The defamation according to Criminal Code (StGB) is an honor offense , in which, in contrast to the value judgment in the case of an insult ( StGB), the assertion and public dissemination of dishonorable facts is punishable. A factual assertion exists if the truthfulness of the statement can be objectively clarified, i.e. if proof is possible. This includes not only so-called “external facts”, but also “internal facts” (for example the intention to commit a crime).
For the criminal liability for defamation it is decisive that the factual assertion is "not demonstrably true", i. H. there is no proof of truth. If, on the other hand, the factual assertion is “demonstrably untrue” and the perpetrator knows that it is untrue, it is not a (supposed) defamation, but a defamation according to StGB. Defamation is, in legal dogmatic terms, a qualification for defamation.
The provision contains two variants of offense, namely “asserting” and “spreading”. The assertion of a fact within the meaning of the provision exists when the perpetrator presents the fact as he believes to be true. A spreading within the meaning of § 186 of the Criminal Code, however, occurs when the offender passes a fact as the object of foreign knowledge, without him, the fact is our own. This includes in particular the spreading of dishonorable "rumors".
Both variants of the offense must have a “third-party reference”, that is, they must be expressed “in relation to another” according to the wording of the provision. This means that the criminal offense of defamation is only fulfilled if the allegation has been made to third parties. If, however, the claim directly and only against the resulting ehrverletzten voiced person alone coming offense under § 185 of the Criminal Code into consideration.
Defamation of the utterance
The alleged or spread fact must also be defamatory , that is, have a defamatory character. This is the case when the fact expresses disregard, contempt, or disregard.
Proof of truth
The fact that the truth of the fact cannot be demonstrated is not an objective element of the offense , but an objective condition of criminal liability . This means that intent and negligence (subjective fact) do not need to extend to the "non-verifiability of the fact". A perpetrator can therefore also be punished if he himself believes in the truth and verifiability of his statement. Because proof of truth plays a significant role in many honor protection proceedings; he is admitted without restrictions.
The court must therefore endeavor to clarify the truth or untruth of the fact. If this does not succeed, this is at the expense of the perpetrator and the act is punishable because the fact remains “not proven to be true” if its untruth has been proven in court or if the proof of truth fails there. Nevertheless, this is no exception to the principle in dubio pro reo (“in case of doubt for the accused”), because this only relates to doubts about the existence of the constituent elements.
The rule of evidence of § 186 StGB is transformed into civil law tort law via § 823 Abs. 2 BGB and justifies a reversal of the burden of proof to the detriment of the defendant for claims for damages and injunctive relief . However, this does not apply to cancellation claims or if the defendant can invoke the safeguarding of legitimate interests (Section 193 StGB) (assuming sufficiently careful research). For injunctive relief claims, however , in the case of ambiguous statements, it must be taken into account in favor of the plaintiff that the person making the statement has the opportunity to express himself clearly in the future, even if there are legitimate interests.
Consequences of Claiming or Spreading
The statement (fact) must be capable of making the person contemptuous or disparaging in public opinion .
If the criminal offense has been unlawfully and culpably carried out, the offender is generally punished with imprisonment for up to one year or with a fine. However, the range of punishment increases in cases in which the act was committed publicly or by disseminating written material. If the situation is so, the offender is punished with a prison sentence of up to two years or with a fine.
It should be noted that in individual cases the act may be justified under criminal complaint . According to the case law of the Federal Constitutional Court, however, freedom of expression can not justify the safeguarding of legitimate interests if the allegations are deliberately or proven to be false.StGB - safeguarding legitimate interests, for example if the assertion of good faith was made in the course of a lawsuit or a
The public prosecutor's office will only pursue defamation and insult in the event of a public interest; for this, the legal peace must generally be disturbed beyond the person of the offended person or a particularly serious case must be present. Otherwise the proceedings will be discontinued and the injured party will be referred to the possibility of a private lawsuit ( StPO ).
Defamation is to be distinguished in particular from defamation ( German Criminal Code), which criminalizes the allegation of untrue defamatory facts against your better judgment . If a defamatory factual assertion is only made to the addressee, this is an insult according to StGB. Furthermore, defamation is related to the criminal offense of denigrating the memory of the deceased ( StGB), which criminalizes statements that are defamatory within the meaning of Sections 185, 186, 187 of the Criminal Code, which are made about a deceased person. Section 189 of the Criminal Code, however, is not intended to protect personal honor, but rather, according to prevailing opinion, primarily the sense of piety of relatives.
- Rudolf Rengier : Criminal Law Special Part II. Offenses against the person and the general public . 13th edition, CH Beck, Munich 2012, ISBN 978-3-406-61497-2 .
- Urs Kindhäuser : Criminal Law Special Part I. Offenses against personal rights, the state and society. 5th edition, Nomos, Baden-Baden 2012, ISBN 978-3-8329-6466-5 .
- See BGH, judgment of March 15, 1989 - 2 StR 662/88 - ( Memento of April 29, 2013 in the web archive archive.today ), BGHSt 36, 145 ff.
- BGHZ 95, 212 (1985)
- A cinematic implementation of this rule of evidence for English law can be found in the fictional case Sunset of Arms: Fitton v Pusey of the ITV television series Crown Court (1973).
- BGHZ 69, 181 (1977)
- BGH, NJW 1985, 1621
- BGHZ 132, 13 (1996)
- BVerfGE 114, 339 (2005)
- Decision of the OLG Munich of July 11, 2016, Az. 5 OLG 13 Ss 244/16 in the case " Freisler-comparison " = Anwaltsblatt 2016, 767 = StV 2017, 183 = NJW 2016, 2759, confirmed by decision of the OLG Munich dated May 31, 2017, Az. 5 OLG 13 Ss 81/17 = Anwaltsblatt 2017, 783 = BRAK-Mitteilungen 2017, 239 = DVBl . 2017, 979
- LTO article on the Freisler comparison
- Thomas Fischer, Commentary on the Criminal Code, 65th edition 2018, Rn. 28a to Section 193 of the Criminal Code.