Hate Speech Online and Juveniles: What Section 283 StGB Has Criminalised since the HiNBG

The trigger is usually a letter from the prosecution, a summons to the police, or notification through the school. Sometimes the first indication arrives by way of a self-report from the platform, TikTok, Meta platforms, or Discord meet their KoPl-G and DSA obligations and now report manifestly unlawful content swiftly. The shock is considerable, particularly when the charge is "incitement" and the son or daughter cannot themselves explain what was actually meant.

From a defence perspective, three things matter most in the first 72 hours. First: your child does not have to make a statement on the substance to the police. Provide personal details, yes. Remain silent on the substance until defence counsel has had file access. Anyone who tells "the whole story" in the heat of the moment creates accusations that can hardly be corrected later. Second: where the charge is Section 283 para. 3 StGB, that is, resulting violence from the post was demonstrable, the involvement of defence counsel is mandatory; this counsel cannot be waived (Section 39 para. 1 no. 1 JGG). Even for pure misdemeanour charges under paras. 1, 2, and 4, the early involvement of defence counsel is the decisive lever for diversion. Third: the post should be deleted as soon as the defence releases it from a procedural perspective, according to the settled case law of the OGH, Section 283 is to be classified as a continuing offence, so that punishability persists for as long as the post remains perceptible.

Even "just one sticker" or "just one re-post" can already fulfil the offence, Section 283 para. 4 StGB independently criminalises the endorsing or justifying distribution of hate material. Which special rules the Juvenile Justice Act provides for this entire proceeding, from the right to silence through mandatory defence to the trusted adult under Section 37 JGG, is set out in detail in the overview article.

The offence of incitement was significantly redesigned by the Hass-im-Netz-Bekämpfungsgesetz (HiNBG, BGBl. I 148/2020) and has applied in the version in force since 1 January 2021. The reform aim was to adapt to the online reality: extension of the protected groups, clarification of the online application, and in particular a lowering of the public-reach threshold for the basic offences.

Structure of the offence. Section 283 StGB has four paragraphs. Para. 1 (misdemeanour, imprisonment up to 2 years) covers a person who, publicly in a way that makes it accessible to many people, either calls for violence against a protected group or incites to hatred (no. 1), insults a protected group or a member of such a group in a manner violating human dignity (no. 2), or endorses, denies, grossly trivialises, or justifies genocide, crimes against humanity, or war crimes, provided this is suitable to incite to hatred (no. 3). Para. 2 (misdemeanour, up to 3 years) increases the sentencing range where the offence is committed in a printed work, in broadcasting, or in a way that makes it accessible to a wide public. Para. 3 (an indictable offence, 6 months to 5 years) applies where the offence actually causes other persons to commit violence against members of a protected group. Para. 4 (misdemeanour, up to 1 year or 720 day-fines) covers the endorsing or justifying distribution of hate material.

Protected groups. Covered are churches and religious societies, as well as groups defined by race, colour, language, religion or worldview, nationality, descent or national or ethnic origin, gender, physical or mental disability, age, or sexual orientation. The HiNBG sharpened the catalogue compared to the previous version; the group must be recognisable from the post itself.

Threshold questions, the central defence lever. The terms "many people" (para. 1) and "a wide public" (para. 2) are not quantified in the wording of the law. According to settled case law and academic writing, the rule of thumb is around 30 persons for "many people" and around 150 persons for "a wide public". These thresholds are interpretive standards, the burden of proof for the actual reach at the time of the offence lies with the prosecution. From a defence perspective, every screenshot of the group header at the time of the offence, every documentation of follower counts, every record of public or private profile settings counts.

Mens rea. Conditional intent under Section 5 para. 1 StGB suffices, the defendant must seriously consider it possible and reconcile themselves with the fact that the post has hate content, that it can reach many people, and that the discrimination feature is decisive. With teenagers who copy memes without an awareness of the discrimination link or the reach, conditional intent is often not readily demonstrable, a central defence lever. A written submission to the prosecution with detailed mens rea argument can lead to a termination on the ground that the conduct is not punishable under Section 190 no. 2 StPO.

