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The German Basic Law protects freedom of expression and freedom of the press. These freedoms are limited by general laws that “aim to protect a legal interest per se without regard to a specific opinion." Germany does not have a specific law that deals with online harassment of journalists. However, general criminal and civil law legislation on insult, defamation, stalking, and hate speech, among others, can be applied in these cases to limit freedom of speech and freedom of the press. The German government recently adopted a set of measures that would amend the Criminal Code to better capture cyberstalking and similar forms of online harassment or insult.
According to numbers collected by the organization “Reporters without Borders,” violence against and harassment of journalists in Germany rose in 2018 compared to the previous year. Most assaults took place at right-wing events or demonstrations. Assailants, among other things, destroyed the equipment of journalists or called them “lying press.” Journalists have also been victims of “doxing,” a practice where private or personally identifiable information about the victim is published online.
II. Freedom of Expression and Freedom of the Press
Article 5 of the German Basic Law, the country’s constitution, guarantees freedom of expression and freedom of the press, among other enumerated communication rights. The communication rights are not restricted to Germans; they are applicable to “every person.”
Freedom of expression covers value judgments and statements of facts, if those statements of facts form the basis for an opinion. The term “opinion” is understood broadly. Expressions of a viewpoint, the taking of a position, or the holding of an opinion within the framework of intellectual dispute fall within its scope. If the statement “contributes to the intellectual battle of opinions on an issue of public concern,” there is a presumption in favor of its permissibility. Untrue facts, however, fall outside the scope of freedom of expression.
Freedom of the press is not just a subcategory of freedom of expression; it is an independent and separate freedom under article 5 of the Basic Law. In addition to expressing and disseminating an opinion using the press, the basic right guarantees the “institutional independence of the press that extends from the acquisition of information to the dissemination of news and opinion; [ . . . ] this includes the right of persons working for the press to express their opinion as freely and unrestricted as every other citizen.”
The communication freedoms are limited by general laws, provisions for the protection of young persons, and the right to personal honor. The last two categories are generally seen as included in the category “general laws.” The Federal Constitutional Court defines “general laws” as laws that “do not prohibit or target the expression of an opinion as such,” but rather “aim to protect a legal interest per se without regard to a specific opinion.“ An example of a general law that might be relevant in the context of this report is, among others, the Criminal Code, in particular the provisions on insult, defamation, or stalking. However, these general laws have to be examined in light of the constitutional significance of the basic right they are restricting, meaning the limitations must themselves be interpreted restrictively in order to preserve the substance of the basic right (balancing of interests).
III. Legal Protection against Online Harassment
There do not seem to be any special provisions for the protection of journalists from online harassment. However, the general protections against acts of harassment can be applied. These include civil and criminal law provisions on data espionage, assault, stalking, insult, and defamation, among others.
A. Criminal Law
1. Data Espionage and Data Fencing
The practice of doxing, meaning publishing private or personally identifiable information about the victim online, could fall under data espionage or data fencing. The Criminal Code provides that persons who unlawfully obtain someone else’s especially protected data which was not meant for the perpetrators by circumventing that protection and make the data available to themselves or third parties can be punished by up to three years’ imprisonment or a fine. Data within the meaning of that provision is only data that is stored or transmitted electronically or magnetically or otherwise in a manner not immediately viewable. Examples are data saved on cellphones or transmitted in online networks.
In addition, obtaining non-publicly available data from another person who has obtained that data unlawfully and making it publicly available with the intent to harm another (data fencing) is punishable by imprisonment not exceeding three years or a fine.
Online harassment of journalists may also be punishable as stalking. Section 238 of the Criminal Code criminalizes unlawfully stalking a person by trying to establish contact with him or her by means of telecommunications. “Means of telecommunications” include phones, fax machines, text messages, email, and the internet, among others. Furthermore, threatening a person or a person close to him with loss of life or limb, damage to health or deprivation of freedom is a crime. In addition, abusing someone’s personal data for the purpose of ordering goods or services for him or her or causing third persons to make contact with him or her could apply to doxing.
These acts must be performed repeatedly and be capable of seriously infringing the person’s lifestyle, meaning the person is, for example, forced to severely change his or her leisure activities. Stalking is punishable by imprisonment not exceeding three years or a fine.
Online harassment could also be punished as assault with a term of imprisonment not exceeding five years or a fine. In general, assault is limited to physical assault. However, if the online harassment is so severe that it results in somatic symptoms, it may be punished under this provision.
4. Public Incitement to Crime
Furthermore, the Criminal Code provides that “[w]hosoever publicly [ . . . ] incites the commission of an unlawful act, shall be held liable as an abettor.” The internet and social networks are generally considered public places, except when information is posted in closed groups. An unsuccessful incitement is punishable by imprisonment not exceeding five years or a fine; however, the punishment cannot be more severe than the one for a successful incitement.
