Is hate speech a criminal offense?

Hate speech is not a fixed, legally defined term. Our legal system places freedom of expression under the constitutional protection of Article 5 (1) of the German Basic Law (GG) and thus gives this right the highest priority. This includes not only value judgments, but also true factual assertions, insofar as they can serve to form opinions. Untrue statements of fact are not covered by the protection of Article 5 (1) GG. However, the right to freedom of expression does not apply without restriction: If human dignity is affected, the right of personality is violated or disparaging defamatory criticism is expressed, those affected can take legal action against this. The right to freedom of expression also takes a back seat if the criticism violates criminal law. The same applies if provisions for the protection of minors are violated.

(1) Everyone shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by radio and film shall be guaranteed. There shall be no censorship.

(2) These rights shall be limited by the provisions of general law, the legal provisions for the protection of minors and the right to personal honor.

Criminal content such as slander, insults and incitement to hatred are not covered by freedom of speech - regardless of whether statements are made online or offline. For example, hate speech can fulfill the following elements of the Criminal Code (StGB): § 111 Public incitement to commit a crime, § 130 Incitement of the people, § 185 Insult, § 186 Defamation, § 187 Defamation. Examples:

Insult under § 185 StGB
"Have fun fucking your incestuous mother, you bastard."

Incitementtohatredaccording to § 130 StGB
The offense of incitement to hatred comes into play when someone incites hatred or calls for violence against a person or group of persons on the basis of their membership in an ethnic group or religion in a way that is likely to disturb the public peace. Examples of racist posts whose authors have been fined for inciting hatred:

    "I'm in favor of reopening the gas chambers and putting the whole brood in there." - (4,800 € fine - AG Tiergarten Berlin Az. 259 Cs 218/15) "I hätt nu a Gasflasche und a Handgranate rumliegen [...]." - (7,500 € fine - AG Passau Az. 4 Ds 32 Js 12766/14).
   

However, not every racist comment is an incitement to hatred. In order for the courts to classify a comment as inciting the people, there must be a public. It therefore makes a difference whether a comment is made in private at a regulars' table or in the social media. On the Internet, the publicity and thus the pillorying effect is greater.