JUSTICE - No. 66

35 Spring 2021 To reiterate, the legislator placed special emphasis on preserving the memory of the Holocaust. The denial of the Holocaust is therefore explicitly mentioned as a special case of Incitement of the People in Sec. 130(3) StGB. 7 In addition, inflammatory statements can also fall under the offense of insult (Sec. 185 StGB) and in this context can be punished by a prison sentence of up to two years. 8 However, there is a basic problem with the application of the existing penal norms in the area of Incitement of the People and hate speech: German criminal law is — as described above — mainly regulated by the Criminal Code. This Code is being continuously adapted to current developments, and various amendments to the law are introduced. In principle, however, it still reflects the legal understanding or the state of knowledge of the population that prevailed in the year of its entry into force, 1872. As mentioned, much has changed since then, but not all changes have been reflected in legislative amendments inserted into the StGB. It is true that the legislature has taken into account the special features of electrification, for example, and created Sec. 248c StGB for this purpose, which makes electricity theft a punishable offense. 9 There have been other changes in society that have been acknowledged, such as computer fraud, which has also been introduced as a criminal offense. 10 However, other areas have been neglected or are no longer current, as they are tailored to a completely different reality. Even though the legislature has shown a commitment to act against antisemitic statements, in particular by refining Sec. 130 (3) StGB, enforcement of the existing laws is difficult today. 2. Enforcement of German Criminal Law in the “Online Age” In the age of the internet and the almost inevitable use of social networks, victims of insults and Incitement of the People find it increasingly difficult to defend themselves against attacks that take place online. Law enforcement agencies have little opportunity to process criminal complaints promptly or to track down perpetrators. Perpetrators use the anonymity of the internet for their actions: they do not have to identify themselves vis-à-vis law enforcement agencies in their publications and their publicized flyers do not have to identify a source. In short, perpetrators now use the (assumed) anonymity of the internet for their actions. They rely on the fact that their actions will be lost in the large number of corresponding cases or that they will not have to fear prosecution due to the more difficult conditions for tracking. In 2016, this culminated in 3,177 “hate postings” registered by the German Federal Police, of which 2,891 cases were attributed to the right-wing milieu. 11 This represents an increase of 206%, compared to hate crime posts from the radical right in 2014. 12 The number of unreported acts on the internet punishable under Sections 185 and 130 StGB is likely to be much higher since private messages (for example, direct messages on Facebook and Twitter or e-mails) were not included in these statistics. As a result, lawmakers, who initially focused on the self-monitoring of social networks, now recognize the increased willingness to use the internet to spread hate. The measures taken by the lawmakers included a self- imposed obligation on the part of the operators of the social networks to delete illegal content. However, the results achieved by this were not satisfactory, as the legislator stated: These [improvements] are still not enough, however. Still too little criminal content is deleted. A monitoring of the deletion practice of social networks carried out by jugendschutz.net in January/February 2017 showed that the complaints of normal users against hate crime and other punishable content are still not processed immediately and sufficiently. It is true that YouTube now deletes criminal content in 90 percent of cases. Facebook, on the other hand, deleted only 39 percent of cases, and Twitter only 1 percent of cases. There is also insufficient transparency on social networks. 13 7. Supra note 2, § 130 Ref. 80. 8. Stegbauer, Der Straftatbestand gegen die Auschwitzleugnung - eine Zwischenbilanz , NStZ 2000, 281, N EUE ZEITSCHRIFT F ÜR S TRAFRECHT (NS T Z)). 9. Supra note 2, § 248c Ref. 1. 10. Supra note 2, § 263a Ref. 1. 11. BT-Drucksache (Bundestag Printed Matter; i.e. the summary of reasons for a new law), 19/11908, p. 2 (German Parliament Document, Records and reports on the activities of the German Parliament). 12. Supra note 11, p. 5. 13. BT-Drucksache 18/12356, p. 11 (German Parliament Document, Records and reports on the activities of the German Parliament).