Continuing offence. According to the settled case law of the OGH, Section 283 StGB is to be classified as a continuing offence, punishability persists for as long as the post remains perceptible. Practical consequence: the limitation period only begins running on deletion; defence lever: organise swift deletion already in the first consultation in order to end the offence period. Mode of prosecution. Public-prosecution offence; no authorisation by the injured person is required.

Freedom of expression under Article 10 ECHR and Article 13 StGG protects also provoking, shocking, and disturbing statements, that is settled case law of the ECtHR and the Austrian Constitutional Court. Freedom of art and science under Article 17a StGG goes even further: satire, caricature, irony, and artistic engagement with political or religious themes enjoy constitutionally qualified protection. Section 283 StGB finds its limit where the statement leaves these protected areas, for instance because it is to be understood as a serious call for violence, or as an insult violating human dignity, going beyond what a satirical statement recognisably conveys.

Private conversation versus public statement. Section 283 StGB requires public character, perceptibility for an indeterminate or at least larger circle of persons. A direct message between two persons, a phone call, or a confidential letter do not fulfil this element. The line is crossed where a statement leaves the closed two-person or small-group context, for instance because a member of an apparently private chat carries the content outside. From a defence perspective, the private-conversation assumption is an important lever where the client credibly assumed that they were posting in a closed small group.

Satire, irony, quotation. Where a post is recognisably meant satirically, ironically, or as a quotation, for instance with quotation marks, a disclaimer, or distancing, conditional intent regarding the hate content regularly fails. Here too: what matters is the objective declarative value from the perspective of an average observer, not only the inner mental state of the poster. The defence works out the indicators of distancing systematically.

Mem reproduction. The most common type of constellation in juvenile defendants: a sticker, an image meme, or a video is forwarded without the poster having consciously grasped the discrimination link. "Got it from a friend, thought it was funny, did not think about the meaning." From a defence perspective, this constellation is precisely the central mens rea lever: where it cannot be demonstrated that the defendant grasped the discrimination feature as such, conditional intent regarding an essential element of the offence is missing. An early written submission to the prosecution can lead to termination on the ground that the conduct is not punishable.

Section 188 StGB criminalises the public disparagement or mockery of persons or things which are the object of veneration of a church or religious society existing in Austria, likewise the disparagement of a religious teaching, a legally permitted custom, or a legally permitted institution. Requirement: the conduct must be suitable to give rise to legitimate offence. Sentencing range: misdemeanour, imprisonment up to 6 months or fine up to 360 day-fines (adults); in juvenile criminal law halved to up to 3 months or 180 day-fines.

ECHR conformity. The European Court of Human Rights confirmed Section 188 StGB as Convention-proof in the case E.S. v. Austria (judgment of 25 October 2018, App. no. 38450/12). The ECtHR held that a conviction for a public reference to the Prophet Mohammed as a "paedophile" did not constitute a violation of Article 10 ECHR, provoking depictions of religious objects of veneration may be seen as a malicious violation of the spirit of tolerance, provided the sanction remains proportionate. Section 188 StGB is thereby legally secured as an offence under Convention law.

Practical relevance for juveniles. Section 188 StGB rarely arises in advisory practice as the main charge. Two constellations are common, however: anti-religious memes and caricatures in school chats, for instance degrading Mohammed caricatures or crucifixion memes with mockery, and TikTok trends where the mockery element regarding religious symbols predominates and is not designed as satirical opinion-formation. In subsumption, there is often joint fulfilment with Section 283 para. 1 nos. 1 or 2 StGB, because religion is one of the group features protected there.

Defence levers. Three lines are sustainable in practice: First, freedom of satire and art under Article 17a StGG and Article 10 ECHR, satirical engagement with religion is constitutionally protected, provided it does not tip into a malicious violation of the spirit of tolerance within the meaning of the E.S. v. Austria case law. Second, the element "legitimate offence", an objective-normative standard; with low reach and a recognisable joke or meme character, often to be denied. Third, the subsidiarity in joint fulfilment with Section 283 StGB, where Section 283 is fulfilled, Section 188 regularly recedes as an accompanying provision; the main sentence follows from Section 283.

