What a non-offensive thing offends you

Insult - Section 185 of the Criminal Code

The insult is a criminal offense according to § 185 StGB and counts to the so-called defamation offenses, since the utterance is noticeably directed against the honor of the victim. It does not have to be a statement or an act that the victim finds defamatory. It depends much more on whether an impartial, sensible third party sees it as defamatory.

What is an insult?

The "announcement of disregard or disregard by value judgments" is generally considered an insult. This does not have to be done to the person concerned, but can also be done to a third party. In any case, the opponent of the insult must be an identifiable person or a definable group of people, otherwise the statement is too general and there is no specific concern for a single person. Well-known cases should be named here, such as the group “soldiers” or “the people”, where there is no concrete concern.

It is also decisive that it is a matter of value judgments, i.e. the spoken words or actions or gestures are shaped by a subjective opinion of one's for or against. The person making the statement thus expresses his valuation of the facts.

Insults are not just swearwords or negative movements such as the middle finger or the "bird" point, but also factual words in themselves can be sufficient in individual cases. “You have a bird” or “you cheat” can allow several possible interpretations and are to be interpreted as well as imprecise job titles.

Freedom of Expression vs. Insult

What is discussed is the balance between the constitutionally anchored freedom of expression from Article 5, Paragraph 1 of the Basic Law and the general right of personality. In principle, the protection of freedom of expression is a cornerstone of the legal system, which, however, according to Article 5 (2) of the Basic Law, finds its limits in the provisions of general laws. As soon as a statement is checked in a specific individual case and in the context of the accompanying circumstances and classified as an insult or even defamatory criticism, the scope of protection of freedom of expression no longer applies.

Therefore, the statement or action must always be interpreted on a case-by-case basis. Circumstances such as the place or time, the previous behavior of the opponent, possible satire or a dispute as well as the expressiveness or intelligence of the person making the statement can be used. It should be clear that vulgar verbal battles on the football field are to be classified differently than those between politicians on a TV show or celebrities in an interview with the press.

The punishment is individual

The offense is punishable by a fine or imprisonment of up to one year. If this is done through activity, there is a fine or imprisonment of up to two years in the room.
The lawyer will regularly have the task of eliminating the allegation by including favorable circumstances for the person making the statement or of pleading for a (small) fine.

The amount of the fine can, however, also depend on the spread and severity of the insult, i.e. whether it fell in "four eyes" or in front of an audience of millions in a famous TV show, where the effect is much greater.

In many cases, therefore, the question of criminal liability is debatable. This is exactly where a well-founded criminal defense comes in. A lawyer can ensure early on in the proceedings that the right to freedom of expression is adequately observed. In many cases this can prevent an indictment and thus a public trial.

In addition to the criminal law consequences, in case of doubt the offended person is also entitled to civil law claims for damages. Here, the outcome of the criminal proceedings can have a significant impact on the subsequent action for damages. For this reason alone, it is worth contacting a criminal defense attorney early on.

Posted in Offenses in Criminal Law
Tagged under insult, defamation, freedom of expression, value judgment