Public offense

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In German criminal and civil law, offenses of expression , including content offenses , are all offenses that sanction the dissemination of illegal statements . The summary of several facts as offenses of expression connects to the peculiarity of the degradation of a person through language or signs as a means of communication.

Criminal law

The offenses are not summarized in a separate section of the Criminal Code . Rather, their spectrum ranges from insults and the publication of extremist ideas such as sedition to the exchange of child pornographic image and video files in file sharing sites or closed IT user systems.

In general, offenses against statements presuppose a public statement of whatever kind with a legally disapproved content. This statement can disregard third parties, for example in the case of honor crimes , the denigration of the state and its symbols ( § 90 StGB), the insult of organs and representatives of foreign countries ( § 103 StGB), the abuse of denominations, religious societies and ideological associations ( § 166 StGB) or contain the denigration of the memory of the deceased ( § 189 StGB), but also a threat, for example in § 126 StGB or the solicitation or offer of help for or the approval of criminal offenses as with the public invitation to criminal offenses ( § 111 StGB) and the reward and approval of criminal offenses ( Section 140 (1) No. 2 StGB).

It does not have to be an utterance in the conventional sense, i.e. through a spoken or written word ( dissemination of writings within the meaning of Section 11 (3) StGB). Rather, the utterance can also be made through images, gestures, symbolic actions or other activities. As a factual success it is assumed that the addressee has taken note of the statement.

In principle, verbal offenses can also be committed by publishing relevant content on web pages on the Internet.

rabble-rousing

In the offense variants of Section 130 (1) and (3) StGB, the respective utterance must be suitable for “disturbing the public peace”. In the case of Section 130 (4) of the Criminal Code, such a disruption must actually have occurred. Dogmatically , section 130 (4) of the Criminal Code does not belong to the endangered , but to the successful offenses . Certain statements can in individual cases be covered by the fundamental right to freedom of expression ( Article 5 (2) of the Basic Law).

Dissemination of propaganda material from unconstitutional organizations

Propaganda means within the meaning of Section 86, Paragraph 1 of the Criminal Code are writings within the meaning of Section 11, Paragraph 3 of the Criminal Code, the content of which is directed against the free democratic basic order or the idea of ​​international understanding and thus reveals an active, combative, aggressive tendency. Criticism, rejection and political wishful thinking are not sufficient for this. Sound and image carriers, data storage media, images and other representations are the same as “writings”.

Section 86 (3) of the Criminal Code grants an exception for purposes of civic education, the defense against unconstitutional efforts, art, science, research or teaching, as well as reporting on current events or history.

civil right

German tort law protects the personal and business reputation of the individual against the assertion and dissemination of untrue factual assertions and image publications, unless the false assertion is made to protect legitimate interests .

In civil law, too, Sections 186 and 190 of the Criminal Code apply to proof of truth . Proof of truth is provided when the person concerned has been convicted of an alleged criminal offense and the person making the statement can prove it. According to Section 193 of the Criminal Code, certain criticizing value judgments can also be justified.

The creditworthiness is specially protected in § 824 BGB. A practical application example is one of the largest German economic lawsuits, Leo Kirch's claim for damages against Deutsche Bank .

Distributor liability is significant under media law . The admissibility of statements in reporting on the private life of celebrities was specified in the so-called Caroline judgments by the case law on Caroline von Hannover .

See also

literature

  • Andreas Stegbauer: Overview of case law on propaganda and expression offenses , NStZ 2012, 79
  • Robert Stockhammer: telling offenses. On the question of legal equality of genocide denials , Zeitschrift für Genozidforschung, vol. 7, 2, 2006
  • Matthias Cornils : The place of committing crimes of expression on the Internet , JZ 1999 , 394
  • Martin Löhnig : Verbotene Schriften im Internet , JR 1997, 496
  • Jan Fluschnik: Offense and external offense - The civil law liability structure consisting of the facts, illegality and guilt , Univ.-Diss., Greifswald 2015

Web links

Wiktionary: utterance  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Eric Hilgendorf : Computer and Internet criminal law. A floor plan , Springer textbook, 2012, pp. 79–222. ISBN 978-3-642-16885-7
  2. ^ Erwin Deutsch , Hans-Jürgen Ahrens : Deliktsrecht. Unauthorized acts, damages, compensation for pain and suffering 6th edition, Munich 2014, § 19 utterance offenses ( excerpt )
  3. ↑ Thomas Fischer, Commentary on the Criminal Code, 65th edition 2018, Rn. 28a to Section 193 of the Criminal Code
  4. ↑ BVerfG, decision of December 7, 1976 - 1 BvR 460/72
  5. ↑ Schönke / Schröder- Lenckner, Criminal Code Comment , § 185 marginal note 8 for the insult in accordance with Section 185 of the Criminal Code
  6. ^ LG Hamburg, Kommunikation & Recht (K&R) 1998, 367 for a link to the offers of third parties if the linked web pages contain offensive statements
  7. ↑ Oliver Tolmein: Material law and virtual space. Criminal Law, Criminal Procedure Law and the Internet October 24, 1999
  8. ↑ BGH, judgment of December 12, 2000 - 1 StR 184/00 " Auschwitz lie " on the Internet
  9. ↑ Thomas J. Primig: The “Holocaust judgment” of the German BGH , in: Internationales Strafrecht und das Internet. Problems in the application of national criminal law to crime in cross-border data networks, (no year), p. 7 ff.
  10. ↑ BVerfG, decision of April 16, 2005 - 1 BvR 808/05 margin no. 16
  11. ↑ BVerfGE 90, 241; BVerfG - Chamber - Decision of September 6, 2000 - 1 BvR 1056/95
  12. ↑ Christoph Safferling : Dissemination of propaganda material of unconstitutional organizations. BGH, decision of April 14, 2015 - 3 StR 602/14 ( Memento of January 9, 2016 in the Internet Archive )
  13. ↑ BGHSt 46, 36
  14. ↑ BVerfG - Chamber - Decision of November 30, 1988 - 1 BvR 900/88 -; BVerwG NVwZ 1988, 933
  15. ↑ BGHZ 37, 187
  16. ↑ BGH JZ 1966, 28
  17. ↑ BGH VersR 1985, 1143; BGHZ 132, 13
  18. ↑ BGH, judgment of January 24, 2006 - XI ZR 384/03
  19. ^ Settlement in legal dispute: Deutsche Bank pays Kirch heirs more than 775 million euros Der Spiegel , February 20, 2014
  20. ↑ Thomas Hoeren, Rufus Pichler: Civil liability in the online area (no year)
  21. ↑ Jochen Koubek: Mobbing 2.0 - School Peace and School Conflicts Materials for Lesson Planning , March 18, 2008