A side note: for posts with a concrete NS reference, Holocaust trivialisation or NS symbolism, the Prohibition Act 1947 may additionally come into play. The Prohibition Act is its own constitutional act with a substantially higher sentencing range; a detailed treatment exceeds the scope of this article and would be reserved for a separate follow-up article.

Incitement constellations regularly fulfil several offences at the same time. The most important accompanying provisions in compact form, the article focuses on Section 283 StGB, but the following offences are regularly examined alongside in the defence.

Section 107a StGB persistent pursuit (stalking). Version in force BGBl. I 105/2019, in force since 1 January 2020. Offence: continued pursuit of a person over a longer period with impairment of the way of life. In the hate context, this is increasingly relevant for politically or discrimination-motivated online pursuit of climate activists, politicians, teachers, or fellow pupils. Sentencing range para. 1 up to 1 year (adults), para. 3 aggravated up to 3 years. Defence lever: a wave of 24 hours is regularly not stalking, the provision requires several individual acts over a longer period. See the cyberbullying article, which fully covers the offence.

Section 107 StGB serious threat. Version in force BGBl. 60/1974 with adaptations by the StRÄG 2015 (BGBl. I 112/2015). Offence: threat with an injury to body, freedom, honour, or property, suitable to instil well-founded apprehension in the threatened person. Sentencing range para. 1 up to 1 year; para. 2 aggravated (e.g. death, longer deprivation of liberty) 3 months to 3 years. In the hate context, often combined with Section 283 para. 1: "We will come for you" + group reference. Defence lever: can the statement be understood as a seriously meant threat, or does it remain hate rhetoric without a concrete addressee link, as is often the case with memes?

Section 115 StGB insult. A person who, publicly or before at least three persons, insults, mocks, mistreats physically, or threatens with physical mistreatment. Sentencing range: misdemeanour, up to 3 months' imprisonment or up to 180 day-fines. Private prosecution offence under Section 117 StGB, the injured person must bring the action themselves, not the prosecution. With hate posts often brought in by the victim alongside; defence lever: private prosecution routes are resource-intensive for the victim and often lead to termination because of the procedural burden.

Section 297 StGB false accusation. Untrue assertion that the accused has committed a punishable act, with intent to bring about official prosecution. Sentencing range para. 1 up to 1 year; para. 2 aggravated (threat of a sentence above 1 year imprisonment) 6 months to 5 years. In the hate context rarely, arises where hate posts contain a concrete fabricated criminal accusation against the victim ("he sold drugs, the police have been informed" as a hate-campaign element).

Concurrence. Several offences regularly arise at the same time. A class chat post with hate incitement, a concrete threat, and a discrimination link can fulfil Section 283 para. 1 + Section 107 + Section 115 StGB in parallel. The concurrence questions are relevant for both subsumption and sentencing, in defence, we examine them systematically.

The threshold question of "many people" (around 30) or "a wide public" (around 150) is the central defence lever for juvenile defendants. Which platform constellations correspond to which threshold is, in advisory practice, surprisingly often unclear, and that is precisely where defence strategies come in.

WhatsApp, Signal, Telegram groups, closed. Closed groups under around 30 members regularly do not reach the threshold "many people" under Section 283 para. 1 StGB, according to settled case law and academic writing. Subsidiary offences are then to be examined: Section 107c StGB (threshold "a larger number of persons", in practice about 10, see the previous article), Section 115 StGB (private prosecution from 3 persons). Groups with around 30 to 149 members, typical upper-school class chats, sports club groups, year-group chats, can fulfil Section 283 para. 1 StGB, but not yet para. 2 (a wide public). Groups with around 150 or more members, public Telegram channels, Discord servers of larger reach, can fulfil paras. 1 and 2.

TikTok, Instagram, Snapchat, stories and posts. With a public profile, the reach is not factually limited, Section 283 para. 2 StGB is regularly fulfilled as soon as the post actually achieves a reach of around 150 or more. With a private profile with limited follower count, para. 1 is possible, para. 2 only where the threshold is actually exceeded. Stories and reels with time-limited visibility (24 hours for stories) change the calculation of the offence period, relevant for the continuing-offence argument.

