Split: Libel Law

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Who is like God arbour
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Post by Who is like God arbour » Fri Mar 09, 2007 8:44 pm

Maybe I and Prof. Dr. jur. Winfried Brugger from the Universität Heidelberg aren't able to phrase it in such a way, that you can understand it. Then, I'm sorry.

In the German criminal law, the culpability is based on intent. There are also delicts, which can be negligent committed. But these are the exception. The most delicts can be done only deliberately.

That's important for insults too. An insult can't be negligent committed. It have to be your intent, to insult the other person. That means, it have to be your main-intent, to sully the honor or dignity of a person.

It will be assumed, what was your intend, depending on the concrete circumstances.

If someone is a committed national socialist, and you call him that, it is usually assumed, that it was not your intent, to sully his honor or dignity. It is irrelevant, if you would feel it as an insult, if such thing is said to you, as long as you assume, that the other person would not feel it as an insulted because he is such a committed national socialist and everybody knows anyway.

But if he is not a national socialist and doesn't behave like one and you claim, that he is one, although you know, that it is wrong, you would have a problem. Because that is slander.

But if you are convinced, that he is a committed national socialist and you say it, but he is it not, it was only a mistake and is usually not amerciable because there is no such thing like negligent libel or slander. However, it could happen, that he demand compensation, if a damage is arisen through your claim. And he could demand, that you countermand your statement in the same efficient way, as you has stated your false claim. But that's a matter for the civil courts.

But even if he is a national socialist and you call him that and the circumstances are showing, that your intent was not, to make only a statement, which would be allowed, but to sully the honor or dignity of this person, you will get punishment. Because that is not allowed.

You have to have a reason, to state something, from which you know, that it could insult another person. But this reason must not be your intent to insult this person.

If someone behaves like a fascist, you can say, that he is a fascist, if it is clear, that you don't say it to insult him but as a result of his behavior, which match the definition of a fascist. That's no problem. But if it is clear, that you have said it only, to insult him, because you think, that he would feel insulted although you have only said the truth, it would be a criminal offence.


    • And criminal offences against German citizens can be prosecuted over national borders, if the criminal offences don't get effective prosecuted in the state, in which it was comitted.

      That means, that if a German citizen was insulted by someone from another state and this someone was denounced by the German citizen at a German Public Prosecutor's Department because this insult, there would be criminal proceedings against this someone. For an insult, usually nobody would demand an extradition. That would mean, that the criminal proceedings will get discontinued. But such discontinued criminal proceedings can be reassumed within the limitation of time. That could mean, that, if this someone visits Germany within the limitation of time of his committed criminal offence, he can still get arrested and charged for it.

      But it is not my intent, to denounce Mike Wong at a Public Prosecutor's Department. That would be too much effort and I think, that is it not worth. I have better things to do with my time. But regardless, what he has done, is a criminal offence in Germany and he could get prosecuted for it.

      And Germany is not the only state with such criminal law. As far as I know, the most continental-european states have similar criminal laws.

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Post by Wyrm » Sat Mar 10, 2007 12:35 am

Hi! I'm one of Lord Wong's mindless drones from SDN!
Who is like God arbour wrote:That's important for insults too. An insult can't be negligent committed. It have to be your intent, to insult the other person. That means, it have to be your main-intent, to sully the honor or dignity of a person.
Define sullying the honor or dignity of a person. How do I go about doing it? Please go into particular detail of how words become an insult by this definition (being able to sully the honor of a person).
Ibid wrote:If someone is a committed national socialist, and you call him that, it is usually assumed, that it was not your intent, to sully his honor or dignity. It is irrelevant, if you would feel it as an insult, if such thing is said to you, as long as you assume, that the other person would not feel it as an insulted because he is such a committed national socialist and everybody knows anyway.

But if he is not a national socialist and doesn't behave like one and you claim, that he is one, although you know, that it is wrong, you would have a problem. Because that is slander.

But if you are convinced, that he is a committed national socialist and you say it, but he is it not, it was only a mistake and is usually not amerciable because there is no such thing like negligent libel or slander.
No such thing as negligent libel or slander, huh? So, (speaking hypothetically now) if you behave like an idiot on some forum, then when I call you an idiot (citing your idiotic behavior), it's not libel or slander, because as far as my experience with you indicates, you really are an idiot?
Ibid wrote:But even if he is a national socialist and you call him that and the circumstances are showing, that your intent was not, to make only a statement, which would be allowed, but to sully the honor or dignity of this person, you will get punishment. Because that is not allowed.
So the truth is no defense, huh? If I call a child molester a child molester, and even though he really is a child molester and demonstrated adequate proof that he was indeed a child molester, he can still sue my pants off because I used "child molester" as an insult?

