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Germany: making use of not specific to the online environment provisions

Germany– like many other States – makes use of criminal law provisions that are not specific to the online environment, such as section 238 of the German Criminal Code (Stalking), section 240 (Using threats or force to cause a person to do, suffer or omit an act), section 241 (Threatening the commission of a felony), section 176 (Child abuse), section 185 (Insult), section 186 (Defamation), section 187 (Intentional defamation), section 201 (Violation of the privacy of the spoken word) and section 201a (Violation of intimate privacy by taking photographs) of the German Criminal Code (Strafgesetzbuch) as well as section 33 of the Law concerning copyright related to works of visual arts and photography (Kunsturhebergesetz). Section 238 (Stalking) expressly includes conduct by means of telecommunications (para. 1 no. 2) or by using personal data of a person (para. 1 no. 3). The same is true for section 176 (Child abuse) which also expressly covers conduct by means of telecommunications (para. 4 no. 3 and 4).

The Act to Improve Enforcement of the Law in Social Networks (in force since June 2017) is to enforce compliance obligations for social networks, but is not extending the scope of criminalization. In particular, social networks with more than 2 million registered users are required to provide an effective complaints management, and to remove or block content that is unlawful under certain provisions of the German Criminal Code within a specific time frame after having been notified about the content. This obligation exists for example with regard to section 130 (incitement to hatred), section 241 (threatening the commission of a felony), section 185 (insult), section 186 (defamation), section 187 (intentional defamation), and section 201a (violation of intimate privacy by taking photographs) of the Criminal Code.