Stitches, re-posts, viral reach ex post. A particular constellation: an original post is re-posted, stitched, or picked up as a meme by third parties on a mass scale, the reach explodes ex post. From a defence perspective, what matters now is the intent horizon at the time of the offence: the defendant could only reconcile themselves to what was foreseeable at the time of their own post. A viral reach explosion later triggered by third parties cannot, without more, be attributed to the defendant as conditional intent regarding Section 283 para. 2, the subsumption regularly remains at para. 1.

Anonymous accounts. Platforms are obliged under the KoPl-G and, since 17 February 2024, under the DSA Accompanying Act (BGBl. I 182/2023) to disclose the user data of anonymous posters on a court order. Anonymity does not protect, anyone who thinks an anonymous account protects them from prosecution is mistaken. The defence lever lies not in the supposed anonymity itself, but in the chain of evidence: multiple persons on the same end device or WLAN connection? Account assignment via email or telephone number unambiguous, or manipulable via recovery routes? Has the prosecution secured, alongside the IP, also the device identification?

Private conversation versus small group. A direct message between two persons is a private conversation, Section 283 StGB not applicable. Small groups under 10 persons fulfil neither Section 283 nor, as a rule, Section 107c StGB; at most Section 115 StGB remains as a private prosecution offence. Small to mid-sized groups of 10 to 29 persons can fulfil Section 107c StGB, not Section 283. Mid-sized groups of 30 to 149 open up Section 283 para. 1; from around 150 also para. 2.

Four anonymised case vignettes that show typical defence levers, from the threshold argument through the mens rea test to an indictable offence under para. 3 and a Prohibition Act link.

A, WhatsApp class chat with 25 members, degrading religion stickers. A 16-year-old posts in a 25-member class chat group stickers with degrading Mohammed caricatures and comments on them with group-related insults. Two Muslim fellow pupils are in the group; one mother files a criminal complaint. Subsumption: Section 283 para. 1 no. 2 StGB (insult because of religion), but the threshold question is not clearly reached at 25 persons. Subsidiary Section 188 StGB (religious disparagement), Section 115 StGB (insult, private prosecution), Section 107c StGB (cyberbullying, threshold of about 10 reached). Likely outcome: with a first-time incident, swift deletion, and remorse, diversion under Sections 6, 7 JGG with an anti-racism workshop and restitution as a condition, no entry in the criminal record.

B, TikTok stitch with antisemitic mockery, 200,000 views. A 17-year-old stitches a video of a prominent Jewish influencer and comments with antisemitic stereotypes. Within 48 hours, 200,000 views and over 8,000 comments. Several NGOs file criminal complaints. Subsumption: Section 283 para. 1 no. 2 + para. 2 StGB (a wide public clearly reached). Examine joint complaint Section 107a StGB para. 2 (targeted pursuit of the influencer). Likely outcome: sentencing range JGG-halved up to 18 months; diversion possible, but more reluctantly given the reach and public attention. Victim-offender mediation, fine, probation, mandatory anti-antisemitism workshop. Where diversion is refused, a conviction relevant for the criminal record is not excluded.

C, Discord server with 80 members, Holocaust trivialisation. A 16-year-old posts repeatedly, in a Discord server (80 members, gaming community), memes that depict the Holocaust as "exaggerated" and "a business". A server member reports the content to Discord, the server is suspended; a criminal complaint follows. Subsumption: Section 283 para. 1 no. 3 StGB (trivialisation), additionally Prohibition Act 1947 (NS re-engagement, its own constitutional act, separate charge examination). 80 members fulfil the threshold "many people"; para. 2 not reached. Likely outcome: Section 283 para. 1 + Prohibition Act in concurrence. The Prohibition Act has a substantially higher sentencing range. Diversion for the Prohibition Act is difficult, but in juvenile criminal law not excluded. Mandatory defence immediately.