Boy, I'm glad I don't live in Germany!
Ibid wrote:You have to have a reason, to state something, from which you know, that it could insult another person. But this reason must not be your intent to insult this person.

If someone behaves like a fascist, you can say, that he is a fascist, if it is clear, that you don't say it to insult him but as a result of his behavior, which match the definition of a fascist. That's no problem. But if it is clear, that you have said it only, to insult him, because you think, that he would feel insulted although you have only said the truth, it would be a criminal offence.
Being a child molester is not something I find to be an admirable condition. Quite the opposite, in fact. How can I accuse someone of being a child molester and not have it be an insult?

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Post by Jedi Master Spock » Sat Mar 10, 2007 1:03 am

For the record, there are precedents that suggest that the web content can be counted as published in the jurisdiction in which it is downloaded. This is why websites with content not legal in all jurisdictions often have an opening screen that tells you that by clicking here to enter their site, you certify that such and such content is legal for you at your particular age and station to view within your community - to put the responsibility for accessing the content clearly on the reader, just in case.
Wyrm wrote:So the truth is no defense, huh? If I call a child molester a child molester, and even though he really is a child molester and demonstrated adequate proof that he was indeed a child molester, he can still sue my pants off because I used "child molester" as an insult?
I believe your concern was already addressed here had you read more carefully:
Who is like God arbour wrote:If someone behaves like a fascist, you can say, that he is a fascist, if it is clear, that you don't say it to insult him but as a result of his behavior, which match the definition of a fascist. That's no problem. But if it is clear, that you have said it only, to insult him, because you think, that he would feel insulted although you have only said the truth, it would be a criminal offence.
So if you randomly call someone a child molester as an insult, and then it turns out that they really are one in spite of the fact that you were just saying it to attack their character, that would be theoretically actionable according to Who is like God arbour's description; truth itself is not a defense, but justification remains a defense.

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Post by Wyrm » Sat Mar 10, 2007 1:23 am

Jedi Master Spock wrote:I believe your concern was already addressed here had you read more carefully:

<snip>

So if you randomly call someone a child molester as an insult, and then it turns out that they really are one in spite of the fact that you were just saying it to attack their character, that would be theoretically actionable according to Who is like God arbour's description; truth itself is not a defense, but justification remains a defense.
And what does a random accusation have to do with the scenario I was actually proposing?
Wyrm, in Jedi Master Spock's quoted text, wrote:So the truth is no defense, huh? If I call a child molester a child molester, and even though he really is a child molester and demonstrated adequate proof that he was indeed a child molester, he can still sue my pants off because I used "child molester" as an insult?
This wasn't a random accusation; I had proof that the accusation was accurate.

Thank you for reading my post. >:(

EDIT: I realize now that I had left out an "I" in the bolded section. Though I thought this would be obvious.
Last edited by Wyrm on Sat Mar 10, 2007 1:25 am, edited 1 time in total.

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Post by Cpl Kendall » Sat Mar 10, 2007 1:24 am

Well Germany must be a real paradise for the scum of the Earth er... lawyers then. If everyone has to go around watching everything they say I should immigrate to Germany and become an attorney specialising in libel suites. I'd make a killing provided of course that the German legal system doesn't have a system in place for throwing out BS lawsuites which you'd think they'd have or the courts would be in knots with this kind of crap.

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Post by Jedi Master Spock » Sat Mar 10, 2007 2:37 am

Wyrm wrote:And what does a random accusation have to do with the scenario I was actually proposing?
It's the quality it would have to have for it to be "just" offered as an insult rather than, to use WILGA's words:

if it is clear, that you don't say it to insult him but as a result of his behavior ... That's no problem.

Do you grasp the distinction? Justification remains a permitted defense even if the court is not charged with determining truth.
Cpl Kendall wrote:Well Germany must be a real paradise for the scum of the Earth er... lawyers then. If everyone has to go around watching everything they say I should immigrate to Germany and become an attorney specialising in libel suites. I'd make a killing provided of course that the German legal system doesn't have a system in place for throwing out BS lawsuites which you'd think they'd have or the courts would be in knots with this kind of crap.
The German legal system doesn't seem to have that reputation. About the only times I hear about "frivolous" suits in Germany is in connection with Rumsfield recently being charged with war crimes in German court.

