German Legal System

Introductory Background About Germany

The government of Germany is a parliamentary government. The structure of the German government is dictated by the Grundgesetz für die Bundesrepublik Deutschland (“Basic Law for the Federal Republic of Germany” or the German Constitution). It can be broken into three main components that are the legislative, the executive, and the judiciary.

1. Legislative Branch

German Parliament building

Within the legislative branch, there is the Bundestag (the parliament elected by the people. Also known as the “Federal Diet”), the Bundesrat (the body representing the 16 federal states. Also known as the “Federal Council”), and the Landtage (the parliaments of the 16 federal states). The Bundestag has about 600 members (dependent on the election results). The Bundesrat is a 69-member body that is used to represent the state governments' interests.

In operation, all legislation comes from the Bundestag and the Bundesrat is only participating in matters that affect the specific state interests. These interests can be about finance, administration, or about legislation with respect to the Basic Law. In this manner, the Bundesrat acts as a check on the Bundestag. However, the Bundestag in turn can overturn a Bundesrat veto with a two-thirds majority.

Another check on the Bundestag is the Landtage, the state parliaments. These state parliaments are able to pass concurrent legislation with the Bundestag that provides a narrower law than those passed by the Bundestag. This allows for local legislation that is more narrowly tailored for each state’s needs and interests. So long as the Landtage’s legislation is uniform with the Bundestag legislation and not restrained by the Basic Law, the legislation is permissible.

With respect to the Basic Law, the amendment process is relatively straightforward. Both the Bundestag and the Bundesrat have to provide a two-thirds vote to amend the Basic Law.

2. Executive Branch

Germany Chancellery building

The executive branch comprises the federal government, represented by the Federal Chancellor, the Federal Presidency, and the Federal administration. The president is a largely nominal role that is chosen for a five-year term via a special assembly. This role requires the signing of all federal legislation and treaties, the nomination of the chancellor and the cabinet appointments, the appointment of federal judges, and the pardoning individuals.

The chancellorship involves the leadership of the nation and setting government policy. The chancellor selects individuals that they want in their cabinet and asks for the nomination by the president.

The chancellor is elected indirectly by a majority vote of the Bundestag after a nomination by the president. Removal of the chancellor requires an absolute majority by the Bundestag and a majority that has already assured the election of a successor to the chancellorship. The requirement for an assured successor is to reduce the likelihood of the chancellor being removed and provide stability to the government. Additionally, the structure prevents the German president from removing the chancellor and removes the president from the government formation process. This was done to the avoid a repetition of the constitutional framework that allowed Adolf Hitler to come to power.

3. Judicial Branch

Federal Constitutional Court building

Germany implements a civil law system. The “lower” courts are the state courts and act as the courts of first instance. The higher courts are the federal courts. Unlike the U.S. system, the state and federal courts are not distinct from one another. Rather, the decisions at the lower state courts can be raised up to the higher federal courts. This is made easier due to the fact that both court systems implement the same procedural and substantive laws.

In terms of the substantive law, the judiciary is split into five branches: Ordinary Courts (Handling most criminal and civil cases), Administrative Courts, Finance Courts, Labor Courts, and Social Courts. Each has its own independent high court.

The Federal Constitutional Court ("Bundesverfassungsgericht") provides constitutional review of the legislation and has binding authority on all lower courts. Within the court, there are two Senates that each has eight justices. The First Senate hears constitutional cases from the citizens and the Second Senate hands abstract constitutional questions and settles political disputes within the government.

German Institutions in the Communication Law Context

1. Bundesnetzagentur

The Bundesnetzagentur ("Federal Network Agency") is the regulatory agency that is responsible for managing telecommunications. Founded in 1998 and based in Bonn, Germany, the Bundesnetzagentur falls under the Federal Ministry for Digital and Transport (BMDV). It assists in building, maintaining, and improving the telecommunications infrastructure and ensures consumer protection.

2. Bundesministerium des Innern

The Bundesministerium des Innern ("Federal Ministry of the Interior" or BMI) is a ministerial level institution that is responsible for cyber-security. Founded in its current form in 1949 and based in Berlin, it has multiple agencies that oversee the regulation and protection of communications. It plays a major role in monitoring cybercrimes and establishing regulation to prevent breaches or attacks to the information infrastructure.