D, School chat with 60 members, teacher as hate target because of disability. A class chat (60 members upper-school year group) posts memes about a mobility-impaired teacher, with ableist comments. The teacher learns of it and files a criminal complaint. Subsumption: Section 283 para. 1 no. 2 StGB (insult because of disability, one of the protected features), threshold of 60 reached. Section 107c StGB (cyberbullying) additionally fulfilled; Section 115 StGB insult as annex. Likely outcome: with a first-time incident and remorse, diversion with victim-offender mediation (reconciliation with the teacher), fine, condition of a diversity workshop. Involvement of Child and Youth Welfare. School-law consequences such as a disciplinary exclusion may follow separately, criminal proceeding and school proceeding run in parallel.

The Hass-im-Netz-Bekämpfungsgesetz did not only redesign the criminal offences; it also introduced civil-law and media-law accompanying mechanics that parents of juvenile defendants must understand. Three mechanics are central.

Court order proceeding for cease-and-desist, Section 549 ZPO + Sections 18b, 18c MedienG. Since the HiNBG, the district court can issue a temporary cease-and-desist order without an oral hearing where the submissions show conclusively a violation of human dignity by electronic communication. Object value flat-rate 5,000 euros. Parents of juvenile defendants often receive, as the first shock letter, a court cease-and-desist order even before any criminal complaint. That is not a criminal proceeding, but a civil one, but counsel obligation and a 4-week deadline to lodge an objection apply. Anyone who misses the objection has a final cease-and-desist title with enforceability under Section 71 EO. Defence lever: have the content deleted before enforcement begins; for a justified expression of opinion, lodge an objection on the basis of Article 10 ECHR.

Independent compensation proceeding, Section 8a MedienG. The HiNBG extended Section 8a MedienG: where personality rights are violated in electronic communication, the victim can pursue an independent compensation proceeding against the media owner, even where no criminal prosecution is running. Damages were increased by the HiNBG (up to 100,000 euros in extreme cases, regularly 5,000 to 20,000 euros). With juvenile defendants, parents as legal representatives are jointly liable for damage claims under Section 1325 ABGB in conjunction with Section 8a MedienG. Begin settlement negotiations early, the settlement can be used as a component of diversion (victim-offender mediation, restitution) in the criminal proceeding.

User-data disclosure and identity protection, Section 7a MedienG, KoPl-G, DSA. Section 7a MedienG protects the identity of victims and family members. By way of mirror image, platforms are obliged under the KoPl-G and, since 17 February 2024, under the DSA Accompanying Act, to disclose the user data of anonymous posters on a court order. Practically: IP address at the time of the offence → provider information → connection holder. Defence lever: where the IP address runs through a shared WLAN connection, family router, school WLAN, public café, attribution to the concrete defendant is often not possible without doubt.

Platform obligations KoPl-G and DSA. Platforms with 100,000 users in Austria must provide reporting and complaints procedures, delete content of "manifestly unlawful" character within 24 hours and otherwise within 7 days. The KoPl-G has, on 17 February 2024, been largely absorbed into the DSA; KommAustria is the supervisory authority. Defence-relevant: platforms delete quickly, which can sharpen the evidence problem in the criminal proceeding. Practical tip: in the first consultation, ask the client whether they have screenshots of the posts directed against them, without them, the defence is blind against the prosecution's collection of evidence.

Once you have understood at which thresholds a hate-online proceeding is decided, you can better classify the role of the defence. Seven typical stations, from the criminal complaint to the judgment, with the points at which we have to act from a defence perspective.

Juvenile criminal law knows four out-of-court or court-internal resolution routes that all create no entry in the criminal record, and that, in hate-online constellations, are practically always at the forefront.

Termination on the ground that the conduct is not punishable under Section 190 no. 1 or no. 2 StPO. The mildest variant. No. 1 applies where the offence is objectively excluded, for instance because the threshold is not reached (reach below 30 persons) or because of mem reproduction without a recognisable discrimination link. No. 2 applies where mens rea cannot be demonstrated, for instance with satirical or ironic distancing. Defence lever: early written submission to the prosecution with detailed subsumption and mens rea argument.

Abstention from prosecution (Section 6 JGG). For misdemeanours of minor weight, without death, without further intervention need. The prosecution is to terminate the prosecution where no special grounds of special or general prevention stand in the way. The classic lever for school-chat first-time incidents without significant outcome wrong, for instance mem reproduction in a 30-person class with swift deletion and remorse.

