Defamation and insult: honour offences and the private prosecution

Defamation under Section 111 StGB protects honour against untrue or demeaning statements of fact. It covers anyone who, in a manner perceptible to a third party, imputes to another a contemptible quality or attitude or accuses them of dishonourable conduct or conduct contrary to good morals that is capable of making them contemptible or lowering them in public opinion.

What is decisive is that the statement is perceptible to a third party, that is, it is not made only privately to the person concerned. Where the defamation is made accessible to a broad public, a stricter sentencing range is provided for.

From a legal perspective the distinction between a verifiable statement of fact and a mere value judgement is central. Only the statement of fact is amenable to the proof of truth, whereas the pure value judgement falls rather within the scope of insult.

Insult under Section 115 StGB covers anyone who, in public or before several people, insults, mocks, physically maltreats or threatens another with maltreatment. Unlike defamation, this is not about a statement of fact amenable to proof but about the demeaning statement as such.

The condition is that the statement is made in public or before several people. An insult made only to the person concerned without others present does not readily fulfil the offence in this form.

From a legal perspective the precise circumstances matter: what was said, in what setting and before whom? These questions decide whether and in what form punishability comes into question.

With defamation the proof of truth is of central importance. Under Section 111(3) StGB the offender is not to be punished if the assertion is proved true. Anyone who makes a demeaning but true statement of fact is therefore not to be punished under the statutory conditions.

Alongside this the law recognises the good-faith proof. In certain constellations it suffices that circumstances are proved from which sufficient grounds arise to hold the assertion to be true. This takes into account that a carefully researched statement should not always bear the risk of punishment.

From a legal perspective the early preparation of the evidence is decisive, both for the affected and for the accused person. Which evidence is available significantly shapes the further course.

Honour offences are in principle private-prosecution offences. This means that the public prosecutor does not act ex officio; instead, the injured party must appear as a private prosecutor (Section 117 StGB, Section 71 StPO). Anyone who sees their honour violated must therefore actively pursue the prosecution.

Connected with this are its own requirements, in particular compliance with the deadline provided for. If the injured party misses this deadline, the offence can regularly no longer be prosecuted. For certain constellations, for example statements towards officials in the exercise of their office, the law provides for special features.

From a legal perspective swift action is therefore important. Anyone considering a private prosecution should clarify the deadline and the formal requirements early so as not to lose their rights.

Where a statement injurious to honour is made in a medium, for example in the press, on the radio or online, media law comes alongside criminal law. The Media Act provides for its own claims, for example for compensation or the publication of a reply, that may come into question alongside or instead of a criminal private prosecution.

Which route fits in the individual case depends on the type of publication and on the aim pursued. If the matter is primarily about a correction, media law may be the more suitable route; if it is about criminal responsibility, the private prosecution.

From a legal perspective it is sensible to consider both levels together early, because they can complement each other and partly have different deadlines and conditions.