The German approach to freedom of expression and its absurd consequences

The Federal Republic of Germany is a democratic constitutional state in which basic civil liberties are protected by law and law enforcement. ...

The most important aspects of freedom of expression are mentioned in the Bonn Basic Law; they are the fundamental rights. That includes freedom of art, property, freedom of assembly, freedom of profession, freedom of opinion and other basic rights that we take for granted today. However, as history teaches us, they are not.

The German understanding of fundamental rights is characterised by a scheme that is self-evident for every law student after the second semester at the latest: these fundamental rights can be restricted, depending on the circumstances provided, or, in different terms: an encroachment on fundamental rights is permitted if there is a justification. Like the Federal Constitutional Court, every student therefore first asks in a case: is the complainant covered by the personal scope of protection of the fundamental right (does this fundamental right apply to everyone, or only to German citizens?)? Is the complainant's conduct covered by the factual scope of protection of the fundamental right? If this is the case, the question is whether there is an encroachment, in order to ask in the third step whether this is justified (different for fundamental rights of equality and fundamental rights to benefits).

Freedom of expression protects expressions of opinion: statements that have an element of evaluation are therefore covered; statements of fact are not covered by the scope of protection of freedom of opinion. Furthermore, freedom of expression can be restricted by general law, laws for the protection of minors and the right to personal honour (in the realm of defamation lawsuits).

This is also the biggest difference to the second model, namely the USA. The differences already exist in the name of the fundamental right. Unlike in Germany, in the USA we speak of the "Freedom of Speech". The First Amendment is unparalleled in its clarity. It states quite simply that the legislature may not establish a law that restricts freedom of speech. So it is the opposite of the German understanding: there cannot be any level of justification in the USA, because encroachments on freedom of speech by the state are simply forbidden by the constitution.

A brief example to illustrate the extent of the differences: "In an argument about the limits of the Basic Law, Max loses his nerve and calls his colleague Erika an idiot."

If American law applies, this rude and insulting, but essentially harmless, statement entails no consequences. If German law applies, however, Max is liable to prosecution for insult under §185 StGB. If Erika files a complaint, Max faces a fine - and if Max is a repeat offender who has been punished with the paragraph many times in the past, he may even go to prison for it.

We are talking here about a quite clear example where one can argue very well for §185 StGB. But it is much more absurd. In the 1990s, for example, the courts had to deal with the question of whether a provocative "duzen" (the German informal "you") should be regarded as an insult. The case went all the way to the Higher Regional Court in Düsseldorf. Those readers who find the case as absurd as I do can breathe a sigh of relief, because the Higher Regional Court ruled that this was not a punishable offence. 

The insult paragraph protects the legal good of honour, which is defined in various ways, which is not surprising because each of us will understand something different by honour. For example, the (probably) prevailing opinion defines honour as the "personal ("inner") value of validity accruing to a person as a bearer of spiritual and moral values, on the one hand, and the social ("outer") value of validity of a person, i.e. his or her actual good reputation in human society, on the other (definition: Urs Kindhäuser, Strafrecht BT I §22 Rn.2, 8th edition 2017; see also BGH, 18.11.1957 - GSSt 2/57, marginal no. 17).

In this context, according to the prevailing opinion, not only the honour of the individual is protected, but also that of associations of persons, such as companies, clubs, political parties, etc. It is claimed here that honour is a condition of existence in law, especially in the social, interpersonal sphere.

Even for insulting a company or another association of persons, one can be punished if a certain situation exists. This is because the prevailing opinion within jurisprudence argues that some of these associations can only function within a society if their work is not discredited, which is why they are equally worthy of protection as individuals. There are some problems with this argument, even when applied only to individuals.

On the one hand, the work, activity or even the entire person can be discredited without committing a criminal offence. So one can discredit another person even within the limits of the law. 

On the other hand, there are states in which the protection of honour has a much lower value than in the German legal system. A good example of this is the USA, where, for example, insulting someone is not a punishable offence. Yet the United States of America exists.

This part of the argumentation of the German lawyers is difficult to justify and that even with a careful interpretation of the statements... At most, one could argue that the criminal law protection of honour positively influences, or promotes, these activities and legal interests. However, this is difficult to prove.

Finally, the negative effects of such a legal system are often overlooked. As a result, it is incredibly difficult to distinguish a statement of fact from an evaluative statement. It is even more difficult to prove whether a statement is offensive: language and society are dynamic. Even if the courts are careful in their interpretation and use of criminal law (and fortunately this can indeed be said in Germany), so-called "freezing effects" arise even in a democratic constitutional state like Germany, where supposedly unpunishable statements are not made because of fear of a legal dispute, or of prosecution per se. So one prefers to be cautious and say nothing at all because one wants to avoid legal problems.

The example of the USA shows that it can be done differently. Insults, hate speech, flag burning is allowed in the USA and the state not only exists but is probably the wealthiest in the world. Criminal law is the "last resort" of the legal system and should be used as rarely as possible. In this isolated case, the American system does more justice to this principle; in others, the German system has clear advantages. We can and should learn from each other.

If one wants to achieve basic protection of honour, or of the person, against defamation and slander, civil law would be the far better alternative. It is far more important to compensate the victim for his or her damage than to put the perpetrator in prison. Because no one should be behind bars for making statements. Whoever thinks that should cast the first stone.