Defamation Law In Germany
Germany's defamation laws are among the most draconian in Europe and do little to protect a newspaper's free speech rights. There is probably no developed, democratic country in the world with weaker free speech and free press protections. Some non-democratic countries protect free speech more vigorously than Germany does.
In Germany, you usually don't even need to hire your own lawyer to sue someone for defamation. Instead, often a government prosecutor will bring criminal charges at public expense against someone who allegedly defamed you.
Roughly two hundred thousand criminal defamation cases are investigated by law enforcement each year in a country with about 25% of the population of the United State.
Merely insulting someone in public in Germany is a misdemeanor (confirmed here) and such cases are seriously investigated when they involve high government officials including foreign ones. For example:
In 2007, a Swiss citizen living in Bavaria was convicted of insulting
Swiss President Micheline Calmy-Rey and sentenced to pay a criminal
fine.
Similarly:
The Beleidigunggesetz, or law protecting people against insults, isn’t
always enforced, but certainly can be. “The law against insulting
another person in public has been on the books since 1871, and it can
be taken quite seriously in Germany,” said Volker Schmitt, a lawyer
based in Berlin.
Paragraph 185, Section 14 of the criminal code still reads almost
exactly as it was written 145 years ago: “An insult shall be punished
with imprisonment not exceeding one year or a fine and if the insult
is committed by means of an assault with imprisonment not exceeding
two years.”
“The law is designed to protect people’s honor,” said Karsten Gulden,
a lawyer who specializes in the issue. “Respect for people and their
reputation enjoys legal protection, and shouldn’t be verbally
violated.”
There were 218,414 cases of insults filed with prosecutors in Germany
in 2015, down slightly from 225,098 in 2014, but far above numbers of
around 150,000 recorded a decade ago. Americans and other foreigners
living in Germany sometimes run afoul of the law, unaware of it, and
end up being called into police or prosecutor’s offices to explain
their side of the story, before their cases are usually dismissed.
Hardly anyone ends up in jail for insulting their neighbor in the
midst of a heated dispute, or for flashing the middle finger — the
Stinkefinger, or “stinky finger,” as Germans call it — at another
motorist in heavy traffic. But cases do wind up in court and fines are
sometimes handed down.
In a precedent-setting 1995 ruling, a Schwaebisch Hall court awarded a
man 460 euros over racist comments against his wife, who is black. In
1997, a boss who called a pregnant employee “Germany’s laziest worker”
in an in-house magazine was fined 2,500 euros. In 1998, a court in
Heilbronn awarded a police officer 350 euros after another person
called him a “wanker.”
It is a felony punishable by up to two years in prison to speak ill of the dead in Germany, even if the statement is true.
This includes statements made on the Internet (via a link above):
The law extends to insults made online as well. “If someone makes
comments on the Internet that violate the law, German authorities have
the right to obtain data from the providers about the person who made
the comments in order to go after the perpetrator,” said Gulden.
A Berlin court awarded one person 8,190 euros in 2011 for insults
published against him in social media; in a 2012 case, a trainee who
made disparaging remarks about her boss on Facebook had to pay 2,500
euros in damages. A student accepted a 5,000 euro out-of-court
settlement in 2013 for racist remarks made in a rap song about him
posted on YouTube. The 13-year-old's family had originally demanded
14,000 euros in court.
Freedom of the press as it is known in North America (or even the much diminished version of it that exists in the U.K.) is basically non-existent in Germany.
Lets say Tom posts an article and mentions that John was sued 3 months
ago. Can John then go ahead and sue Tom for Libel if John was sued 5
months ago claiming it hurt his reputation?
Anybody can sue anyone for anything.
Would they win? Probably not.
Even under Germany's draconian defamation and insult laws, an inaccuracy has to be material, there would have to be proof of damages for a statement that isn't reputation harming on its face, and generally criminal defamation suits wouldn't be available unless the person making the false statement did not intentionally. One would need more facts to demonstrate why a seemingly slight inaccuracy could give rise to liability or harm someone's reputation.
Defamation Law In The United States
In contrast, in the United States, criminal defamation prosecutions are exceedingly rare, and even civil lawsuits alleging defamation are uncommon.
Only one in three U.S. states has any criminal defamation statute and those are rarely used. One average three criminal defamation cases are prosecuted per year in the entire United States, and only about 15% of those prosecutions result in convictions (about one every other year in the entire United States), usually with misdemeanor punishments. Only one person in the entire United States is actually incarcerated pursuant to a criminal defamation conviction every four years, on average. The modern trend is to repeal the remaining criminal defamation statutes.
Between 1992 and August 2004, 41 criminal defamation cases were
brought to court in the United States, among which six defendants were
convicted. From 1965 to 2004, 16 cases ended in final conviction,
among which nine resulted in jail sentences (average sentence, 173
days). Other criminal cases resulted in fines (average fine, $1,700),
probation (average of 547 days), community service (on average 120
hours), or writing a letter of apology.
Adjusted for population, the U.S. rate of criminal defamation convictions would be equivalent to three criminal defamation convictions in Germany's entire post-WWII history.
In the U.S., in a lawsuit against a media defendant, to prevail in a defamation lawsuit it is generally necessary to show not just that the statement was false, but that it was made with "actual malice" (i.e. knowing that it was false or with reckless disregard as to its truth or falsity). A statement made in good faith (e.g. with a disclosed source) is not actionable even if it is false and causes great harm to someone's reputation.
Many categories of statements are immune from liability under U.S. law, because they are not statements of fact that can be proven to be true or false. For example, there is generally near complete immunity from liability for insults or statements of opinion.
Indeed, there are some situations where even false statements of fact that relate to a person's reputation are protected from liability. These include most statements about politics.
In theory, the U.S. Constitution allows for criminal defamation prosecutions in almost any circumstance where civil liability would be permitted, but in practice, these prosecutions are vanishingly rare.
Defamation claims in the U.S. arise from state common law and state law also often disfavors such claims. For example, while most torts in Colorado have two or three year statutes of limitation, the statute of limitations for defamation in Colorado is one year and courts don't hesitate to dismiss such cases prior to trial to nearly the same extent that they would in other kinds of tort cases.
Also, in general, notwithstanding a historical concept of "negligence per se" that allows an award of damages without proof of actual harm to reputation causing economic harm for certain kinds of statements, U.S. Constitutional law now generally requires proof of actual damages in a suit for defamation against a media defendant.
Many U.S. states have Anti-SLAPP statutes (for strategic lawsuits against public participation) which seriously penalize parties that bring meritless defamation lawsuits (in light of high thresholds for liability for such lawsuits).