Read carefully, Kendall. Read very carefully:
Who is like God arbour wrote:An insult can't be negligent committed. It have to be your intent, to insult the other person. That means, it have to be your main-intent, to sully the honor or dignity of a person.
Unlike in a Canadian court, the prosecution has to show motivation. Now, I may not be running a German law practice, but it occurs to me proving motivation can be pretty difficult.

It's a different standard and a different offense, but on the whole it doesn't look any easier to prosecute.

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Post by Wyrm » Sat Mar 10, 2007 4:04 am

Jedi Master Spock wrote:
Wyrm wrote:And what does a random accusation have to do with the scenario I was actually proposing?
It's the quality it would have to have for it to be "just" offered as an insult rather than, to use WILGA's words:

if it is clear, that you don't say it to insult him but as a result of his behavior ... That's no problem.

Do you grasp the distinction? Justification remains a permitted defense even if the court is not charged with determining truth.
Gotcha! So you (and WILGA) admit that if someone is clearly behaving like an idiot, and I call him an idiot, then I'm just calling a spade a spade, because —as far as I'm concerned— it's not just an insult, but also the bald-faced truth.
Ibid wrote:
Cpl Kendall wrote:Well Germany must be a real paradise for the scum of the Earth er... lawyers then. If everyone has to go around watching everything they say I should immigrate to Germany and become an attorney specialising in libel suites. I'd make a killing provided of course that the German legal system doesn't have a system in place for throwing out BS lawsuites which you'd think they'd have or the courts would be in knots with this kind of crap.
The German legal system doesn't seem to have that reputation. About the only times I hear about "frivolous" suits in Germany is in connection with Rumsfield recently being charged with war crimes in German court.

<ker-snip>
...

Jedi Master Spock, you do realize that Cpl Kendall was being sarcastic, do you not?

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Post by Jedi Master Spock » Sat Mar 10, 2007 4:48 am

Wyrm wrote:Gotcha! So you (and WILGA) admit that if someone is clearly behaving like an idiot, and I call him an idiot, then I'm just calling a spade a spade, because —as far as I'm concerned— it's not just an insult, but also the bald-faced truth.
"Not just" an insult?

Remember - if I understand WILGA correctly - the legal code under question invokes the purpose of the words, not the question of truth. If your primary motivation is simply to insult, then, with descriptive content at best secondary - i.e., whether or not you do, in fact, believe the individual in question suffers from profound mental retardation - your purpose is "mainly" to insult.

I cannot offer any comment on precisely where a German judge would draw the line - although a truly draconian interpretation of one or another form of hate speech laws would render the question of libel irrelevant on a greater charge were you to truly believe the individual in question an "idiot," on the basis that "idiot" is identified as an offensive slur against a particular group.

Now, under other legal systems under discussion, the fact that it could be deemed harmful to one's reputation to be referred to as an "idiot" could be invoked under some circumstances.

It is in any case rare that simply calling someone an "idiot" would result in legal action, but then, I was surprised to find that "lard brain," "Nazi," "racist bigot," and "nonce" have been brought into the courtroom in a successful libel case.
Jedi Master Spock, you do realize that Cpl Kendall was being sarcastic, do you not?

Code: Select all

Kirk: Spock, I thought Vulcans didn't have a sense of humor.
Spock: They don't, Captain. 

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Post by Wyrm » Sat Mar 10, 2007 6:42 am

Jedi Master Spock wrote:"Not just" an insult?

Remember - if I understand WILGA correctly - the legal code under question invokes the purpose of the words, not the question of truth. If your primary motivation is simply to insult, then, with descriptive content at best secondary - i.e., whether or not you do, in fact, believe the individual in question suffers from profound mental retardation - your purpose is "mainly" to insult.
And how would anyone know what my purpose would be in calling someone an "idiot", even if they didn't deserved it? I call someone an "idiot" to make them stop behaving idiotically. If I tell someone else that such-and-such a person is an "idiot," then I do it primarily because the "idiot" is demonstrating defective reasoning, and thus his claims should be taken with scepticism. That the act of calling someone an "idiot" relieves anxiety and tension is a happy side-benefit.

