Defamation on the internet: defend against false statements!

An incorrect revocation instruction is no rare sight. Errors occur time and again when they’re presented. For the consumer themselves, these usually aren’t clearly recognizable.

A revocation instruction is required by law for certain consumer contracts. The EU Consumer Directive, which came into force on June 13, 2014, standardizes its formal requirements.

Learn firsthand what to look for in this article.

Content

1. What is defamation?
2. In what cases can action be taken against defamation?
3. What is the difference between slander and defamation?
4. Damage to reputation detected – the first steps
5. What are your rights affected by defamation on the internet?
6. Conclusion on defamation on the internet

1. What is defamation?

Freedom of opinion (Article 5, paragraph 1 of the Basic Law) generally allows everyone to express themselves freely on the internet. However, this is not possible without limits. If statements are deliberately damaging and infringe upon the general right of personality (Article 2, paragraph 1 of the Basic Law in conjunction with Article 1, paragraph 1 of the Basic Law) of a third party, this is no longer covered by the Basic Law. This then constitutes defamation, which can be punished both civilly and criminally (Sections 185 et seq. of the German Criminal Code).

Defamation refers to any untrue factual assertion made to a third party with the aim of violating their reputation, dignity, or honor in public. Defamation can occur on the internet in various ways, such as:

• cyberbullying in internet forums, where the internet serves as a “pub” for insults
• unjustified ratings on review portals to deliberately defame potential contracting partners – “Doctor X is a quack whose diagnoses are nonsense. Better look for another doctor!”
• defamatory statements on social platforms, such as calling an investor a “company thief”
• spreading of falsehoods or untenable rumors – “XY is a criminal”
• malicious criticism, i.e. statements that solely serve the purpose of making you look bad – titling a celebrity as “…looks like a mix of: the Joker, a chimpanzee, Michael Jackson, and Tatjana Gsell”. Bushido was convicted for this statement a few years ago. Read more here.
• incomplete reporting or failure to anonymize the person or company in the reporting

2. In what cases can action be taken against defamation?

It should be noted that not every statement that you find offensive has legal consequences. What is crucial is whether it can be proven to be true or not. In addition, a distinction is made between opinion and factual assertion. If a factual assertion is true or a permissible expression of opinion is present, the statement cannot constitute defamation.

An untrue factual assertion is any statement that is accessible to proof and does not correspond to reality. Simply put: it can be proven to be false. Opinions, on the other hand, contain a subjective evaluative core that cannot be verified.

Example of an untrue factual assertion – defamation: “Management consultant X never pays taxes and embezzles his customers’ funds.”

The statement can be refuted by the tax office and its customers if X has not done anything wrong. However, it is suitable for damaging his work and reputation in public.

Example of a permissible expression of opinion – no defamation: “I think X wore an unflattering dress to the gala.”

The statement reflects a personal opinion. Even if X could feel personally attacked by this, such a statement can be made freely.

Distinguishing between the two is often difficult. Even statements that start with “I think that…” or “In my opinion…” can be factual assertions. We would be happy to examine your case and determine the proper course of action!

3. What is the difference between slander and defamation?

If there is damage to one’s reputation, from a criminal perspective, slander (§ 186 StGB) or defamation (§ 187 StGB) may come into consideration.

Defamation (§ 187 StGB) occurs when the perpetrator knowingly spreads false factual statements to denigrate someone. The perpetrator is aware that what they are saying does not correspond to reality.

In the case of slander (§ 186 StGB), however, it cannot be precisely proven whether the factual statement is true or not. Nevertheless, if it is capable of damaging your reputation in public, the perpetrator can still be held criminally liable for spreading it.

The difference, therefore, is that in the case of defamation, the perpetrator deliberately lies, and this can also be proven.

However, it is important for both norms that the statement is made to a third party. In the case of a defamatory statement made only to you and without any public context, only an insult (§ 185 StGB) comes into consideration.

4. Damage to reputation detected – the first steps

To prevent the rapid spread of reputation-damaging content, immediate action is important. This way, you can minimize potential damages and preserve your good reputation.

Once you have discovered reputation-damaging content, you should first document it in detail. Screenshots and precise information about the time, place, etc., of the finding will improve the evidence in later proceedings.

If you know the identity of the perpetrator, it is recommended to first seek an out-of-court solution and get in touch with them. This way, you can avoid a process that takes time and money.

Even if you find content on the internet to be insulting, not every statement is directly associated with legal consequences. Please describe the situation to us. We will check if it is reputation-damaging content and support you in asserting your rights!

5. What can you do in case of defamation on the internet?

If there is defamation, you have both civil and criminal law options to take action against the perpetrator.

Civil claims

If you know the perpetrator, you can take action directly against them and make the following claims:

• You can demand the deletion of the defamatory content and issue a warning to the perpetrator. This is the quickest way to eliminate the defamation and prevent further dissemination. You are entitled to a claim for removal and omission (§ 1004 Para. 1 BGB analogously in conjunction with § 823 Para. 1 BGB or §§ 1004 Para. 1 analogously, 823 Para. 2 BGB in conjunction with §§ 185 ff. StGB, 824 BGB).
• Furthermore, you can demand a so-called penalized cease-and-desist declaration from the perpetrator. Through this, they assure you to refrain from the offending behavior in the future.
• If you have already suffered damages from the defamation, you can assert them through a claim for damages. It is important to demonstrate that the damage is directly related to the defamation. This will often be difficult.
• A claim for pain and suffering is possible for private individuals if the untrue statement has so severely lowered your reputation in public that “reparation” is no longer possible in any other way. There must be a particularly serious violation of your personality. This would be the case if even a counterstatement could no longer restore your reputation.
• If the defamation was caused by a competitor to obstruct you as a competitor, there will usually also be a violation of competition law (UWG).

Criminal proceedings

As a victim of defamation, libel, or insult (§§ 185 ff. StGB), you can also take legal action against this criminally. You should file a complaint. The public prosecutor’s office then has the option to initiate an investigation and clarify the criminal offense.

Through access to files at the public prosecutor’s office, we can also gain important insights that may be relevant to the civil proceedings.

6. Conclusion on defamation on the internet

• Defamation is any untrue factual statement to a third party about a person with the aim of violating their reputation, dignity, or honor in public.
• A distinction is made between opinion and factual statement. If a factual statement is true or a permissible opinion is present, the statement cannot constitute defamation.
• Defamation can be libel or slander and have criminal consequences.
• You can demand cessation, removal, or compensation for damages from the perpetrator of defamatory content.

Image credits: © Federico Caputo | panthermedia.net