3. Bundesbeauftragter für den Datenschutz und die Informationsfreiheit

The Bundesbeauftragter für den Datenschutz und die Informationsfreiheit ("Federal Commissioner for Data Protection and Freedom of Information" or BfDI) is responsible for data protection, freedom of information requests, and government transparency. The BfDI is responsible for data protection law over all the federal public bodies and superives the tax authorities in the telecommunications and postal context. In case of data protection violations, the BfDI is able to impose prohibitions and fines.

4. Bundesministerium der Justiz und für Verbraucherschutz

The Bundesministerium der Justiz und für Verbraucherschutz ("Federal Ministry of Justice and Consumer Protection" or BMJV) is responsible for the enforcement of civil and criminal German law as well as the enforcement of EU and international laws. The BMJV further assists in legislative projects by providing legal drafts for potential laws that will be adopted by the Bundestag. Furthermore, the BMJV examines drafts of laws and regulations in other federal departments to ensure constitutional compliance and uniform application of the law.

Sources of Law

Germany's legal system is in the civil law tradition. Its main body of law is the Basic Law and it provides the constitutional framework for the nation.

1. Grundgesetz für die Bundesrepublik Deutschland (“Basic Law for the Federal Republic of Germany” or the German Constitution)

The Basic Law is the supreme body of law in Germany and establishes the 16 regions of Germany. Some of the critical portions of the Basic Law with respect to communciations law include the respect for human dignity (Article 1), freedom of faith and concsience (Article 4), freedom of expression, arts and sciences (Article 5), freedom of assembly (Article 8), freedom of association (Article 9), and privacy of correspondance, posts and telecommunications (Article 10).

In addition to enumerating the fundamental rights and providing the structure, the Basic law provides the distribution of power and control amongst the three branches of government and the relationship between the legislative and administrative functions. Furthermore, while the Basic Law can generally be amended, Articles 1 and 20 cannot be amended. Article 1 enshrines basic human rights and dignity and Article 20 establishes that Germany is a democratic and social federal state and its authority is derived from the people.

2. International Agreements and Law

International Law

Article 25 of the Basic Law (Primacy of International Law) establishes "The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory." These international laws supersede the laws passed by the Federation and the Landtage but are below the Basic Law.

However, not all international laws outrank the laws of the federal territory. For example, international contract law would not supersede the laws of the federal territory. Rather, the laws that are designed to protect individuals and provide further guarantees for foreigners are the ones that meet the standard of Article 25. The rationale for this framework is to avoid the pitfalls of the preceding German constitution that resulted in the Nazi state.

Any conflicts between international law and federal or state laws are addressed by the Federal Constitutional Court. The court has defined the "general rules of international law" to be "the universally applicable rules of customary international law as well as the general principles of law." This means that the international law must be generally accepted by those accepted subject to the international law. However, the court has noted that international law does not supersede the Basic Law and can only supersede domestic statutes.

International Agreements

In the context of communication law, Germany is part of numerous international agreements.

A. Constitution of the International Telecommunication Union

The International Telecommunication Union (ITU) is a UN agency that has the goal of ensuring interconnectivity across the globe. It's purpose was helped ensure standardization of technologies and the management of the RF spectrum at an international level. Germany has taken a leading role in the financial contribution to the ITU and has helped provide support to developing countries in their attempts to build their telecommunications infrastructure. Going forward, Germany hopes to improve digital connectivity and automation to ensure safety and efficiency as the country is a major leader in the automotive industry. German interests in the ITU are represented by the Bundesnetzagentur.

B. European Convention of Transfrontier Television (ECTT)

The ECTT was established in 1989 with the goal of improving European cooperation in TV broadcasting. Through this agreement, the free flow of TV programs across Europe is ensured and member nations are subject to standards to maintain certain standards, and censorship and advertising regulations. The convention addresses the growth of satellite broadcasting, promotes the dissemination and reception of audiovisual content, emphasizes respect for national laws regarding content, and encourages cooperation in media regulation and cultural diversity.

C. Budapest Convention on Cybercrime

The Budapest Convention on Cybercrime is the first attempt to tackle cybercrime in the form of a binding treaty for all signatories. This convention aims to handle issues like network security, copyright infringement, computer-based fraud, and child pornography. Signatories are able to approach these issues in a uniform and consistent manner and establish liability on those that would violate the terms of the convention. Violations to the convention can be criminal or non-criminal sanctions. The convention was supplemented with the Protocol on Xenophobia and Racism two years after the initial signing of the convention.

