Last week, a video clip showing people chanting “foreigners out” and “Germany for Germans” to the tune of “L'Amour Toujours" by Gigi D'Agostino spread rapidly online, and sparked calls for consequences for those involved.
Since then a series of similar incidents have been reported at various events across Germany, including: men seen singing the racist lyrics at ‘Schlagermove’ in Hamburg, two men arrested at Erlangen’s 'Bergkirchweih' festival for the same action, and in Stuttgart supporters of the Turkish football club Galatasaray Istanbul erupted in bouts of the chant celebrating their team’s victory.
In all of these incidents police reports were made.
Regarding the Sylt incident, public prosecutors have already opened investigations on the suspicion of incitement to hatred for several of the people involved.
READ ALSO: Outrage after partygoers filmed shouting racist chants on German island of Sylt
Many of them have reportedly lost their jobs over the incident, and public protests have popped up against far-right and racist behaviour. But it could be a while before prosecutors officially decide if charges should be brought in this case.
For foreigners living in Germany, the incident brings an interesting question to mind: in which cases exactly is racist or xenophobic speech illegal in Germany?
The Local takes a look at the German laws around hate speech, and what actions are punishable by law.
What is considered hate speech according to German law?
In general, Germany places high importance on the freedom of speech. This is why all kinds of groups, regardless of where they stand on the political spectrum, can speak, rally and protest freely in this country.
However, given Germany’s history, when current laws were written, some rules were put in place that were meant to prevent people from targeting minorities with hateful speech. Additionally, glorifying the Holocaust, or denying the fact that it happened, is a punishable offence.
Specifically, incitement to hatred (Volksverhetzung) is illegal, according to section 130 of Germany’s penal code.
Here it is written that, “Whoever, in a manner that is likely to disturb the public peace, incites hatred against a national, racial, religious or ethnic group…”, can be imprisoned for up to five years.
Additionally, a person can face up to three years in prison for either creating or disseminating content that incites hatred along the same lines.
Further sub-sections of the law clarify that either approving of crimes committed by the Nazis, or denying or trivialising them, in a manner that disturbs the public peace can also be punished with jail time up to five years or a fine. The same goes for creating or sharing content that delivers a message along those lines.
One well-known case against a Holocaust denier was held in 2007 when Germar Rudolf was sentenced to two and half years in prison for publishing “research” meant to disprove the Nazi’s use of gas chambers in concentration camps, among other things.
How is the law applied in practice?
While Germany’s hate speech ban sounds like an obvious and simple rule in theory, things quickly get a bit more complicated when it comes to enforcing it.
Whereas it is quite easy to identify racism or xenophobia as soon as you see or hear it, whether it qualifies as criminal conduct, according to the law, can be tricky to determine.
“This is the case if a statement violates a specific prohibition under criminal law,” Sonja Eichwede, legal policy spokeswoman of the SPD parliamentary group, told The Local. “For example, anyone who uses slogans of anti-constitutional organisations, calls for or condones criminal acts or incites hatred against certain groups of people will be prosecuted.”
Such was the case in the recent trial of Björn Höcke, a far-right AfD politician in Thuringia, who was fined €13,000 for closing a political speech with the rallying cry, “Everything for Germany”, which is a slogan known to have been used by the Nazi party.
READ ALSO: Hitler or Höcke? Regional AfD boss cuts short German TV interview
What consequences could those seen at Sylt face?
The slogan heard at the incident at Sylt – “Germany for Germans, foreigners out” – is a chant that was used by Nazi leader Adolf Hitler, and has also been used by the far-right National Democratic party.
So it is possible that the people who disturbed the peace by saying these phrases on camera could be charged, and face hefty fines or even a prison sentence. But whether or not the law has been broken will need to be determined by prosecutors.
According to Eichwede, whether or not charges can be brought is reviewed on a case by case basis: “When this limit is exceeded can only be determined according to the specific circumstances of each individual case.”
She added: “Racist motives are given special consideration by the courts when determining the sentence and lead to a higher penalty.”
Short of using language known specifically to have been used by the Nazi party, or a terrorist organisation, incitement to hatred becomes trickier to establish.
But use of any language which targets a minority group, or which assaults someone’s human dignity based on their belonging to a certain religious or racial group, can be charged.
Other laws that have been applied against hate speech
Beyond the basic protections established in Section 130, there are a few other German codes that have been used to prosecute Holocaust deniers and fascist propagandists.
Similar to slander or libel laws, Germany’s Chapter 14 prohibits malicious gossip against citizens or defamation against politicians. It also includes a ban on defiling the memory of the dead.
In 2007, Holocaust denier and publisher of neo-Nazi propaganda, Ernst Zündel, was convicted of violating the memory of the dead. This charge was included in a broader incitement to hatred case, and he was sentenced to five years in prison.
Crucially, these kinds of insult-law cases can only be brought with the consent of the victim or the victim’s family.
Sections 86 and 86a ban online or offline distribution of “flags, insignia, uniforms, slogans and forms of greeting” that are known to belong to political parties and organisations that are considered unconstitutional by the Federal Constitutional Court, including Nazis and neo-Nazis.
Finally, the most recent addition to Germany’s legal protections against hate speech came in 2017 in the form of the Network Enforcement Act.
According to this law, social media companies are responsible for deleting hate speech on their platforms in Germany, and face up to €50 million in fines if they don't.
Following a series of far-right terror attacks carried out by perpetrators who had been radicalised on the internet, the act was tightened in 2020.
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