5. Insult and Defamation
Under German criminal law, there are several provisions that prohibit insult and the assertion or dissemination of personal information that is either false or cannot be proved to be true. A requirement is that the information is capable of defaming a person or of negatively affecting public opinion about the person. Insulting someone is punishable by imprisonment not exceeding one year or a fine. The crime of defamation is punishable with imprisonment not exceeding one year or a fine and, if it was committed publicly or through the dissemination of written materials, with imprisonment not exceeding two years or a fine. If the defamation was done intentionally, the term of imprisonment may not exceed two years or a fine; if it was committed publicly, in a meeting, or through the dissemination of written materials, it will be punished with imprisonment not exceeding five years or with a fine.
Insult, defamation, and intentional defamation are only prosecuted upon the request of the victim. The Public Prosecutor, however, will only open an investigation if it is in the public interest.
6. Processing of Personal Data Without Authorization
The Federal Data Protection Act also contains several penal provisions. Among others, it criminalizes the unauthorized processing of non-publicly accessible personal data with the intention of harming someone. “Processing” is defined as “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.” The crime is punishable by up to two years’ imprisonment or a fine. It will only be prosecuted upon request.
Doxing could be punished under this provision, however, it is debated in the legal community whether this crime can only be committed by the data controller or by any private person. The prevailing legal opinion applies it to everyone due to the wording of the provision. (“Wer” (whoever) in the German version.)
B. Civil Law
1. Host Provider Liability
As long as host providers have no actual knowledge of harassing messages published by third parties on their platforms, they can generally not be held liable. However, once they are notified of a rights violation, they must delete the content immediately in order to avoid liability. The notification itself must be so specific and provide enough information that the host provider has a basis to qualify and verify the illegality of the posted information. However, in practice, host providers have regularly ignored notifications, which was one of the reasons for enacting the Network Enforcement Act, described below.
2. Network Enforcement Act
In 2017, Germany passed the Network Enforcement Act (NetzDG), which aims “to introduce rules to make social networks comply on pain of a fine in order to enable prompt, effective action against hate crime and other criminal content on the internet.” However, it did not create new duties to delete content, but imposes fines if social media companies do not comply with existing duties (host provider liability).
The Network Enforcement Act is only applicable to social media networks that have two million or more registered users in Germany. Social media networks are defined as “telemedia service providers that operate online platforms with the intent to make a profit and on which users can share content with other users or make that content publicly available.” The Act does not apply to platforms that post original journalistic content, or to email or messaging services.
The Act obligates the covered social media networks to remove content that is “clearly illegal” within twenty-four hours after receiving a user complaint. If the illegality of the content is not obvious on its face, the social network has seven days to investigate and delete it. The seven-day deadline may be extended if additional facts are necessary to determine the truthfulness of the information or if the social network hires an outside agency to perform the vetting process (a recognized “Agency of Regulated Self-Regulation”). Failure to comply with these obligations may result in fines of up to €50million (about US$57.8 million).
3. Protection against Violence Act
The Protection against Violence Act enables victims to get a civil protection order against a perpetrator who harasses them. It applies, among other cases, when the perpetrator “unreasonably harasses another person by stalking that person against that person’s explicit wishes or by using means of telecommunication to pursue him or her.” A judge will issue a temporary protection order that will prohibit the perpetrator from, among other things, contacting the victim, in particular by using means of telecommunication like the internet. It may be extended. The initial period for which the temporary protection order is issued is decided on a case-by-case basis and depends on the severity, duration, and type of violation of rights. Violations of civil protection orders may result in imprisonment not exceeding one year or a fine.
In addition to a criminal prosecution as outlined above, a person who has been defamed may also sue for libel in civil court and request a preliminary injunction. In the main proceedings, a cease and desist order and damages may be obtained.
C. Current Proposals
On October 30, 2019, the German government adopted a set of measures to combat hate crimes and right-wing extremism, in particular online. Among other things, the government proposes to amend the Criminal Code to align the rules with technical developments and the online world, by adapting existing or adding new provisions to better capture cyberstalking and similar forms of online harassment or insult.
Foreign Law Specialist
 Id. at 6.
 Grundgesetz [GG], May 23, 1949, Bundesgesetzblatt [BGBl.] I at 1, as amended, art. 5, paras. 1 & 2, https://perma.cc/S3DU-HUG4 (original), https://perma.cc/7EKT-M3Z7 (unofficial English translation). For additional information, see Jenny Gesley, Limits on Freedom of Expression: Germany (Law Library of Congress, July 2019), https://perma.cc/28MY-SSF6.
