Paragraph 188 | “People are intimidated”

The slogan “Merz leck Eier” also led to proceedings under paragraph 188. However, this was discontinued. The courts ruled that it was a polemical expression of opinion. Photo: dpa/Sven Kaeuler Anyone who calls Friedrich Merz “Lügenfritz” risks a fine. They consider this to be exaggerated and are calling for the complete abolition of Section 188, which was tightened five years ago and which legally sanctions the insult and defamation of politicians. Why?

Paragraph 188 is a very old one that was not very relevant for a long time. It was then changed in 2021 in three key points: firstly, the sentence was increased, secondly, local politicians were also included and thirdly, the offense of insult was added. The latter in particular, combined with the increase in expressions of opinion on the Internet, has meant that we now have around 4,500 cases per year. This is mainly because it is no longer necessary to report those affected. The public prosecutor's office can initiate investigations on its own initiative.

This has left people intimidated to express their opinions. The “Lügenfritz” example in particular proves this impressively. If someone finds out that Merz promised something that he didn't implement, that can be colloquially described as a lie. And that's not an insult!

In a democracy, harsh criticism of political actors should also be allowed, emphasizes Niema Movassat. The Berlin lawyer was the constitutional spokesman for the left-wing faction in the German Bundestag from 2009 to 2021.

There are also good arguments for maintaining the current regulation. Political actors are much more exposed to the spotlight than private individuals. Do they really have to put up with everything?

The Federal Constitutional Court says that politicians actually have to put up with more because they are present in public; they also have to face heated debates. Slander and slander, as contained in the old paragraph 188, are simply more drastic offenses than the newly added offense of insult. It's absurd that people are being prosecuted because they call Robert Habeck an "imbecile." That doesn't help anyone.

The proceedings vary greatly in terms of the level of punishment. Calling Merz a “lack of a monkey” cost 100 euros, Habeck as a “full-head” in 2100 and Annalena Baerbock as the “dumbest foreign minister in the world” almost 10,000 euros. Is this pure arbitrariness of the judiciary?

The low 100 euros was a discontinuation of the proceedings against payment of a fine. The individual processes are always difficult to compare; it depends on the specific statement, and the penalties are calculated based on daily rates and therefore income. But yes, in public this can come across as an incomprehensible imbalance. There are also regionally very different court decisions: some emphasize the importance of freedom of expression, others the protection of those affected.

So is it less the paragraph itself than its restrictive interpretation that is the problem?

You can see it like this. Paragraph 188 was tightened because politicians were increasingly confronted with hate campaigns, especially online. A spectacular case was the attacks on Green MP Renate Künast, against which she then successfully defended herself legally. In the meantime, however, an investigation is initiated and a verdict is made for every minor public insult. This is no longer appropriate.

In my opinion, the courts often ignore the fact that the act must make the person concerned's public work considerably more difficult. But this is not really the case in almost any of the known cases. I advocate at least returning to the regulation from before 2021 - if you don't want to delete the paragraph completely.

The political climate is more toxic than before. There is an aggressive tone, especially due to the presence of the AfD. Verbal insults and hostility can be a precursor to more drastic threats and even physical attacks - as experienced by local political actors in particular.

This is the classic argument of the supporters of the stricter paragraph 188, according to the motto: We want to nip this in the bud. Threats and physical attacks are punishable anyway and have legal consequences. But if people are now intimidated and no longer take part in political debates out of fear of being legally prosecuted, then the whole thing will backfire. Let's take the example of "Lügenfritz" again: Anyone who doesn't put it quite so polemically but simply says: Friedrich Merz lied - should that also be punishable?

The lawyer Ronen Steinke has called for the criminal offense of insult to be abolished not only for politicians, but for all citizens. What do you think of it?

You have to think about that. This could, for example, be downgraded to a misdemeanor. Apart from that, those attacked also have the opportunity to take civil action against insults. Political actors are free to report personal hostilities. In any case, public prosecutors should stop investigating on their own initiative - especially when no one really feels offended.

Politicians are not only insulted, they also have to defend themselves against fake news about themselves in the digital space. Is there no need for a legal corrective against false allegations?

This is still possible, especially if the fakes are directed against a specific person. If someone claims, for example, that Friedrich Merz wants to abolish Deutsche Bahn and that from now on everyone should only drive cars, the Chancellor can defend himself against this and can sue. This is less about legal prosecution and more about social resilience. We need counter-information structures and commitments from platform operators to combat false allegations - but that is a different topic.

This article cost you nothing. Us: research, production and technology. We saved on office rent as well as on printing and distribution. And we gave up salary. Nevertheless, the calculation doesn't work without you. We need 300,000 euros by the end of the year. You pay what you can, in return we keep writing.

No paywall, no small print, just one goal: that nd stays.