Insult or Freedom of Expression? Where the Line Lies

“It's just my opinion!” Almost everyone who pushes back against an insulting comment hears this. Sometimes it is even true. In Germany, freedom of expression also protects sharp, unfair and hurtful statements. But it does not protect everything. This article explains the standards courts use to draw the line between insult and freedom of expression. It cannot tell you whether a particular comment is a criminal offence – that always depends on the exact wording and the context.

Two rights that pull against each other

On one side is Article 5(1) of the Basic Law (Grundgesetz, GG), Germany's constitution: everyone has the right to freely express and spread their opinion in speech, writing and pictures. But this right has limits, including “the right to personal honour” (Article 5(2) GG).

On the other side is your honour, protected by the general right of personality and, in criminal law, by § 185 of the Criminal Code (Strafgesetzbuch, StGB). Insult (Beleidigung) is punishable by up to one year in prison or a fine. If it is committed publicly, at a gathering or by distributing content, for example in a public comment, the maximum is two years.

The law does not define what an insult is. Courts have filled this in over decades. Roughly: a statement by which someone expresses disrespect or contempt for another person.

Opinion or fact?

The first question is a fork in the road. Opinions are value judgements: “Your outfit is ugly.” They cannot be proved or disproved. Statements of fact can be checked: “She took money from the class fund.”

Value judgements that harm someone's honour fall under § 185 StGB. False or unproven statements of fact fall under defamation and malicious defamation (§§ 186, 187 StGB), explained in Defamation and Slander Online. This article is about value judgements.

Where is the line between freedom of expression and insult?

In 2020, the Federal Constitutional Court (Bundesverfassungsgericht), Germany's highest court for constitutional matters, summarised its standards in several decisions (press release no. 49/2020). The basic rule: whether a statement harming someone's honour is punishable is, as a rule, decided by weighing your honour against the other person's freedom of expression. Factors include:

• How hard does the statement hit? Is it about social reputation or about basic respect as a human being?
• Is it about an issue? A statement that contributes to public debate carries more weight than one that merely stirs up feeling against an individual.
• Private or public? Does it concern your private life or your public role?
• Spontaneous or deliberate? A sentence in a heated moment is weighed differently from one written after thinking it over.
• How far does it reach? What matters is not the medium as such but its actual reach. A post that many people see and that stays online can weigh more than a passing remark in a small group.

Abusive criticism and formal insult: when there is no weighing

In three narrowly defined cases, freedom of expression gives way without any weighing. Courts must clearly name these cases and give reasons.

Abusive criticism (Schmähkritik). The statement no longer has any recognisable connection to a factual debate. Its only purpose is to show contempt for a person without reason, for example out of a private feud or out of hatred and anger – the Constitutional Court expressly mentions the internet in this context. Particularly drastic wording alone is not enough.

Formal insult (Formalbeleidigung). Particularly crude swear words, for example from toilet language, used deliberately and not in the heat of the moment. Here the word itself is what counts, because it is considered taboo regardless of context.

Attack on human dignity. The statement denies a person the core of their personality, in other words their humanity. A single hurtful remark is not enough.

Important: if none of these exceptions applies, that does not mean the statement is allowed. The court then weighs the interests, and the result can also come out in favour of your honour.

Made-up examples for orientation

The following examples are invented. They show how the standards typically work. They are not an assessment of a real case. A different context can change the result.

• “Your video is badly researched and spreads nonsense.” Harsh criticism of a piece of work, related to the subject. As a rule, this falls within freedom of expression. The law even explicitly mentions critical judgements of scientific, artistic or commercial work (§ 193 StGB).
• Under a mayor's post: “This decision is irresponsible.” Sharp, but related to her office and a factual issue. Criticism of people in power carries special weight in the balancing.
• Under the same post, a crude swear word from toilet language with no connection to the issue. This may be a formal insult. Criticising people in power does not justify every personal insult.
• In voice chat, a swear word slips out after a lost round – or the same word appears under every one of your posts for days. In the first case, spontaneity tends to count in favour of the speaker. In the second, deliberation, repetition and reach weigh more heavily.
• A comment equating a person with vermin. This may be an attack on human dignity. If something like this targets a group, for example because of their origin, incitement to hatred (Volksverhetzung, § 130 StGB) or inciting insult (verhetzende Beleidigung, § 192a StGB) may also apply.

Politicians do not have to put up with everything either

People in public life have to tolerate more. But not everything. In 2021, the Federal Constitutional Court overturned a decision by a lower court that, in the case of a politician who had been massively abused, had treated only abusive criticism as a punishable insult (order of 19 December 2021, 1 BvR 1073/20). Weighing is required below that threshold too. The case was about whether a social media platform had to disclose users' data. For people in political life there is also a separate, stricter provision (§ 188 StGB), see Defamation and Slander Online.

Not a crime does not mean acceptable

A comment can be unpunishable and still:

• break the platform's rules. Many platforms also remove content that is not a criminal offence.
• be unlawful under civil law, so you can demand that the person stops (Unterlassung).
• have consequences at school or in a club.

So reporting is often worthwhile even if you are unsure whether the line to a criminal offence has been crossed.

Mind the deadline

Insults are usually only prosecuted if you file a request for prosecution (Strafantrag, § 194 StGB). You have three months for this, starting from the day you learn of the act and the person behind it (§ 77b StGB). You do not need to know beforehand whether a statement is punishable. The police, public prosecutor and court decide that. How the request works is explained in Criminal Complaints and Deadlines Explained. An overview of other offences is given in Online Hate: What Is a Criminal Offence?.

Frequently asked questions

What is abusive criticism (Schmähkritik)?

A statement that is no longer about an issue but only about putting a person down without reason. In that case, freedom of expression gives way without any weighing. Courts only accept this in narrow exceptional cases, though.

Is every swear word an insult?

No, that cannot be said without context. It depends on who said what to whom and in which situation. Particularly crude swear words used deliberately can, however, be a formal insult.

Is it allowed to insult politicians?

No. People in power have to tolerate more criticism, but not every personal insult. For people in political life, § 188 StGB applies in addition.

Do I need to know whether a comment is a crime before I report it?

No. The legal classification is the job of the police, the public prosecutor and the court. Just keep the three-month deadline for the request for prosecution in mind.

If you are unsure

Secure the comment together with the whole thread before and after it. Context often matters more than the single word. Then you can report it through our form. If you say yes, your report goes automatically to a suitable cooperating law firm (Kooperationskanzlei) as soon as one is available. If there is no suitable firm right now, you get an email with other places to turn to straight away. Deadlines keep running: you can always file a request for prosecution (Strafantrag) with the police yourself. The legal assessment comes from the law firm, not from us.