And I'm still waiting for a reply from WILGA, what makes an insult a sullying of someone's honor and/or dignity, and how it is different from a mere wounding of an inflated ego.
Ibid wrote:I cannot offer any comment on precisely where a German judge would draw the line - although a truly draconian interpretation of one or another form of hate speech laws would render the question of libel irrelevant on a greater charge were you to truly believe the individual in question an "idiot," on the basis that "idiot" is identified as an offensive slur against a particular group.

Now, under other legal systems under discussion, the fact that it could be deemed harmful to one's reputation to be referred to as an "idiot" could be invoked under some circumstances.
If you are indeed an "idiot", and you have a reputation that would be harmed by being called an "idiot", then why do you deserve such a reputation in the first place?
Ibid wrote:
Jedi Master Spock, you do realize that Cpl Kendall was being sarcastic, do you not?

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Spock: They don't, Captain. 
This is not a point in your favor.

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Post by Who is like God arbour » Sat Mar 10, 2007 7:47 am

Jedi Master Spock wrote: Remember - if I understand WILGA correctly - the legal code under question invokes the purpose of the words, not the question of truth. If your primary motivation is simply to insult, then, with descriptive content at best secondary - i.e., whether or not you do, in fact, believe the individual in question suffers from profound mental retardation - your purpose is "mainly" to insult.
Correct. The exact wording is irrelevant. Your intent and the actual effect on your victim is relevant (If you attempt to insult it, but it don't feel insulted (maybe because it haven't understood you), your attempt was unsuccessful. Because the attempt of an insult is not culpable (contrary to some other criminal offenses), you don't get punished.).

As I have tried to describe, the German criminal law knows three several elements of a crime offence against the honor and dignity [1]. The truth is only relevant for slander and defarmation [§§ 186 and 187 StGB]. (And for these, it is irrelevant, if the vicitim could have understood the statement. It is enough, that other have understood it and the victims dignity and honor is sullied in their opinion.) But only limited. If a slander or a defarmation are either voiced without related factual assertions or any factual assertions made are overshadowed by the sheer vitriol of the criticism, it is still an crime offence [§ 192 StGB] and will be treated like an insult [§ 185 StGB].


Jedi Master Spock wrote:I cannot offer any comment on precisely where a German judge would draw the line
That's tricky. As I have said, we have no case law. It differ from case to case and judge to judge. A judge has always to consider the concret circumstances of each single case and the personalities of the accused and the victim.


Jedi Master Spock wrote:It is in any case rare that simply calling someone an "idiot" would result in legal action, but then, I was surprised to find that "lard brain," "Nazi," "racist bigot," and "nonce" have been brought into the courtroom in a successful libel case.
It is indeed rare, that calling someone an idiot would result in legal action. It is a too common word and often thoughtless used. But in certain circumstances, it could offhand result in legal action, especially if used in public, where other can hear it and it is clear, that an harm is intended (because e.g. it is clearly not thoughtless used).


Jedi Master Spock wrote:Unlike in a Canadian court, the prosecution has to show motivation.
Yes and No. In most continental-european states, the judge in a criminal court has a duty of disclosure ex officio. He is not constricted to the evidences from prosecutor and criminal defence lawyer. Goal of a criminal court is to find the truth. Therefore the judge questions the accused and the witnesses first and only then, the prosecuter - and after him the criminal defence lawyer are allowed to question the accused and the witnesses too. The judge can also ask the opinion of an expert (for psychology, ballistics, medicine, engineering etc.), even if neither the prosecutor nor the criminal defence lawyer have requested this. But both are able to give own evidences or request a motion to take evidences.
Through this enquiry, the judge forms a view on the blamed deed and then reasoned on the intent of the accused.
What was it, what the accused could have thought? What could he have wanted? What could he have known? The rule "in dubio pro reo iudicandum est" applies here too. But that means too, that the judge must have a doubt at all. If he is convinced, that an insult was intended, he will convict the accused.


Wyrm wrote:And I'm still waiting for a reply from WILGA, what makes an insult a sullying of someone's honor and/or dignity, and how it is different from a mere wounding of an inflated ego.
Please read the second quotation (1. Insult of Individuals (Page 28):) from the essay in this post.
It could not hurt, to read the whole essay too.

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Post by Wyrm » Sat Mar 10, 2007 8:59 am

Who is like God arbour wrote:
Wyrm wrote:And I'm still waiting for a reply from WILGA, what makes an insult a sullying of someone's honor and/or dignity, and how it is different from a mere wounding of an inflated ego.
Please read the second quotation (1. Insult of Individuals (Page 28):) from the essay in this post. It could not hurt, to read the whole essay.
Other than wasting my time?

