Honor offense
In criminology and comparative criminal law, an act of honor , also an act of defamation , is an act that is directed against the honor of another.
Right families
If one disregards Roman law, to which honor as a protected property in the strict sense was alien, the various legal doctrinal constructions for the protection of honor can be divided into three large groups:
- The honor offenses are differentiated according to whether they are characterized by a factual assertion or a value judgment, as in German and French criminal law .
- The offenses are classified according to whether they are committed in the presence or absence of the injured person, as in Italy.
- The common law finally differs according to whether the libel committed in writing or orally.
Roman law
In the strict sense of the word, Roman law knew no protection of honor; The honor as an asset under criminal law did not exist, but was reflected in the wide offense of personal injury , the iniuria . The iniuria was conceivable as a verbal injuria, which roughly corresponds to the honor offenses, or as a real injuria, i.e. as a bodily harm offense.
Germany, Switzerland and France
The German and French law to focus its consideration on whether the defamatory statement is based on a statement of fact or a value judgment. The defamatory value judgment is penalized as injure ( Art. 29 of the Freedom of the Press Act of July 29, 1881) or insult ( Section 185 of the Criminal Code ), the assertion of fact as defamation ( Art. 29 of the Freedom of the Press Act of July 29, 1881) or defamation ( § 186 StGB); the defamation ( § 187 CC) is, in this design a special case of defamation.
Italy
The conception of Italian law is based on the idea that it is easier for the injured to defend his honor if it is violated in his presence. Accordingly, it differentiates between ingiuria ( Art. 594 Codice penale ) in the presence of the injured and diffamazione ( Art. 595 Codice penale) in the absence of the injured.
Common law
In the common law countries (including England, Ireland, USA, Australia) the criminal prosecution of defamation is much less pronounced than in civil law countries . Often the injured party is referred to the civil law damage claim. In England (unlike in many states of the USA) the protection of civil law norms is not the honor of the injured person, but the maintenance of public peace and the protection of the injured person's property.
If the defamation is committed in the form of the slander, that is, verbally or through gestures, there is no criminal liability. The slander is merely a tort that leads to compensation if there is evidence of financial damage suffered, the so-called special damage . To be able to inspect the libel , the violation must be committed in writing or in any other permanent form. Under civil law, libel leads to the success of the lawsuit even without proof of financial loss . Libel is also always criminally relevant; a distinction private libel of public libel, touches of and public interests.
Legal history
In old legal codes , e.g. B. in the town charter of Laufenburg in Switzerland from 1526, or in the "Landesordnung des Erzherzogthum Österreich unter der Enns " from 1573, "Schmehung und eerverletzung" or "iniuria und Ehrverletzung" are punishable: "so should the same defender of honor [ ...] two times punished [...] zelyden guilty of syn " .
Legal-political classification
OSCE
Since the turn of the millennium, the OSCE Representative on Freedom of the Media (FOM) has intensified its efforts to restrict excessively repressive laws against defamation.
On May 24, 2002, the Commission for Security and Cooperation in Europe ( US Helsinki Commission ) stated in its memorandum: “Penal laws against libel and defamation are often justified as necessary defense against alleged abuse of freedom of expression. However, they do not conform to OSCE norms and their application constitutes a violation of the right to freedom of expression. "
In 2004 a study by the Office of the OSCE Representative was published, which listed in more detail individual criminal and civil law provisions that the Representative considers to be in need of reform.
Council of Europe
In a similar way, the Council of Europe is working to decriminalize the prosecution of honor crimes. The Steering Committee for the Media and New Communication Services (CDMC) has carried out research to align the defamation laws with the case law of the European Court of Human Rights, taking into account the issue of decriminalization of defamation.
On June 25, 2007 the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly tabled a proposal for a resolution on the decriminalization of libel. On October 4, 2007, Recommendation 1814 (2007) on the decriminalization of libel was adopted in the Parliamentary Assembly.
literature
Comparative law
- Georg Nolte: Protection against offense in the free democracy: A comparative study of the legal situation in the Federal Republic of Germany, in the United States of America and according to the European Convention on Human Rights . Springer, Berlin 1992, ISBN 3-540-55612-5 .
- Andrew T. Kenyon: Defamation: Comparative law and practice . UCL Press, London 2007, ISBN 978-1-84472-021-7 .
- Gerhard Simson and Friedrich Geerds : Crimes against the person and moral offenses in a comparative law perspective . CH Beck, Munich 1969, III. Part - offenses against honor, p. 299-345 .
Legal history
- Karl Binding : Honor and its vulnerability . In: The honor. The duel. Two lectures . Leipzig 1909, p. 5 ff .
criminology
- Hilde Kaufmann : Insult and false accusation . In: Alexander Elster (greetings), Rudolf Sieverts and Hans Joachim Schneider (eds.): Concise dictionary of criminology . tape I . De Gruyter, Berlin 1966, p. 75 ff .
See also
Individual evidence
- ↑ a b c d e Gerhard Simson and Friedrich Geerds : Crimes against the person and moral offenses in a comparative law perspective . CH Beck, Munich 1969, III. Part - offenses against honor, p. 299-307 .
- ↑ The memorandum of the Commission on Security and Cooperation in Europe volume 35 No 12 of May 24, 2002 ( Memento of the original of July 10, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ IRIS 2006-10: 2/1
- ↑ CDMC (2005) 007, Final Version, Strasbourg, March 15, 2006
- ↑ Towards decriminalization of defamation ( Memento of the original from March 12, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
