JUSTICE - No. 66

34 No. 66 JUSTICE n this article, we present an overview of German legislation against hate speech and antisemitic crimes. According to the German Criminal Code (StGB = Strafgesetzbuch), offenses in this area are generally punishable by law (see Section I of this article), but the traditional laws obviously cannot stop the increasing number of hate crimes — especially those committed on the internet. The number of known hate speech offenses that constitute the severe criminal offense of Incitement of the People rose from 1,108 cases in 2010 to 1,650 cases in 2019 outside the internet. The corresponding numbers on the internet are 287 recorded cases in 2010, increasing to 1,341 cases in 2019. 1 As a result, the German legislature enacted a law specifically tailored to the area of social media to facilitate enforcement against such crimes (Section II). We critically evaluate this new law (Section III) and present the current reform efforts of the German legislature (Section IV). Finally, we provide an outlook and offer suggestions that could be used internationally to counter hate speech offenses in the online world (SectionV). I. Legal Framework in Germany 1. Origin and Further Development of German Criminal Law German criminal law is primarily based on the provisions of the StGB (Strafgesetzbuch), which entered into force in its original version on January 1, 1872. 2 In the wake of the Third Reich, a number of provisions were included, one of which was Incitement of the People (Volksverhetzung). Within the StGB, the criminal offense of Incitement of the People (Sec. 130 StGB) 3 inhabits a special position in German criminal law, as it is a unique criminal norm created by the legislature in Germany because of Germany's dark past. It was redrafted and expanded in 1960 in light of antisemitic incidents in the young Federal Republic of Germany, 4 to explicitly criminalize such acts. While it embodies restriction of the freedom of expression guaranteed by Article 5 of the German Constitution, it makes the spreading of certain individual “opinions” punishable. 5 In view of the unimaginable horrors of the Holocaust, this was intended to make it clear that the denial of the same or the dissemination of agitation, which had made the Holocaust possible in the first place, should never again be possible in Germany. Therefore, Sec. 130 StGB (Volksverhetzung = Mass Incitement) was refined to address the call to violence against individual ethnic, religious or national groups or the denial of such groups; it criminalizes agitation against, as well as insulting and maliciously disparaging these groups. Offenders are liable to a penalty of up to five years imprisonment. 6 German Legislation Again st Hate Speech and Antisemitism: What Applies Today and What Comes Next I SteffenKaemper andMirco Stellbrink 1. We requested the information from the Criminal Police Reporting Service in Cases of Politically Motivated Crime (CPRS-PMC) and received the numbers on February 25, 2021 for the period 2010-2019, with/without internet as a means of committing crimes. The case figures of Politically Motivated Crimes from the year 2020 are currently only for internal police purposes and not intended for publication. 2. Prof. Dr.Wolfgang Joecks, Dr. Klaus Miebach, M ÜNCHENER K OMMENTAR S T GB (2020, 4th Ed.), before § 1 Ref. 81 (Commentary for the German Criminal Code). 3. Criminal Code in the version published on 13 November 1998 (F EDERAL L AW G AZETTE I, p. 3322), as last amended by Article 2 of the Act of 19 June 2019 (F EDERAL L AW G AZETTE I, p. 844), Sec. 130 StGB, available at https://www. gesetze-im-internet.de/englisch_stgb/englisch_stgb. html#p1333 4. The former version of Sec. 130 StGB is available at https:// lexetius.com/StGB/130 ,10. 5. In detail, see supra note 2, StGB § 130 Ref. 8. 6. Cf. K INDHÄUSER /N EUMANN /P AEFFGEN - H ERIBERT O STENDORF , N OMOS K OMMENTAR , 5th Ed. 2017, StGB § 130 Ref. 9 et seq. (Commentary for the German Criminal Code).