 Bundesverfassungsgericht [BVerfG], 61 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1, paras. 13-16, https://perma.cc/7B2V-44EQ (original), https://perma.cc/JU43-L7BC (unofficial English translation).
 GG, art. 5, para. 2.
 BVerfG, Nov. 4, 2009, docket no. 1 BvR 2150/08, ECLI:DE:BVerfG:2009:rs20091104.1bvr215008, para. 63, https://perma.cc/TXA9-4V97 (original), https://perma.cc/K5TL-D3DN (English translation (extract only)).
 Strafgesetzbuch [StGB], Nov. 13, 1998, BGBl. I at 3322, §§ 185-187, § 238, https://perma.cc/Y774-JR78 (original), https://perma.cc/HG7D-QFBY (unofficial English translation, updated through Oct. 10, 2013).
 BVerfG, Nov. 4, 2009, docket no. 1 BvR 2150/08, ECLI:DE:BVerfG:2009:rs20091104.1bvr215008, para. 34, https://perma.cc/TXA9-4V97 (original), https://perma.cc/K5TL-D3DN (English translation (extract only)).
 StGB, § 202a, para. 1, § 202d. Please note that § 202d is not reflected in the English translation.
 Id. § 202a, para. 1.
 Id. § 202a, para. 2.
 Id. § 202d.
 Id. § 238, para. 1, no. 2.
 StGB, § 238, para. 1, no. 4.
 Id. § 238, para. 1, no. 3.
 Id. § 238, para. 1.
 Id. § 223.
 Bundesgerichtshof [BGH}, docket no. 1 StR 393/85, 6 Neue Zeitschrift für Strafrecht [NStZ] 166 (1986).
 StGB, § 111, para. 1.
 Heribert Ostendorf et al., Internetaufrufe zur Lynchjustiz und organisiertes Mobbing, 32 NStZ 529, 533 (2012).
 StGB, § 111, para. 2.
 Id. §§ 185-187.
 Id. § 185.
 Id. § 186.
 Id. § 187.
 Id. § 194, para. 1.
 Strafprozeßordnung [StPO], Apr. 7, 1987, BGBl. I at 1074, 1319, as amended, §§ 374, 376, https://perma.cc/2J82-5LW3 (original), https://perma.cc/N6L5-3JE2 (unofficial English translation, updated through Apr. 23, 2014).
 BDSG, § 42, para. 3
 Michael Kubiciel & Sven Großmann, Doxing als Testfall für das Datenschutzstrafrecht, 72 NJW 1050, 1053 (2019).
 Oberlandesgericht Hamburg [OLG Hamburg], Mar. 2, 2010, docket no. 7 U 70/09, 7 MultiMedia und Recht [MMR] 490, 491 (2010) (in German).
 Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken [Netzwerksdurchsetzungsgesetz] [NetzDG], Sept. 1, 2017, BGBl. I at 3352, https://perma.cc/4LPN-WS7Z (original), http://perma.cc/J86H-GTY4 (unofficial English translation).
 NetzDG § 1, paras. 1, 2.
 Id. § 1, para. 1, sentence 1.
 Id. § 1, para. 1, sentences 2, 3.
 Id. § 3, para. 2, no. 2.
 Id. § 4, in conjunction with Gesetz über Ordnungswidrigkeiten [OWiG], Feb. 19, 1987, BGBl. I at 602, as amended, § 30, para. 2, sentence 3, https://perma.cc/ZW88-ECAE (original), https://perma.cc/HJ5U-JS5K (unofficial English translation, updated through Aug. 27, 2017).
 Id. § 1, para. 2, no. 2b.
 Id. § 1, para. 1, sentence 3, no. 4 in conjunction with BGB, §§ 823, 1004.
 GewSchG, § 1, para. 1, sentence 2.
 GewSchG, § 4.
 Zivilprozessordnung [ZPO], Dec. 5, 2005, BGBl. I at 3202; 2006 BGBl. I at 431; 2007 BGBl. I at 1781, as amended, §§ 935, 940, https://perma.cc/A5FE-YU8L (original), https://perma.cc/U3CT-U84L (unofficial English translation).
 Bürgerliches Gesetzbuch [BGB], Jan. 2, 2002, BGBl. I at 42, 2909; corrected in 2003 BGBl. I at 738, § 1004 in conjunction with § 823, para. 1, as amended, https://perma.cc/DSD8-SDC3 (original), https://perma.cc/4FNW-ER4Y (unofficial English translation, updated through Oct. 1, 2013.)
 Id. no. 2.
Last Updated: 12/30/2020