In Germany, the convention is enforced by the BMI in the form of the Cyber Security Strategy for Germany. Implemented in 2016, this strategy aims to protect information infrastructure in Germany, strengthen public IT systems, create a response center to receive complaints of cybercrimes, coordinate with other member states, and establish additional tools to respond to cyber-attacks.

D. European Union Directives

Espace Léopold, the complex with the EU parliamentary buildings. Located in Brussels, Belgium

As a member of the European Union (EU), Germany is subject to EU legislation and directives. In the context of electronic communications, Germany must ensure must ensure that its regulatory framework is consistent with other EU members. It must also stimulate economic competition and increase telecommunication investments to ensure that its citizens have high-quality connectivity and robust consumer protection.

Furthermore, the EU establishes major data privacy and security laws that Germany has to follow in the form of the General Data Protection Regulation (GDPR). Under this law, Germany must enforce the obligations that are imposed on companies that wish to operate in the EU cyberspace. The GDPR imposes strong data privacy and security measures to ensure that EU citizens are protected from potential misuse or violation of their digital privacy. The scope of the GDPR affects personal data, the processing of data, the data subject, the data controller, and the data processor.

3. Domestic Legislation

German law can be created either by the Landtage or by the Bundestag and the Bundesrat. In the case of laws created by the Landtage, the law is only applicable in the region that has passed the law. In the case of laws passed by the federal legislature, the law is applicable across the nation. Given that Article 73 of the Basic Law establishes that the federal legislature has exclusive legislative power over freedom of movement, international trade, copyright, and postal and telecommunications, most communications law is federally imposed.

Principles of Communication Law and the Media

Human Rights Safeguards

Human Rights in the Basic Law

The Basic Law ensures specific freedoms in the context of communication law. This includes personal freedoms (Article 2), freedom of faith and conscience (Article 4), freedom of expression, arts and sciences (Article 5), rights associated with marriage, family, and children (Articles 6-7), freedom of assembly, association, and privacy (Articles 8-10), and freedom of movement and occupation (Articles 11-12).

To ensure adequate protection of constitution rights, the Basic Law has some mechanisms that mitigate possibility of abuse of the legal framework. First, Articles 1 and 20 (Article 1 enshrines that "human dignity is inviolable" and must be respected by all three branches of government. Article 20 mandates a democratic and social federal state where state authority is derived from the people) are subject to an "eternity clause". That is, Article 79(3) (Amendment of the Basic Law) establishes "(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible." This bars any amendments to those articles and ensures a baseline respect for human dignity and the constitutional structure.

Second, Article 19 (Restriction of Basic Rights - Legal Remedies) requires laws to be applied generally and not be used to target an individual. Additionally, any person whose rights are violated is able to find a remedy in a court with jurisdiction or an ordinary court if there is no jurisdiction that is established.

European Convention on Human Rights (ECHR)

The European Court of Human Rights. Located in Strasbourg, France. Its decisions are binding in Germany.

The ECHR establishes the European Court of Human Rights (ECtHR). The ECtHR is the enforcement mechanism that makes sure that ECHR members are protecting the rights ensured by the convention. Based in Strasbourg, the ECtHR'S decisions are considered to be legally binding and result in case law that has a major impact on the laws of the ECHR members.

There are 18 articles in the ECHR regarding rights and freedoms. In the communication law context, the agreement enumerates obligation to respect human rights (Article 1), right to respect privacy and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10), freedom of assembly and association (Article 11), and derogation in time of emergency (Article 15).

As a member of the ECHR, Germany is bound by the judgments of the ECtHR as per Article 46 of the convention. Under the framework of the Basic Law, the ECHR has the rank akin to a federal statute within the German legal system and the nation is obligated to resepect ECtHR decisions.

International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is a treaty that, collectively with the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights, makes up the International Bill of Human Rights. This agreement protects the right to life and human dignity, freedom of speech, assembly, right to family life and family unity, and minority rights. This agreement requires members like Germany to take legislative and judicial measures to ensure those rights are protected.

As a member of the ICCPR, Germany must comply with the monitoring body (Human Rights Committee) that is established to assess compliance with the treaty. This includes providing reports on the measures the country has taken to ensure protection of the enumerated rights.

