Volksverhetzung (), in English " incitement to hatred" (used also in the official English translation of the German Criminal Code),
It is often applied to, though not limited to, trials relating to Holocaust denial in Germany. The criminal code (Strafgesetzbuch) Chapter 7 (Offences against public order), Paragraph 130 (Incitement to hatred) of the Federal Republic of Germany defines when a person is guilty of Volksverhetzung.
Constituent elements
Incitement of the People (
Volksverhetzung) is defined by § 130 (Incitement to hatred) Section 1 of the Criminal Code:
Section 1
On 21 January 2015, changes to the former text of § 130 Sections 2 and 5, with Section 6 becoming Section 7, took effect following European parliament amendments.
[http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl115s0010.pdf#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl115s0010.pdf%27%5D__1438730698018 Neunundvierzigstes Gesetz zur Änderung des Strafgesetzbuches – Umsetzung europäischer Vorgaben zum Sexualstrafrecht. vom 21.01.2015 (in German), p. 11.] At present these changes are not reflected in the
English translation of § 130 as updated in the
original current German § 130.
Substantiation
Although freedom of speech is mentioned by Article 5 of the
Grundgesetz (Germany's constitution), said article basically protects any non-outlawed speech. Restrictions exist, e.g. against personal insults, use of symbols of unconstitutional organizations, or Volksverhetzung. For any
hate speech to be punishable as Volksverhetzung, the law requires that said speech be "qualified for disturbing public peace" either by inciting "hatred against parts of the populace" or calling for "acts of violence or
despotism against them", or by attacking "the human dignity of others by reviling, maliciously making contemptible or slandering parts of the populace". "Germany places strict limits on speech and expression when it comes to right-wing extremism" or anything reminiscent of Nazism.
Hate speech on the basis of sexual orientation and gender identity also is banned in Germany.
Application to offences committed abroad
Offences contrary to § 130 of the Criminal Code committed abroad, whether by German nationals or foreigners, can be pursued as a domestic crime when they so act as if they had been committed within the country, affecting the public peace in Germany and violating the human dignity of German citizens. It is sufficient, for example, that criminal content on the Internet, for example in the form of a HTML page, can be accessed from Germany.
[ BGH 1 StR 184/00 – Urteil vom 12. Dezember 2000 Landgericht Mannheim (BGH 1 StR 184/00 – Judgment of 12 December 2000 District Court of Mannheim, in German] Hence, for example, the jurisdiction of German courts can be applied for offences of
sedition (Volksverhetzungsdelikte) committed abroad. Such an example was the conviction of the Holocaust denier Ernst Zündel by the District Court of
Mannheim in February 2007, who was convicted of inciting propaganda he had published from the US and Canada on the Internet.
History
Historically, the Karlsbader Beschlüsse of the German Confederation under Austria and led by
Metternich included democratic ideals as well as agitation for one, unified German state as Volksverhetzung.
Similar laws in other countries
Similar laws exist around the world, for instance:
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In Austria, Verhetzung is a criminal offense with similar legal elements under section 283 of the Penal Code.
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In the UK, incitement to ethnic or racial hatred is a criminal offense under Sections 17–29 of the Public Order Act 1986.
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In Ireland, the corresponding law is the Prohibition of Incitement to Hatred Act.
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A similar law exists in Sweden as hets mot folkgrupp ("agitation against a population group"), second section 16th chapter 8§ of the criminal code.
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The Finnish criminal code includes a similar law, which calls the crime kiihottaminen kansanryhmää vastaan ("incitement against ethnic groups") in the Finnish version, hets mot folkgrupp in the Swedish version: 11th chapter ("On War Crimes and Crimes against Humanity"), 8§.
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The Russian Criminal Code such a law called the "incitement of ethnic hatred", which refers to actions aimed at inciting ethnic or racial hatred (Article 282 of the Criminal Code of the Russian Federation). Article 29 of the Constitution states that: Propaganda or campaigning inciting social, racial, national or religious hatred or enmity. The propaganda of social, racial, national, religious or linguistic superiority.
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In Uruguay, article 149 of Criminal Code (promoted by former Colorado Party deputy and chair of the Central Israelite Committee Nahum Bergstein) condemns incitement or acts of violence and/or contempt against one or more persons on the grounds of race, skin color, religion, national or ethnic origin, sexual orientation or sexual identity.
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In the U.S., there is no direct legal equivalent due to the strong protections of free speech under the First Amendment of the U.S. Constitution. However, some U.S. laws address aspects of speech that incite violence or pose a direct threat, including:
1. 18 U.S.C. § 2101 – The Federal Riot Act
This law criminalizes interstate travel or the use of interstate commerce (e.g., mail, telephone, internet) with intent to incite, organize, promote, or encourage a riot.
Source: U.S. Code
2. 18 U.S.C. § 373 – Solicitation to Commit a Crime of Violence
This statute makes it illegal to intentionally solicit, command, induce, or otherwise persuade another person to commit a violent federal crime.
Source: U.S. Code
3. Brandenburg v. Ohio, 395 U.S. 444 (1969) – The Incitement Standard
The U.S. Supreme Court ruled that speech advocating illegal activity is protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Source: Justia
4. 42 U.S.C. § 1985(3) – Civil Rights Conspiracy
This law allows individuals to sue for damages if they are targeted by conspiracies to deprive them of equal protection under the law, particularly in cases of racial or ethnic violence.
Source: U.S. Code
5. Hate Crime Prevention Laws (18 U.S.C. § 249, The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act)
While these laws enhance penalties for crimes motivated by bias (e.g., race, religion, sexual orientation), they do not criminalize speech alone unless it is tied to a criminal act.
Source: FBI
See also
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Hate speech laws by country
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Incitement to ethnic or racial hatred
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Stochastic terrorism
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Verbotsgesetz 1947
Further reading
External links
