impede their public work, such as the untrue dissemination of sexual abuse allegations. In the area of defamation, however, it is difficult to imagine situations in which such a qualification would apply. However, this does not mean that public figures are unprotected, as the criminal sanction for defamatory statements under Section 185 of the German Penal Code (StGB) is guaranteed.