germany freedom-of-speech
Under which German laws is it illegal to mock foreign rulers?
<p>I read this (to me) <a href="https://www.washingtonpost.com/news/worldviews/wp/2016/04/15/merkel-allows-prosecution-of-german-comedian-who-mocked-turkish-president/">strange article</a> in the Washington Post saying a German comedian would go on trial <em>in Germany</em> for mocking the Turkish president.</p>

<p>It appears from the article that it's this whole politicized case with various German and Turkish politicians taking an interest. However, the case obviously still has to pass through regular legal avenues in Germany, with a trial, etc.</p>

<p>Under which exact German laws could this comedian plausibly be tried and convicted?</p>

<p>To clarify: I'm surprised that this is even a case. I thought the only exceptions to free speech in Germany were outright racial/sociological hate-speech and Holocaust-related topics. I am looking for an elaboration on how it's legally possible in Germany to put someone on trial for mocking a political leader (something that's often celebrated in democracies with freedom of speech.)</p>

<p>Was this a serious case of libel or slander?</p>

<p><a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html">Section 103 of the German criminal code</a> states:</p>

<blockquote>
  <p>(1) Whosoever insults a foreign head of state, or, with respect to his
  position, a member of a foreign government who is in Germany in his
  official capacity, or a head of a foreign diplomatic mission who is
  accredited in the Federal territory shall be liable to imprisonment
  not exceeding three years or a fine, in case of a slanderous insult to
  imprisonment from three months to five years.</p>
  
  <p>(2) If the offence was committed publicly, in a meeting or through the
  dissemination of written materials (section 11(3)) Section 200 shall
  apply. An application for publication of the conviction may also be
  filed by the prosecution service.</p>
</blockquote>

<p>According to section 104a, the German government has to approve the prosecution (which it did)</p>

<blockquote>
  <p>Offences under this chapter shall only be prosecuted if the Federal
  Republic of Germany maintains diplomatic relations with the other
  state, reciprocity is guaranteed and was also guaranteed at the time
  of the offence, a request to prosecute by the foreign government
  exists, and the Federal Government authorises the prosecution.</p>
</blockquote>

<p>There are a number of restrictions on speech, such as defaming the President (sect 90), insulting the state (sect. 90a), speaking against the continued existence of the Bundesrepublik, besmirching flags and state symbols of foreign states (104), disseminating writing that glorifies violence (131), etc.</p>

<p>This case is a bit more complicated. As far as I recall, it started with extra3 (a satire show on NDR) airing a critical song about Erdogan. The song can be found on Youtube: <a href="https://www.youtube.com/watch?v=R2e2yHjc_mc" rel="nofollow noreferrer">https://www.youtube.com/watch?v=R2e2yHjc_mc</a> (Closed Captions are available in English, but you need to turn them on)</p>

<p>Erdogan obviously didn't like being criticised, so he complained that NDR was committing an “insult of organs and representatives of foreign countries” under § 103 StGB and a regular insult under § 185 StGB.</p>

<p>This attempt to silence NDR obviously didn't get far because the song published by NDR was covered by freedom of press and/or the freedom to express ones opinion.</p>

<p><strong>To illustrate the difference between an expression of opinion and an insult</strong>, Jan Böhmermann then wrote a <em>Schmähgedicht</em> (smear poem) containing both criticism and profanity which he presented in his late-night show “Neo Magazin Royale” on ZDF.</p>

<p>It looks like the video was deleted from Youtube, but other sites still have it: <a href="https://vimeo.com/162455052" rel="nofollow noreferrer">https://vimeo.com/162455052</a> </p>

<p>Unfortunately, the video doesn't have closed captions, but you can find a translation of the poem here: <a href="https://lyricstranslate.com/en/schm%C3%A4hkritik-vituperative-criticism.html" rel="nofollow noreferrer">https://lyricstranslate.com/en/schm%C3%A4hkritik-vituperative-criticism.html</a> (I suggest that you take a look at the translation as it helps understanding why part of the poem got banned)</p>

<p>Erdogan tried to fight this poem under civil and penal law and at one point, he even managed to obtain a preliminary injunction from the LG Hamburg where part of the poem was banned. To make things clear for the general public, the court even published a press release which explained which parts of the poem were banned and which parts weren't banned. The press release can be found here: <a href="https://web.archive.org/web/20160518111309/http://justiz.hamburg.de/oberlandesgericht/6103290/pressemeldung-2016-05-17-olg-01/" rel="nofollow noreferrer">https://web.archive.org/web/20160518111309/http://justiz.hamburg.de/oberlandesgericht/6103290/pressemeldung-2016-05-17-olg-01/</a></p>

<p>And the attachment to the press release is here: <a href="http://justiz.hamburg.de/contentblob/6103298/6b1b7ae264e23809630af9d7716ef2fd/data/schmaehgedicht-jan-boehmermann-pdfanhang.pdf" rel="nofollow noreferrer">http://justiz.hamburg.de/contentblob/6103298/6b1b7ae264e23809630af9d7716ef2fd/data/schmaehgedicht-jan-boehmermann-pdfanhang.pdf</a></p>

<p>Böhmermann's smear poem later lead to the removal of § 103 StGB from the penal code and to the addition of the word “smear poem” to the Duden.</p>

<p>For further reading, I recommend the following Wikipedia articles:</p>

<p>(THe German versions are more extensive, especially with regards to the court proceedings.)<br />
<a href="https://en.wikipedia.org/wiki/Extra_3#Erdo%C4%9Fan_controversy" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Extra_3#Erdo%C4%9Fan_controversy</a><br />
<a href="https://de.wikipedia.org/wiki/Erdowie,_Erdowo,_Erdogan" rel="nofollow noreferrer">https://de.wikipedia.org/wiki/Erdowie,_Erdowo,_Erdogan</a><br />
<a href="https://en.wikipedia.org/wiki/B%C3%B6hmermann_affair" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/B%C3%B6hmermann_affair</a><br />
<a href="https://de.wikipedia.org/wiki/B%C3%B6hmermann-Aff%C3%A4re" rel="nofollow noreferrer">https://de.wikipedia.org/wiki/Böhmermann-Affäre</a><br /></p>