Diversion without an upper sentencing limit (Sections 7, 8 JGG). Unlike adult criminal law, where diversion is excluded for sentencing threats above 5 years, the JGG knows no upper sentencing limit. Even for Section 283 para. 3 StGB (an indictable offence), diversion remains possible, provided there is no serious culpability, acceptance of responsibility is present, and there are no obstacles of special prevention. In practice, in hate online: victim-offender mediation at NEUSTART (reconciliation with the affected fellow pupils, with the teacher, with the influencer), community service (max. 6 hours per day, 12 hours per week, 120 hours in total), probation with conditions such as an anti-antisemitism / anti-racism / diversity workshop, or a fine. Restitution via Section 8a MedienG can be brought in as a component of diversion, the settlement in the independent compensation proceeding is positively weighted by the prosecution in the diversion decision.

Finding of guilt without sentence (Section 12 JGG) or under reservation (Section 13 JGG). Already at the trial stage. The court establishes the finding of guilt but refrains from a sentence (Section 12) or reserves the imposition of the sentence for a probationary period (Section 13). Both routes create no criminal record in the strict sense and are not taken into account as a prior conviction under Section 31 StGB in later proceedings. For Section 283 para. 3 proceedings with an indictable offence charge in which diversion is refused, Section 13 JGG is often the priority defence route.

Active repentance (Section 167 StGB) does not apply to Sections 283, 188, or 107a StGB, these are not property offences. Restitution does, however, work as a component of diversion and as a sentencing factor, as does remorse.

When an incitement proceeding is over, parents almost always ask the same question: "Does this stay forever now?" The short answer: it depends, but with diversion and Section 12 JGG mostly no.

Criminal record. Diversion, abstention from prosecution, and finding of guilt without sentence under Section 12 JGG create no entry in the criminal record. Anyone who successfully completes diversion has no entry, not even as a blocking note. That is precisely the decisive strategic reason why diversion is, in most hate-online constellations, the priority defence goal. Convictions are entered, but with their own, shorter deletion periods under the Tilgungsgesetz.

School and apprenticeship place. The notification system of Section 33 JGG is designed for stigmatisation protection. School authorities are in principle not notified, except on a conviction to a custodial sentence of more than six months, including a conditionally suspended one (Section 33 para. 4 JGG). For hate first-time incidents with a misdemeanour charge, this threshold is practically never reached, the school learns nothing about the criminal proceeding. The position is different for an indictable offence charge under Section 283 para. 3, or for Prohibition Act constellations, where higher sentences are more realistic. If a proceeding is later terminated or ends with an acquittal, all bodies already informed receive a follow-up notification to clear the record. More on the stigmatisation protection under Section 33 JGG in the overview article. School-law disciplinary proceedings run independently of this, for hate posts against a teacher, a disciplinary exclusion may follow separately.

Working life. Hate convictions without an entry in the criminal record remain invisible to ordinary employers and training institutions. Where convictions are entered, the JGG-specific deletion rules apply, usually significantly shorter than for adults. Where there are psychological consequences for the affected victims, damage claims in the area of offences against life and limb can come at the parents as legal representatives, start settlement negotiations early.

When legal advice is mandatory. As soon as the police arrive for a house search, as soon as a summons to questioning arrives, as soon as a letter from the prosecution lands in the post box, as soon as a civil cease-and-desist order under Section 549 ZPO arrives, every one of these thresholds, from a defence perspective, justifies an immediate call to defence counsel. The first 72 hours decide on diversion or indictment; the first weeks decide on diversion or trial. For indictable offence charges under Section 283 para. 3 StGB or for Prohibition Act constellations, mandatory defence under Section 39 JGG applies anyway.

Every criminal complaint under Section 283 or Section 188 StGB deserves immediate legal advice. The thresholds of 30 and 150 persons are a central defence lever; the mens rea test for mem reproduction and satirical distancing is the second. Diversion is in juvenile criminal law practically always possible, early preparation decides.