That’s welcome news for press freedom and freedom of expression. The provision in question, Art. 103, is a relic of the outdated concept of lèse-majesté, as an MP from Chancellor Angela Merkel’s governing Christian Democratic Union, Karl-Georg Wellmann, put it yesterday.
What’s worrisome, though, is that it took the very real threat of prosecution – Turkish President Recip Tayyip Erdoğan’s request to punish television satirist Jan Böhmermann over a boundary-pushing poem – to get us to this point.
Art. 103 is a relic in the sense that according a ruler special protection from criticism, however harsh, doesn’t belong in a modern democracy. But its antiquated nature is hardly unique. As the International Press Institute (IPI) revealed in its EU-wide survey of defamation and insult laws last year, the results of which can be viewed on IPI’s legal database and in its “Out of Balance” report, the German Criminal Code is full of similarly questionable provisions waiting to be misused.
For instance, Art. 104 punishes insult to foreign flags with up two years in prison. Insulting German government bodies or the German president can land offenders up to five years behind bars, according to Art. 90. Under Art. 188, defamation of a person “involved in public political life” is punished more harshly than defamation of a private person, seemingly clashing with the European Court of Human Rights’s well-established principle that public figures ought to tolerate more criticism than average citizens, not less.
Similar laws are ubiquitous in the EU, IPI’s research found. Fifteen EU countries – including Austria, Denmark and Poland – maintain criminal laws against insulting officials or symbols of a foreign state. In 17 EU states, offending the honour of one’s own state or national symbols remains a criminal offence. Twenty-three EU countries maintain criminal defamation laws, which international human-rights bodies consider a key threat to free expression worldwide in large part due to the ease with which they may be abused and the hefty consequences they carry.
Actually, Böhmermann should count himself lucky to have recited his poem in Germany and not in non-EU-member-state Iceland; there, disgracing a foreign head of state is punishable with up to six years (!) in prison.
Since publishing its research, IPI has met directly with numerous EU governments to encourage reforms in line with international standards, including the removal of laws similar to Germany’s Art. 103. In most cases, officials recognise that these laws are antiquated, but often brush off calls to abolish them by suggesting that they are “not used anyway”.
An IPI review of criminal justice statistics in EU countries last year confirmed that criminal provisions protecting states and state symbols from offence in particular are, indeed, relatively rarely applied. In 2013, Germany registered two criminal cases under Arts. 103 and 104 together, neither of which led to a conviction.
Denmark is particularly full of unapplied “ghost laws” out of sync with a modern understanding of free expression. As of the date of publication of “Out of Balance” last year, the country had not seen a single case of criminal insult, offence to the royal family or honorary insult of the dead – whatever that means – since 2007 and courts had handed down just 14 convictions for criminal defamation or slander in that period.
But the law is the law. And that means that these provisions, whether they’ve been dormant for five, 50 or 500 years, can be revived at any time. The Böhmermann case shows us very clearly what can happen if lawmakers do not proactively repeal laws that threaten freedom of expression on their face.
Last year, a minor international outcry followed when a Dutch man was charged with insulting the country’s king during a protest, a crime technically carrying a potential sentence of up to five years in prison and even the loss of certain civil rights. A Dutch prosecution spokesman said at the time: “The law dates from the 19th century but still exists like many other old laws. We have to enforce it.”
It’s unfortunate that calls to repeal Art. 103 and similar provisions in Europe tend to be reactionary. The determining factor in driving change shouldn’t be reduced to individual cases, i.e., whether Jan Böhmermann’s poem violated President Erdogan’s right to dignity – an alleged violation, it should be noted, that generally could be adequately remedied in civil court. Instead, the focus should be on the risk that these types of criminal provisions inherently harbour for freedom of expression, and especially for individuals’ willingness to speak out and share important information in the public interest or criticise officials’ failings.
The Böhmermann case crystallises that risk, but in truth we shouldn’t need this case to observe it. In democratic states, criminal laws protecting heads of state – foreign or domestic – from “insult”, and the dangers such laws carry, speak for themselves.
Views expressed in this article are those of the author and do not necessarily reflect those of the International Press Institute.
