Hate speech is not a fixed, legally defined term. Our legal system places freedom of expression under the constitutional protection of Article 5 (1) of the German Basic Law (GG) and thus gives this right the highest priority. This includes not only value judgments, but also true factual assertions, insofar as they can serve to form opinions. Untrue statements of fact are not covered by the protection of Article 5 (1) GG. However, the right to freedom of expression does not apply without restriction: If human dignity is affected, the right of personality is violated or disparaging defamatory criticism is expressed, those affected can take legal action against this. The right to freedom of expression also takes a back seat if the criticism violates criminal law. The same applies if provisions for the protection of minors are violated.
(1) Everyone 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 radio and film shall be guaranteed. There shall be no censorship.
(2) These rights shall be limited by the provisions of general law, the legal provisions for the protection of minors and the right to personal honor.
Criminal content such as slander, insults and incitement to hatred are not covered by freedom of speech - regardless of whether statements are made online or offline. For example, hate speech can fulfill the following elements of the Criminal Code (StGB): § 111 Public incitement to commit a crime, § 130 Incitement of the people, § 185 Insult, § 186 Defamation, § 187 Defamation. Examples:
Insult under § 185 StGB
"Have fun fucking your incestuous mother, you bastard."
Incitementtohatredaccording to § 130 StGB
The offense of incitement to hatred comes into play when someone incites hatred or calls for violence against a person or group of persons on the basis of their membership in an ethnic group or religion in a way that is likely to disturb the public peace. Examples of racist posts whose authors have been fined for inciting hatred:
"I'm in favor of reopening the gas chambers and putting the whole brood in there." - (4,800 € fine - AG Tiergarten Berlin Az. 259 Cs 218/15) "I hätt nu a Gasflasche und a Handgranate rumliegen [...]." - (7,500 € fine - AG Passau Az. 4 Ds 32 Js 12766/14).
However, not every racist comment is an incitement to hatred. In order for the courts to classify a comment as inciting the people, there must be a public. It therefore makes a difference whether a comment is made in private at a regulars' table or in the social media. On the Internet, the publicity and thus the pillorying effect is greater.
What can be the consequence of a hate speech comment?
- Private cease-and-desist letter
- Out-of-court warning with penalty-based cease-and-desist declaration, if necessary by lawyer's letter
- Civil injunction and/or award of damages, possibly even compensation for pain and suffering
- Deletion of the comment on the platform
- Reimbursement of opposing attorney's fees
- Payment of court costs
- Criminal complaint/criminal conviction to fine or imprisonment
- Termination of employment
- Temporary or permanent expulsion/suspension from school
How can I identify the authors?
Harassment on the Internet is often blatant with real names, home or employer address. Even anonymity through nicknames does not protect against legal prosecution. The authors almost always leave traces (IP address, disclosure of name and photos in social networks) that make identification possible after the fact.
What steps can I take as a person affected?
If the hate comment is directed against you, the first step should be to contact the platform provider and ask them to delete the comment. They should also consider legal options. The authors can be prosecuted under both civil and criminal law. In the case of serious hate speech comments, criminal charges can be brought. The police and the public prosecutor's office are responsible. In addition to the possibility of going directly to a police station, there is also the possibility of reporting hate comments via the online police station of the respective federal state.
Where can I report violations of youth protection regulations?
Network Enforcement Act
In order to encourage social network providers to process complaints about hate crime and other criminal content more quickly and comprehensively, the Act to Improve Law Enforcement in Social Networks (Network Enforcement Act, or NetzDG for short) came into force on October 1, 2017. Since then, platform providers such as Twitter, Facebook and YouTube have been obliged, among other things, to remove or block "obviously punishable content" within 24 hours of receiving the complaint. If operators systematically fail to meet their obligations, they face heavy fines. More information on the NetzDG is available here.
Anyone who has been the target of hate speech and wants to report it to the police faces the challenge of having to secure the evidence. Our checklist shows step by step how to do this.