HY Kim, J.D. Candidate 2017, Columbia Law School

Background

On March 31, 2016, a German satirist, Jan Böhmermann, ignited a debate on the relevance of an arguably outdated statute by reading an obscene poem about the Turkish President Recep Tayyip Erdogan on the weekly German satirical show “Neo Magazin Royal.” The poem included insults and made light of the very fact that the act of reciting such a poem would be considered illegal in Turkey. Little did Böhmermann know, this act was also illegal in Germany.

After the conclusion of an investigation, launched by Chancellor Angela Merkel at the request of Erdogan, a Hambourg regional court decided that parts of Böhmermann’s poem would be subject to an injunction, and could not be publicly repeated. The Court’s decision followed a lèse-majesté law, Section 103 of the German Penal Code. Following the decision, a lively debate erupted on the protection of free speech in Germany and the continued relevance of Section 103.

On April 15, Chancellor Merkel announced that the German government approved Böhmermann’s criminal prosecution, but would abolish Section 103 before 2018. However, just a few days later on April 22, Bruno Kramm, the head of the Berlin branch of Germany’s Pirate Party, was also arrested for violating Section 103 by quoting a line from Böhmermann’s poem. On April 28, 2016, Germany’s justice ministry completed a draft to abolish Section 103. The draft included the following statement: “the idea that foreign state representatives need special protection against insults does not accord with the era.” The draft also seeks to abolish the law that requires the government’s approval to open a probe into such offenses by the demand of foreign presidents, which is what happened in this case. The draft needs to be approved by related ministries and then to be presented to cabinet ministers, but it is unclear when Section 103 will actually be repealed.

Most of the media coverage concerning Böhmermann’s case has been about Erdogan and his heavy-handed censorship of the press in Turkey. Other articles and op-ed pieces criticize Turkey’s political power over Europe, and with the recent failed coup d’état on July 15, 2016, the focus is on Erdogan’s struggle to maintain his authority. However, the legal questions concern the existence of this lèse-majesté provision, and how this outdated law has impacted the life of an individual comedian, minimized the importance of freedom of speech and press, and stirred up the political discussions of the refugee crisis in Europe. Due to this provision and its recent media coverage, Erdogan has been able to bolster his campaign for authoritarianism.

Legal Analysis

The German Penal Code, otherwise known as the Strafgesetzbuch, dates back to the German Empire when it was passed in 1871. Many provisions were added in the wake of the Third Reich, such as treason to peace, incitement to a war of aggression, or incitement to hatred against segments of the population. Section 103 of the German Penal Code, entitled “Defamation of organs and representatives of foreign states,” prohibits insulting a foreign head of state or a head of a foreign diplomatic mission. According to Section 103, violators may be liable for  a fine or imprisonment up to three years, and in case of a slanderous insult, from three months to five years of imprisonment. Under Kaiser Wilhelm II’s rule, this provision was expanded to include non-royal heads of state in order to secure the country’s ability to conduct effective diplomacy. Sections 185 to 188 prohibit libel and slander in general, including defamation of persons in the political arena. Holocaust denial, for example, was made a crime in 1994 by an amendment to section 130 of the Penal Code, but before it was specifically outlawed, it was punishable under section 185.

Germany’s constitution, however, guarantees freedom of speech and expression to its citizens pursuant to Article 5. It could be easily argued that satire is a sub-category of the freedom of opinion, which is also protected by Article 5. An even stronger argument is that satire is protected under the freedom of the arts. Article 5 of the Constitution states:

• Every person 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 means of broadcasts and films shall be guaranteed. There shall be no censorship.
• These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
• Arts and science, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

Much of the provision can be interpreted broadly to include comedy and statements in the context of entertainment, especially with the generous language in subsection (1), “there shall be no censorship.” Furthermore, freedom of expression is protected by Article 10 of the European Convention on Human Rights, to which both Germany and Turkey are parties. The European Court of Human Rights has put forward the proposition that the protection of free speech “is applicable not only to ‘information’ or ‘ideas’ that are regarded as inoffensive…but also to those that offend, shock or disturb the State or any sector of the population.”

Advocates of Section 103 (or Erdogan’s supporters) might argue that the poem contained not satire, but abusive criticism. Abusive criticism applies to expressions that no longer concerns the facts of the matter but only defamation of the person, and where the person is simply a target, such as in terms of his or her physical characteristics. However, this is where the German Supreme Court, or the government, must delineate the boundaries of what constitutes an abusive criticism, and when to take into account the context in which such words are recited.

The European Court of Human Rights has also emphasized that while criticism of politicians has limits, those limits “are wider as regards a politician than as regards a private individual,” and that these public figures are “obliged to display a greater degree of tolerance in this context.” Specifically, with respect to the type of offense provided for in Article 103, the court has ruled that, “[t]he offence of insulting a foreign head of state is liable to inhibit freedom of expression without meeting any ‘pressing social need’ capable of justifying such a restriction” and “undermines freedom of expression.” Justice Minister Heiko Maas, meanwhile, has made clear he would like to expedite striking the law from the books.

Implications of Lèse-Majesté law and its tangible impacts

So how has Erdogan’s obsession with lèse-majesté law impacted the status of, and debate surrounding, Germany’s law? At the very least, the arguably absurdity of such an outdated law has been brought to light, and the relevant authority has been encouraged to to question its existence, and hopefully to abolish it.

In another way, the potential application of similar laws in other countries has been called into question by the controversy in Germany. In the Netherlands, a man was sentenced to 30 days in prison for intentionally insulting King Willem-Alexander. The Dutch political party has proposed an abolishment of the royal defamation laws, and the king has also pledged to accept the outcome of any debate on the issue. In Turkey, hundreds were charged with insulting Erdogan, who said recently that he would be “forgiving and withdrawing all cases.” German lawyer Ralf Hoecker told news agency DPA Saturday, “[t]he announcement only refers to Turkey. Nothing changes in Germany for now.”

On one hand, although the Böhmermann case has shed light on the outdated law and its threat to the freedom of expression in Germany, and Europe, it has imposed a significant hardship on Böhmermann, and has called into question the definitions of satire and abusive criticism. In turn, this might call into question the distinction between criticism and hate crime. These are difficult questions. In the midst of the continuing refugee crisis in Europe and its impact on foreign relations and on EU law and policy, it will be important to abolish these outdated, irrelevant legal provisions, and not allow foreign policy or foreign powers to dictate the legal outcomes of a country, simply because of its bargaining power in the refugee crisis.

Feature Photo Source: http://ichef.bbci.co.uk/news/624/cpsprodpb/8FF3/production/_89415863_qiitnn7z.jpg