Insulting politicians online: Number of followers irrelevant

A German has vilified a politician on Facebook as a "stupid bitch". According to Section 188 of the German Criminal Code, this is punishable as an "insult directed against persons in political life" – even if the perpetrator commits the act on a social network and does not have a huge number of followers there, says the Palatinate Higher Regional Court of Zweibrücken (case no. 1 ORs 1 SRs 8/24).

This is because the only thing that matters is the content posted. "Other circumstances, such as the chosen method of dissemination and the size of the circle of addressees, are not relevant," the Higher Regional Court (OLG) stated in a press release. The 1st Criminal Senate of this court recently overturned a contrary decision by the Regional Court of Kaiserslautern and sent the case back there for reassessment.

The reason for this was a Facebook posting by a man from Kaiserslautern in September 2001, in which he referred to a well-known federal politician as a "stupid bitch" and accompanied this disparagement with seven turd emoticons. The man obviously did not grasp their significance as a symbol of good luck.

Revoked fine could still be imposed

The Kaiserslautern district court sentenced the perpetrator to a fine for his posting. The appeal against this was initially successful: the Kaiserslautern Regional Court (LG) ruled that in addition to the statement itself, the "circumstances of the individual case" were also relevant. In addition to the person concerned, this also concerned the scope of the respective publication. With "only" 417 "friends" on Facebook, the insult did not have a reach that would justify criminal liability.

However, the Higher Regional Court of Zweibrücken does not share this legal opinion. According to the court, criminal liability depends solely on the content of the statement and not on other circumstances. This is in line with the intention of the legislator. The court points out that a good five months before the crime, the legislator considerably extended the scope of application of insulting politicians. Since then, insulting people who are involved in political life at a local level has also been expressly frowned upon. In addition to a fine, a prison sentence of up to three years is provided for.

On the last day of September, the Higher Regional Court heard the case and overturned the verdict of the Kaiserslautern Regional Court. The perpetrator must now stand trial again before the Regional Court, but before a different chamber, which must consider the legal opinion of the Higher Regional Court. With the consent of the woman concerned, it would also be possible to prosecute the man for simple insult.

Course of proceedings:
Kaiserslautern District Court, judgment of 14.12.2022, ref. 41 Cs 52Js 293/22
Kaiserslautern Regional Court, judgement of 22.11.2023, ref. 5 NBs 52 Js 293/22
Palatinate Higher Regional Court Zweibrücken, judgment of 30.09.2024, ref. 1 ORs 1 SRs 8/24. The full text of the decision is not yet available.

(ds)