First off, in reference to point (1), how is calling you an idiot denying that you are to be accorded the rights and honor appropriate to your station — that is, as an idiot? Even if you do not feel you are an idiot, what makes you think that this impression is correct and that you are deserving an honor above idiocy, as opposed to only deserving an honor in concordance to idiocy? Furthermore, how is the accusation that you are a goddamned idiot imply that you are subhuman? Idiots are, by definition, human and therefore cannot be subhuman.

Secondly, in reference to point (2), how is calling you an idiot denying you the resepect you are to be accorded to your station — that is, as an idiot? Again, what makes your impression that you deserve respect above that of idiocy a correct one, rather than being accorded respect deserving of your station as an idiot? Put plainly, what makes you think you are deserving of any more respect than you have been given?

Thirdly, in reference to point (3), if you are an idiot, then to have a reputation exceeding that of idiocy constitutes fraud. Therefore, calling you an idiot at worst merely reduces your reputation to that of which an idiot deserves, which you actually are. Furthermore, what makes you think that an idiot is not already your reputation? If your idiocy is plainly visible, then calling you an idiot can hardly harm your reputation as an idiot.

This same resoning applies to any other insult you care to name: "douchebag", "scum", "horse's ass"? Each of the following insults, taken literally, are manifestly false, and therefore beg alternate definitions. These alternate definitions refer to humans displaying particular behaviors, not to subhumans or nonhumans.

If you have behaved in the manner of a douchebag (in the human sense), why shouldn't you be treated as a douchebag (again, in the human sense)? If you are behaving like scum (human sense), why shouldn't you be treated like scum (human sense)? If you are behaving in the manner of a (human) horse's ass, why should you not be treated like a (human) horse's ass?

Well?

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Post by GStone » Sat Mar 10, 2007 12:26 pm

Wyrm wrote:Other than wasting my time?
How long does it take you to read any of his posts? At most, it'd just take a few minutes and maybe a couple more, but that's it.

You waste more time by asking questions and waiting for answers again and again when you could have gotten your answers before you asked your questions to begin with.

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Post by Cpl Kendall » Sat Mar 10, 2007 1:51 pm

Jedi Master Spock wrote:
Cpl Kendall wrote:Well Germany must be a real paradise for the scum of the Earth er... lawyers then. If everyone has to go around watching everything they say I should immigrate to Germany and become an attorney specialising in libel suites. I'd make a killing provided of course that the German legal system doesn't have a system in place for throwing out BS lawsuites which you'd think they'd have or the courts would be in knots with this kind of crap.
The German legal system doesn't seem to have that reputation. About the only times I hear about "frivolous" suits in Germany is in connection with Rumsfield recently being charged with war crimes in German court.

Read carefully, Kendall. Read very carefully:
Who is like God arbour wrote:An insult can't be negligent committed. It have to be your intent, to insult the other person. That means, it have to be your main-intent, to sully the honor or dignity of a person.
Unlike in a Canadian court, the prosecution has to show motivation. Now, I may not be running a German law practice, but it occurs to me proving motivation can be pretty difficult.

It's a different standard and a different offense, but on the whole it doesn't look any easier to prosecute.
Oh for Christ sake, maybe I should have put sarcasm tags up.

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Post by Jedi Master Spock » Sat Mar 10, 2007 2:32 pm

Wyrm wrote:I call someone an "idiot" to make them stop behaving idiotically.
In which case you clearly don't believe they are an idiot. If they were genuinely an idiot, would they be able to act other than as an idiot?
If you have behaved in the manner of a douchebag (in the human sense), why shouldn't you be treated as a douchebag (again, in the human sense)? If you are behaving like scum (human sense), why shouldn't you be treated like scum (human sense)? If you are behaving in the manner of a (human) horse's ass, why should you not be treated like a (human) horse's ass?
The fact that you have to try to couch all of those as true "in the human sense" - to what is clearly at best subjective and offensive metaphor in any case rather than anything that may be established as an objective fact - should tell you something about the amount of truth present in the hyperbole of the original insult.

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Post by Jedi Master Spock » Sat Mar 10, 2007 2:45 pm

Cpl Kendall wrote:Oh for Christ sake, maybe I should have put sarcasm tags up.
I take it I should also have gone on about German immigration law, then? It's been my experience that sarcasm leads to vitriol, and vitriol leads rudeness. Rudeness, of course, leads to the Dark Side (TM).

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