Protection for Journalists

Germany has provided significant rights and protection to journalists that are consistent with Article 5(1) of the Basic Law ("Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."). Additionally, legislation has been passed to protect the right to information from the authorities. Under this, the government may not charge any fees for information. This right of information imposes a duty on the state and municipalities to provide information that may be limited due to confidentiality obligations. Other acceptable reasons of refusal may be overriding public or private interests, unreasonable scope of the information request, or the impeding of a pending procedure.

Journalists also have a special right that allows for the protection of their sources and the right to refuse to testify. This right to refuse to testify is out of respect towards the relationship between a journalist and their source. All information relating to that source is protected under this right. Furthermore, this right also covers protection against confiscation of their materials.

The GDPR, in Article 85, leaves the consideration of the freedom of expression and information to the Member States. The Member States are required to reconcile the protection of personal data with the right of freedom of expression. Due to this, Germany has passed the Interstate Broadcasting Treaty (Rundfunkstaatsvertrag). This establishes that in the editorial context, the person's consent is not required if a journalist is processing data for journalistic purposes. Additionally, journalists do not have to inform data subjects of their rights of access with respect to data processing.

Furthermore, journalists only have an obligation to provide information if general personal rights have been violated. This is seen in Section 9 of the German Press Code. It states "Violating people's dignity with inappropriate representations in word and image contradicts journalistic ethics." Similarly, Section 10 of the German Press Code states "The Press will refrain from vituperating against religious, philosophical or moral convictions." Such protections are done to ensure that the personal rights are being protected and respected by journalists even in their research and work.

Extraterritorial Application of Rights

In the BND Act Case, the Federal Constitutional Court held that Germany's espionage must conform to the Basic Law. This was regardless of whether the target of the surveillance was a German citizen or a foreign citizen. The case had arisen due to the Bundesnachrichtendienst ("Federal Intelligence Service" or the BND) surveillance on foreign targets without statutory authority. The German government had argued that this was permissible as the Basic Law did not have extraterritorial effects. Furthermore, the Bundestag reformed the BND Act in 2016 to explicitly authorize the surveillance of foreign targets as long as the German officials acted from within Germany. This would allow robust access to telecommunications data as Germany is a major center of communication for business.

In response to the 2016 amendment to the BND Act, journalists around the world challenged the constitutionality of the statute. They argued that this would undermine their reporting and chill their speech. In particular, they argued a violation of telecommunication privacy and Article 5(1) of the Basic Law (press freedom).

The main issue of the case was "Are German officials subject to the constitutional constraints even when their espionage actions are against non-Germans located outside Germany?" The Federal Constitutional Court held that the 2016 amendments to the BND were unconstitutional and that the German officials were subject to the constraints imposed by the Basic Law. The rationale for this was that Article 5(1) of the Basic Law provided press freedom and telecommunications privacy. According to the court, the framers of the Basic Law placed an emphasis on the respect for human rights and the promotion of international understanding in light of the atrocities that had been previously committed by the Nazi regime. Furthermore, the human rights that were being protected based on the decision were present in all communities around the world and the court noted that those rights should be protected by the Basic Law to prevent abuse by the German government.

Censorship and Violent Content

Censorship

Article 5(1) of the Basic Law ("Freedom of expression, arts and sciences") establishes "Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship." While freedom of expression is provided by the Basic Law, it still has its limits. Some possible limits are general laws, the protection of minors, and personal honor. The "there shall be no censorship" clause has been interpreted to mean that the German government cannot prevent publication in advance. That is, the state cannot make prospective restrictions on personal expression. So, the German government can take retrospective action against statements that are considered to be defamatory, hate speech, or some other violation of another's personal rights and dignity.

Given Germany's history with far-right violence and hate speech, the country has implemented a penal code to criminalize hate speech. In §130(1) of the Criminal Code, Germany punishes "Anyone who, in a manner likely to disturb the public peace, 1. incites hatred against a national, racial, religious or ethnic group, against parts of the population or against an individual because of his membership of a aforementioned group or part of the population, incites violence or arbitrariness, or 2. attacks the human dignity of others by insulting, maliciously slandering or slandering an aforementioned group, parts of the population or an individual because of his belonging to an aforementioned group or part of the population..." This is intended to protect the public peace and ensure that the human dignity of the members of the public is protected in a manner that is consistent with Article 1 of the Basic Law.

