Beleidigung in Germany: what penalty applies and where freedom of expression ends

This distinction carries the whole area. A fact is open to proof, a value judgment is not. Whether a statement is one or the other is decided not by the single word but by the context in which it was made.

Behind this in constitutional terms stands Art. 5 Abs. 1 Satz 1 GG: everyone has the right freely to express and disseminate their opinion in speech, writing and pictures. That right does not apply without limits. Art. 5 Abs. 2 GG names as limits the provisions of the general laws, the statutory provisions for the protection of young persons, and the right to personal honour. On the other side stands Art. 1 Abs. 1 GG: human dignity is inviolable.

What follows from these provisions is a weighing, not a list. That is why we deliberately give no catalogue of permitted or prohibited expressions. The same wording may fall to be assessed differently in a heated argument than in a prepared publication, differently towards a stranger than among acquaintances, differently in a closed chat than in an open comments section.

Two provisions supplement the weighing. § 192 StGB makes clear that proof of the truth does not exclude punishment under § 185 StGB where the existence of an insult follows from the form of the assertion or from the circumstances. And § 193 StGB exempts from criminal liability critical judgments about scientific, artistic or commercial achievements, as well as statements made in order to exercise or defend rights or to pursue legitimate interests, in so far as the form or the circumstances do not disclose an insult.

Beleidigung is prosecuted only on application (§ 194 Abs. 1 Satz 1 StGB). In the cases of §§ 188 und 192a StGB the offence is also prosecuted where the prosecuting authority considers intervention of its own motion to be called for on account of the special public interest in prosecution (§ 194 Abs. 1 Satz 3 StGB). For the disparagement of the memory of a deceased person the right to apply lies with the relatives designated in § 77 Abs. 2 StGB (§ 194 Abs. 2 StGB). Where the offence is directed against a public official during their service or in relation to their service, it is also prosecuted on the application of their superior in office (§ 194 Abs. 3 StGB); offences directed against a legislative body or another political body are prosecuted only with that body's authorisation (§ 194 Abs. 4 StGB).

The time limit is short. Where a person entitled to apply does not make the Strafantrag, the formal application for prosecution, within three months, the offence is not prosecuted for them (§ 77b Abs. 1 Satz 1 StGB). The period begins at the end of the day on which the person entitled obtains knowledge of the offence and of the person of the offender (§ 77b Abs. 2 Satz 1 StGB). It is suspended where an application for a Sühneversuch, an attempt at conciliation, is received by the conciliation body, until the certificate is issued (§ 77b Abs. 5 StGB).

To be distinguished from the time limit for the application is Verjährung, the lapse of time after which prosecution is barred. It is governed by the maximum penalty for the offence in question (§ 78 Abs. 3 StGB). For the basic form of Beleidigung and of üble Nachrede, which carries a maximum of one year, that is three years (§ 78 Abs. 3 Nr. 5 StGB); where the offence is committed publicly, in a meeting or by disseminating a piece of content, the range extends to two years and the period is five years (§ 78 Abs. 3 Nr. 4 StGB). For Verleumdung it is five years in both forms. The beginning, the suspension and the interruption of Verjährung are governed separately; the details are in our guide on limitation periods in criminal law.

Is an insult in a chat or in a comment a criminal offence? The place where the statement is made changes nothing about criminal liability, but it does change the range. § 185 StGB provides for up to two years where the insult is committed publicly or by disseminating a piece of content; corresponding increases are contained in § 186 und § 187 StGB.

What is the difference between üble Nachrede and Verleumdung? Under § 186 StGB it is enough to assert or disseminate a dishonouring fact that cannot be proved true. § 187 StGB additionally requires that the fact be untrue and that the offender act against their better knowledge.

I have received a report of an insult. Do I have to comment? No. You do not have to comment on the matter; instruction must be given about that (§ 136 Abs. 1 Satz 2 StPO). In matters about statements the context decides, and the context follows from the case file. A comment made before Akteneinsicht (inspection of the case file) works without knowledge of what it relates to.

The Staatsanwaltschaft has discontinued the proceedings and referred the matter to the Privatklage route. Is the matter over? Not necessarily. § 376 StPO concerns only the public charge. The injured person can pursue the offence themselves under § 374 Abs. 1 Nr. 2 StPO; beforehand the Sühneversuch under § 380 Abs. 1 StPO must be carried out. For both sides this begins a set of proceedings with rules of its own.