“The Basic Law does not prohibit hatred. The Basic Law does not prohibit contempt for others. Nor does the Basic Law require loyalty to the Constitution. The Basic Law also permits the rejection of the Constitution… Even those who disseminate statements that contravene the Basic Law can invoke freedom of expression.”
In conversation with Prof. Niko Härting, Leipzig-based constitutional and media law expert Prof. Christoph Degenhart highlights the broad scope of protection afforded by freedom of expression and criticises efforts to increasingly restrict this freedom through new criminal provisions. From Degenhart’s perspective, it is not only the offence of “insulting a politician” (Section 188 of the German Criminal Code) that is cause for concern. Degenhart also expresses incomprehension regarding the Federal Minister of Justice’s efforts to tackle “deepfakes”, “AI pornography” and indecent photographs by expanding and creating new offences relating to speech. “Chilling effects” are invariably associated with expanded criminal provisions and can lead to citizens becoming increasingly reluctant to express their opinions in public. The broad concept of freedom of expression, which the Federal Constitutional Court (BVerfG) emphasises in its established case law, is easily forgotten in the process.
Degenhart is critical not only of the planned changes to criminal law. He also calls for a sense of proportion regarding new powers proposed in criminal procedure and police law to enable the widespread use of biometric procedures. As a result, innocent bystanders could find themselves under the scrutiny of the police and the public prosecutor’s office at any time.