Freedom of expression is the law in Germany. It is guaranteed in Article 5 of the , the German constitution, but it also says that this freedom has limits. For example, to protect young personal, privacy, or personal honor.
The protection of personal honor plays a particularly important role in the German legal system, says lawyer Ralf Poscher, director of the Max Planck Institute for the Study of Crime, Security and Law in Freiburg. “This originates from the time in history when notions of honor were even more important. They were then embraced by the middle classes too, and were incorporated into our legal system.”
Is libel allowed?
It is a criminal offense in Germany to insult others, and it is also illegal to spread lies that demean others. That means freedom of speech is much more restricted in Germany than, for example, in the US, says Nadine Strossen, a professor at New York Law School. A former president of the American Civil Liberties Union (ACLU), Strossen is known as a strong advocate for free speech.
“The United States First Amendment law, which is our constitutional provision that protects free speech, is one of the strongest, I think it’s fair to say it’s the most speech protective national law in the world,” says Strossen. The First Amendment prohibits laws that restrict free speech.
This also means that insults and defamatory lies are largely covered by free speech. “So if you think the message is hateful, or you think the message is extremist, or you think the message is advocating violence: Whatever negative content the message has, that alone is never going to be enough to justify suppressing it in our country.”
Denying the Holocaust is illegal
Strossen’s father survived the Buchenwald concentration camp. Nonetheless, she believes that it should also be legal to deny the . In Germany, on the other hand, it is a criminal offense to publicly deny the genocide.
This falls under what is known as “incitement to hatred.” Anyone who incites hatred or violence against certain ethnic, religious, or national groups can be sentenced to up to five years in prison.
Expressing your political opinion is allowed as long as it is not hate speech, says legal expert Poscher. “Freedom of expression and freedom of assembly protect all kinds of opinions. Even those at the extreme ends of the political spectrum.”
This is why, for example, right-wing extremist groups are allowed to hold demonstrations in Germany. “Of course, they are not allowed to cross the line when it comes to intimidation, insults, degradation, and the like, but they are certainly allowed to spread ideas that are not in line with the constitution.”
Only when those deemed as enemies of the constitution become organized in such a way that they pose a threat to democracy may the state intervene. In this case, associations and parties may also be banned. Known as ‘defensive’ democracy, the objective is to prevent Germany from becoming a dictatorship again, as it was during the Nazi era.
Is it better to ignore than to ban?
Strossen believes that all of this is well-intentioned. However, she says it would not get any closer to the goal of protecting human dignity. “I think that paternalistic approach is actually not only denying individual liberty but it is ultimately ineffective,” she said. “History shows that the best way to get attention for your message is to hope that somebody protests it and tries to shut it down.”
“A very troubling vector is the rise of the AfD,” says Strossen, referring to Germany’s far-right Alternative for Germany (AfD) party which has . “Many analysts say this is happening not despite efforts to punish hateful expression, including by leaders of that party, but precisely because of it. That increases the attention, that increases the sympathy, that increases suspicion and distrust of the mainstream parties.” Strossen believes that this is why it is better to ignore hate and agitation than to ban them. False claims can be refuted, she says.
The debates about the limits of freedom of expression have intensified since the rise of social media. It has become possible for anyone to publicly express their opinion — even if that means spreading hate and agitation.
According to a study sponsored by Germany’s Family Ministry, almost one in two people in Germany have been verbally abused online. A quarter of respondents said they have been subjected to physical violence and 13% to sexualized violence. Of those surveyed, 55% said they were less likely to take part in discussions as a result.
Ralf Poscher describes this online debate culture as “de-civilising.” “Where people are belittled, insulted, and targeted with a flood of hate comments. This also means that many people no longer participate in public debate.” But this is the basis of a vibrant democracy. There is therefore much to be said in favor of “insisting on a certain civility in public debate.”
According to Strossen, Germany is further ahead than the US when it comes to protecting speech that is sexual or involves nudity. As she put it, “we Americans are notoriously prudish.” Showing the breasts of a breastfeeding woman — that’s when the censors would intervene in the US, she says.
This article was originally written in German.
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