Defamation in Germany

Rule of Law

“Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.”

Article 5 includes a caveat to this freedom however, later in Section 2.

“These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.”

In Germany, defamation is a criminal offense. The German Criminal Code, defamation is broken down into three categories, insult, defamation, and intentional defamation. The main concern in protecting its citizens from defamation, is preserving a person’s honor. The latter two of these defamation offenses can affect journalists.

Defamation is defined in section 186 as:

“Whosoever asserts or disseminates a fact related to another person which may defame him or negatively affect public opinion about him, shall, unless this fact can be proven to be true, be liable to imprisonment not exceeding one year or a fine and, if the offence was committed publicly or through the dissemination of written materials (section 11(3)), to imprisonment not exceeding two years or a fine.”

Additionally, intentional defamation is defined a section later, and has the potential for a heavier sentence:

“Whosoever intentionally and knowingly asserts or disseminates an untrue fact related to another person, which may defame him or negatively affect public opinion about him or endanger his creditworthiness shall be liable to imprisonment not exceeding two years or a fine, and, if the act was committed publicly, in a meeting or through dissemination of written materials (section 11(3)) to imprisonment not exceeding five years or a fine.”

Not only is defamation interpreted this way in Germany, but it covers more than just citizens. In Germany, defamation codes shield public officials and the president more than in the United States. If the statements “may make his public activities substantially more difficult” or “intentionally supports efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles”.

Additionally, unlike in the U.S., the court protects the dead from defamation as well in section 198 of its criminal code.

Impact on Journalists

Since defamation is a criminal offense in Germany, journalists must take caution when reporting. The German courts view that a journalist’s reporting must be working towards the public interest if the story could be damaging towards a person’s reputation. In the past, German courts have recognized the following topics as relating to public interest:

• environmental matters
• organized crime
• historical issues
• military issues
• political issues

However, if the damaging comments are considered to be more hurtful towards the subject than relevant to public interest, the court may consider them defamatory even if proven true.

Additionally, journalists in Germany have to cautiously report on politics and even foreign heads of state. The relevance of their reporting must have a strong connection to serving the public interest.

In Germany, the best defense against defamation charges is truth. If a journalist can prove that their reporting was in the public interest and is true, they have more protection against defamation.

Tips

• Defamation is a criminal offense in Germany, and does not have to malicious intent to be considered defamatory.
• Defamation in based in hurting a person’s honor, so even the dead can be defamed.
• Truth is the best defense for defamation accusations.