There is often an aggressive tone in social networks. When do users go too far and cross the line of freedom of expression to hate speech?
Where does freedom of expression end on the internet? (Source: NewAfrica/depositphotos.com)
On Facebook, Twitter, Instagram, YouTube, Snapchat and Co., many users make malicious comments in the form of hate speech. This is the result of a survey carried out among around 3,000 German Internet users on behalf of the Landesanstalt für Medien.
A case in which a lawyer on Facebook badmouthed a judge shows how quickly users can be prosecuted as a result. He worked at a social court. He described him as a “corrupt bunch”, “idiots” and “bullshit”. The lawyer further claimed that the judge deliberately underestimated the lawyer’s fees to be reimbursed by the job center. He wanted to compensate the job center for allowing him to train his employees for cash.
Even with judges there are limits
The district court (LG) Cottbus decided that the designation is an insult within the meaning of § 185 StGB. This follows from the fact that the lawyer wanted to defame the judge. It was not his intention to point out any shortcomings in the judiciary. In addition, the court saw his other statements as inaccurate facts. This is a slander within the meaning of § 186 StGB.
Because the lawyer did this on Facebook to make the judge appear corrupt and thus defame it in front of the public. The Cottbus Regional Court sentenced him – also for evading taxes and social security contributions – to a fine of a total of 120 daily rates (LG Cottbus, judgment of June 2nd, 2020, file number 22 KLs 4/16).
What falls under an insult on social networks
An insult in a social network is characterized by the fact that the author of a comment intentionally offends the recipient and thereby violates their honor. He can only make the statement to himself, e.g. in a private chat on Facebook, Twitter or Instagram.
It is also an insult if he exposes the victim in front of others. This infringes their general right of personality, which the case law ultimately derives from human dignity (Art. 2 Para. 1 GG, Art. 1 Para. 1 GG). This distinguishes an insult from factual criticism, which is also protected in a clear form by the freedom of expression of Art. 5 Para. 1 GG.
In the case of crass statements on Facebook, YouTube and Co. – such as the designation as bastard, scum etc. – the case law always assumes that the offense of insult according to § 185 StGB is fulfilled. Otherwise, the judges weigh up the general right of personality of the victim and the freedom of expression of the author. The following cases show that this weighing up is often difficult, especially in social networks.
Designation of AfD politicians as “Nazi” on Instagram
An Instagra user had posted a photo of an AfD member of parliament in which he could be seen with the mayor of the municipality. The picture was to be understood with the following text: “On the way in the constituency. Today I was part of an inaugural visit to the … mayor … as a guest …”. Below that, the user wrote: “Who needs the Nazi in…???” The district court (AG) Reutlingen sentenced the author to a fine of 20 daily rates for insult (AG Reutlingen, judgment of February 10, 2022, file number 4 CS 14 Js 23428/21).
The Higher Regional Court (OLG) Stuttgart overturned this decision and acquitted the Instagram user. A blatant insult in the form of so-called abusive criticism does not lie in the designation as a Nazi. The judges justified this with the fact that the author is also concerned with the political attitude of the MP.
When weighing up the right to privacy and freedom of expression, the court came to the conclusion that the latter is more worthy of protection here. This results from the fact that citizens are allowed to criticize officials and elected officials. They must be allowed to say if they consider them unsuitable for political offices (OLG Stuttgart, decision of July 19, 2022, file number 4 Rv 26 Ss 366/22). This decision is now final.
Comparison with tipping box on YouTube
A YouTube user had uploaded a video to his channel that he had recorded in the Bavarian state parliament. This featured five people who were close to the Greens party. In a comment, he described these as “absolutely laughable” and wrote, among other things: “…That’s really, you can normally, how do they say, you can put that on the cigarette butt box as a warning.”
The Bavarian Higher Regional Court (BayObLG), like the two lower courts, assumed that the YouTube user had gone too far and assumed an insult. This is because they are denied any dignity by comparing them to the warnings on a tipper box. You shouldn’t go that far in the political sphere either. Due to a formality, it referred the matter back to the previous instance (BayObLG, decision of January 31, 2022, file number 204 StRR 574/21).
What are the civil consequences Harald Büring has been working as a freelancer for netzwelt since April 2023. He is a qualified lawyer and has been working as a freelance author in the legal field for online magazines and in the print sector for many years. He particularly enjoys dealing with topics relating to IT law. (Source: Netzwelt)
Anyone who insults others in social networks or claims inaccurate facts about them also faces significant civil law consequences. The victim can sue him for deletion of the comment (from § 1004 Para. 1 BGB, § 823 BGB). This is often costly for the writer. Because he has to pay for the court costs and extrajudicial costs of both parties.
The victim may also have a claim for damages/pain and tear (according to § 823 BGB, Art. 2 Para. 1 GG, Art. 1 Para. 1 GG). This exists if it has been severely violated in its general personality rights.
Labeled as “scum” on Facebook
In one case, a Facebook user was referred to as “scum” during a discussion in the “Protect the Wolves” group. The district court of Hamburg sentenced the author of this insulting comment to delete it. He also has to pay damages of 600 euros.
The judges justified this by saying that he had seriously violated the general right of personality of the other Facebook user. This follows from the fact that scum means people who are despised by society and should be removed from it. To make matters worse, the judges saw that many people could read this statement (LG Hamburg, judgment of June 4th, 2021, file number 324 S 9/20).
Operators of social networks must provide information
Victims of insults often do not know who insulted them or spread lies about them on Facebook and Co. The assertion of claims under civil law, for example for injunctive relief or compensation for pain and suffering, is only possible if the identity of the perpetrator is known. For this reason, they may, under certain circumstances, require the operator to provide him with the user’s personal data. This claim follows from § 21 paragraph 2 sentence 2 of the Telecommunications Telemedia Data Protection Act). This means: The victim first contacts the operator of the portal. If the latter does not release the data, he is sued in civil court.
Violation of personal rights by fake account on Instagram
For example, an anonymous user did not shy away from secretly creating a fake account on Instagram from a student. In a folder labeled “Nudes,” he posted some photos of her wearing only her underwear.
The pictures included the following statements: “I’m a bitch with a push up”, “Want you to lick me, babe, you can go backstage with me” and “Text me if you want to fuck”. After hearing about it from some classmates, she got in touch with Instagram. She demanded that the fake account be blocked and that she be informed of the user’s name, email address, telephone number and IP address. However, Instagram only blocked the fake account.
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The Schleswig-Holstein Higher Regional Court made it clear that Instagram must provide the woman with information about the user’s name, email address and telephone number. The judges justified this by saying that she was offended by the revealing pictures and statements.
This would give the other users the impression that she was interested in sexual contacts and that she was a slut. According to the court’s findings, she was recognizable to a large number of people. Since the user was anonymous, she was dependent on information from Instagram. However, according to the court, she does not have to be informed of the perpetrator’s IP address because the right to information would only relate to inventory data (OLG Schleswig, decision of March 23, 2022, Az. 9 Wx 23/21). This decision is now final.
Conclusion
In social networks such as Facebook, YouTube, Twitter and Instagram, the limit of insult cannot be precisely determined because it depends on the specific circumstances of the individual case. In any case, hurtful statements that deliberately go below the belt are not permitted. Something like this also applies to discussions about explosive topics such as child abuse, refugee policy or climate glue. Targeted cyberbullying is even more prohibited.
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