A. Broadcasting Violent Content

In 2023, the BMJV proposed a "Law on the Protection of Digital Violence" with the intent to bolster enforcement against individuals who are engaging in online violence. This violence looks at if the victim's personal rights are being violated. Currently, this law remains in delibration and is in the drafting stage. The aim of this law is to strengetn the ability to legally pursue violations of personal rights in the digital space. This would create a legal right for victims to requires the suspension of a perpetrator's account on online platforms.

In addition to the BMJV proposal, the main content moderation policy is via the Netzwerkdurchsetzungsgesetz ("Network Enforcement Act" or "Facebook Act" or NetzDG). Passed in 2017, NetzDG is intended to protect against hate speech, misinformation, and other acts. The law is limited to its application on social media platforms with over 2 million followers. Platforms that are subject to this law are required to take down content according to the standards of NetzDG as well as their own internal guidelines. Thes standards require the removal of and blocking of all unlawful content and storage of evidence. This results in the standards of NetzDG acting as a sort of "floor" of the minimum acceptable conduct that is expected of social media platforms.

Some of the standards imposed by NetzDG include clear procedures on content takedown and blocking, publication of complaint data and complaint trends, and easy and accessible pathways to reporting content. Any explicitly illegal content is required to be taken down within 24 hours and any ambiguously illegal content must be taken down or reviewed within seven days.

Individuals have criticized NetzDG as a law that has resulted in self-censorship and the chilling of free speech. Others have criticized the potential of over-reporting by users. However, a government report has noted that there was no abuse of the reporting mechanism required by NetzDG. Google argued that the requirement to submit a suspicion of crime to law enforcement was too burdensome.

B. Broadcasting Terror Attacks

Under §86 of the Criminal Code, Germany has outlawed the dissemination of propaganda material of unconstitutional and terrorist organizations. The statute defined the materials to be "content which is directed against the free democratic basic order or the concept of international understanding." Furthermore, as a member of the EU, Germany is also responsible for the enforcement of EU legislation. This includes a 2021 regulation that was intended to address the dissemination of terrorist content online. The regulation would require social media platforms to delete content within one hour of receiving a removal order by government authorities. However, critics have noted that the definition of "terrorist content" was vague and the time provided to comply with the removal order was too short.

At a domestic level, 14 of Germany's state media authorities ensure the regulation of private broadcasting and telemedia. This is done via the Interstate Media Treaty (MStV), the Interstate Treaty on the Protection of Minors in the Media (JMStV), and the state media laws. Article 4 of the MStV notes that illegal content includes materials that encourage violent or arbitrary action against national, racial, religious or ethnic groups and the violation of human dignity. Furthermore, the article bars the presentation of "cruel or otherwise inhuman acts of violence against a person in a manner that glorifies or trivialises such acts of violence or presents the cruel or inhuman nature of the act in a manner which violates human dignity..."

Truth, Honor, and Tolerance

Defamation

Defamation law in Germany exists in both the civil and criminal law contexts. With the criminal law context, there are three relevant offenses: 1. Insult, 2. Defamation, and 3. Slander. Insult is punishable by imprisonment for up to one or two years, depending on the location and manner of the offense. Defamation and slander are established in §186-187 of the Criminal Code and recites "Whoever, despite knowing better, asserts or disseminates an untrue fact about another person which is suited to degrading that person or negatively affecting public opinion about that person or endangering said person’s creditworthiness..." It is punishable with imprisonment for up to two to five years, depending on the location and manner of the offense and a fine.

In 2016, a highly publicized case took place regarding criminal defamation of Turkish President Recep Tayyip Erdogan by satirist Jan Boehmermann. Boehmermann had made a vulgar poem regarding the Turkish president and upon the request of the Turkish government, the German Chancellor, Angela Merkel, allowed the prosecution of Boehmermann for defamation of a foreign official. Ultimately, the charges were dropped by the prosecution due to a lack of certainty of a crime and because the poem was protected by artistic freedom. In 2018, Chancellor Merkel moved to have the statute that criminalized insults against foreign heads of states to be repealed. However, it should be noted that desecration of flags and state sumbols of foreign states (§104) and the disparagement of the state and symbols, the German resident, and symbols of the EU are still prohibited (§90). Such statutes still act as limits on freedom of expression as the country appears to still prioritize the respect for state symbols and authorities from language and expression that is considered to be disparaging or abusive.

