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 defamation, insults, and incitement of the people is not protected by freedom of speech—regardless of whether the statements are made online or offline. For example, hate speech may constitute the following offenses under the Criminal Code (StGB): § 111 Public incitement to commit criminal offenses, § 130 Incitement to hatred, § 185 Insult, § 186 Defamation, § 187 Slander. Examples:

Insult under § 185 StGB
A 65-year-old retiree was sentenced to a fine of 2,200 euros for calling a German television host a “dirty system whore” in a Facebook post. His statements directed against refugees were also taken into account in determining the sentence and led to a conviction for incitement of the people. – (2,200-euro fine – Traunstein Local Court, Case No. 510 JS 54808/16).

Incitement of the People under Section 130 of the German Criminal Code (StGB)
The offense of incitement of the people applies when someone incites hatred against a person or group of people based on their membership in an ethnic group or religion, or calls for violence in a manner likely to disturb the public peace. Examples of racist posts whose authors were fined for incitement to hatred:

“I’m in favor of reopening the gas chambers and stuffing the whole brood in there.” – (€4,800 fine – Tiergarten Berlin Local Court, Case No. 259 Cs 218/15)
“I’ve got a gas canister and a hand grenade lying around […].“ – (€7,500 fine – Passau Local Court, Case No. 4 Ds 32 Js 12766/14)

However, not every racist comment automatically constitutes incitement to hatred. For courts to classify a comment as incitement to hatred, it must be made in public. It therefore makes a difference whether a statement is made in a private gathering or on social media. On the internet, the public nature of the statement—and thus its effect of shaming the individual—is greater.