Putting a brake on the StGB: #NetzDG and #Strafrecht
“I disapprove of what you say, but will defend to the death your right to say it.” It has long been known that this quote should not be ascribed to Voltaire, but to his biographer, Evelyn Hall. And both may well have fearlessly fought to defend freedom of speech, frequently under pseudonyms. This may not have been possible in the current context of aspirations to oblige social network users to use their real names. But that is not the current issue, neither in this article nor in cabinet. Alongside BKAG (federal criminal police legislation) and StPO (code of criminal procedure), the StGB (criminal code) is now in the firing line.
And the term “in the firing line” goes straight to the heart of the matter: Which figures of speech will it be permissible to use in the future? A little brain-teaser for #TeamStrafrecht… #TeamDatenschutzrecht may lend a helping hand. Ultimately, it will be a matter of which data is transferred to the prosecuting authorities, what is deleted and where, and what is saved and in which database. Certainty in the facts therefore holds sway over the sanction risks of social networks due to the data protection implications.
Influencer “I” arrives home after a frustrating day at work. In her favourite social network she reports to her followers, angrily and without holding back. She comments on unfair behaviour by her colleague “C” as follows: “I’m really going to go for him tomorrow morning with my new boots made by [Brand “B”, #Advert].”
Follower “F” adds, depending on the network and her mood, with a supporting “Yeah, go for it!” (with a boot emoji) or just with a sympathetic like/thumbs up/heart, etc.
Colleague “C”, on the other hand, who is also her follower (known by “I”), replies: “YOU are the one who’s going to get it.”
“F” also posts a supporting comment, including Popcorn-GIF. So far, so apparently trivial. Put yourself in the place of the provider “P”, or in that of their lawyers, “ABC” What do you take down, what do you report? Check the ages and latest legal status.
Given the obvious difficulty of assessing the seriousness of the threat, up to now you can take as a basis that the public threat to commit offences (§ 126 StGB) is only liable to prosecution in the case of grievous bodily harm (§ 226 StGB), i.e. on the (threatened) loss of sensory organs or important body parts. But it won’t come to that, you believe
Under § 241 StGB, the threat, namely the announcement to the concerned person, is only liable to prosecution on the likelihood of a crime being committed, applicable to acts subject to a minimum term of imprisonment of one year or more (§ 12 StGB).
And follower “F” can always rely on the fact that only the endorsement of (specific) committed offences can be sanctioned under § 140, and not the supportive comments to hitherto only theoretical imaginings.
In the future, however, the threat is will be liable to prosecution under § 126 StGB in the case of dangerous bodily harm (§ 224 StGB). And how do we stand in our example with the kick using her boot as a possibly dangerous instrument? Does culpability fail under § 126 StGB-E due to the lack of relevance to public order? Are you sure?
Under § 140 StGB-E, the endorsement of criminal activities should now be sanctioned based on future criminal activities (under § 126 StGB-E, the elegant chain of reference is to be considered).
In the draft of § 241 StGB-E, threats are now to be assimilated with all offences against physical integrity, including “simple” bodily harm under § 223 StGB. Other versions call for offences against personal freedom to be included. This sounds like the complete Chapter 18, including stalking, coercion and… threatening to commit a serious criminal offence. This enriches the debate – and future oral examinations in criminal law – and also therefore the phenomenon of chain threats, namely a threat with another threat.
A little assistance from the legal literature (otherwise sadly lacking in this area): A threat within the meaning of § 241 StGB can also occur via a third party if the forwarding to recipients incorporates the intent of the perpetrator. On public disclosure, selectivity is in any case lacking vis-à-vis § 126 StGB and § 241 StGB. It can also become interesting as, under § 3a NetzDG-E, only “threats (§ 241 StGB) with homicide” must be reported, threats within the meaning of § 126 StGB have no such limitation, however. For #TeamStrafrecht and the taxonomy of StGB, all clarity should then have been removed. What does #TeamDatenschutz say about this?
Limitations on freedom of speech are defined in ordinary law. And quite rightly so. Here it is not a matter of what “may still be said”. It is much more a matter of criticism of the particular construction. With every further shift towards concrete rights violations, it remains more open than ever where the limits of what can be said lay, and the limits of possible future reporting obligations. It is also a matter of service providers as private-sector deputies requiring adequate legal clarity to enable them to effectively structure their teams. Anyone with legal uncertainty as to what should be saved locally or be globally deleted will not be able to know what they should consequently report to the new central database of the BKA (Federal Criminal Police). Over-reporting is now added to the frequently discussed risk of over-blocking.
Discourse is strangely calm set against the possible consequences of the current draft, even among #TeamStrafrecht. This may suggest that social networks are in the best case little more than platforms, host providers, without their own voice. The extent to which they already carry out and are assuming the responsibilities of the state may also be due to lack of expertise, which is rarely appreciated. Large groups are also entitled to a sound legal basis and legal clarity. For this reason, and also in their own interests, influencers and other users of platforms should find and exploit their own voice. They similarly influence the limits of what can be said in the offline world. A timely diss track aimed at the legislature could spare all number of rapper debates about the limits of artistic freedom. Unlike Voltaire and Hall, this would not require a fearless effort.