Civil defamation is based on the idea that the Basic Law protects the personality rights of individuals in Article 5. So, when an individual has their rights, deliberately, intentionally, or negligently violated, they may be able to bring a civil claim of defamation. Such individuals must be a natural or legal person (this encompasses businesses and legal personalities), be recognizable and identifiable based on the defamatory information, and be individually affected. If a court finds that the defendant is guilty of defamation, it can issue an injunction, demand a retraction, issue damages, or provide the plaintiff with a right to reply. With the right of reply, the individual affected by the defamatory statement can have the publisher issue their reply in a prompt manner that is similar to how the original defamatory statement was issued.

A recently decided civil defamation case was one regarding Renate Künast, a member of the German Green Party. In 2016, a blog post falsely alleged that she was a pedophile or was lenient on pedophilia. Following this post, numerous Facebook users made further offensive and disparaging remarks against Künast. In response to this, Künast sought injunctive relief and damages against the blog owner and against Facebook. The lower court held that Künast was a public figure and had a higher threshold to prove defamation and that the social media posts were a form of expression that was protected. On appeal to the Federal Constitutional Court, the court laid out the guiding principles to assess whether the opinions were subject to the freedom of expression and that each comment had to be reviewed by the lower court in an individual manner. Furthermore, the lower court had to balance the right to freedom of expression with Künast's general right to personality. The lower court decision was reversed and remanded. This shows that in Germany, the right to expression must be balanced with the right to personal honor in the defamation context.

Memory Laws and Hate Speech

Memory Laws

§86 of the Criminal Code (Dissemination of propaganda material of unconstitutional and terrorist organisations) outlaws the distribution of "the content of which is intended to further the activities of a former National Socialist organisation" and §130 of the Criminal Code (Incitement of masses) punishes "Whoever publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism". While these statutes do not explicitly mandate that the public believe in a certain opinion, the effect of the statute results in the limitation of expression with respect to Germany's fascist past. The statutes have the effect of barring any endorsement or mitigation of the truth of atrocities committed by the Nazi regime. The reason for Germany's approach to its Nazi past is Vergangenheitsbewältigung (“coming to terms with the past”). This is the idea that the nation must face and interact with its past actions and acknowledge the harmful actions that have been committed. Based on this, Germany hopes to understand how these actions ended up happening and how they can be avoided in the future.

Interestingly, Vergangenheitsbewältigung has been criticized for its unequal application as Germany does not provide the same amount of recognition to the crimes it has committed in its colonial past or in its practice of slavery. Additionally, the application of the practice has failed to be adequately performed in rural areas that still have antisemitic beliefs.

Hate Speech

Nix v. Germany was an ECHR case that involved a German citizen who was blogging about discrimination his daughter had experienced in the Employment Office in Germany. In one of his posts, he posted a picture of former SS chief Heinrich Himmler in an SS uniform and with a Nazi armband and symbol on his front pocket. The blogger had tried to equate his daughter's treatment by the government official to Himmler. The local court found the blogger guilty of violating §86 of the Criminal Code and the Federal Constitutional Court refused to hear his appeal. The ECtHR held that while prosecution interfered with his freedom of expression, the interference was allowed by law and acceptable in light of the circumstances. Mainly, given Germany's historical context, it had a significant interest in prohibiting the use of Nazi symbols. Given that the blogger's post was out of the context of how his daughter was treated, the ECtHR held that the domestic courts did not err in considering only the use of the Nazi imagery.

The Case of Mr. K was a Federal Constitutional Court case that upheld the criminal connection for incitement and that the accused's right of freedom of expression did not allow for his statements. In 2016, Mr. K was the regional chairperson of a right-wing party and he published anti-Semitic articles on the party website and called for the boycott of the Jewish community. He was charged under §130 of the Criminal Code and the lower court held that his expression implicitly addressed individuals in a manner that was historically done by the Nazis and did not treat them with respect to their dignity. The Federal Constitutional Court affirmed the decision. While the court stressed the importance of freedom of expression, it noted that in light of German history, the legislature could pass laws that punished glorification of the Nazis. While Mr. K may not have explicitly praised the Nazis, his actions threatened the public peace and transitioned to aggression as he was acting against the Jewish community in a manner that was consistent with the Nazi regime.

At the lower appellate level, Ein Prozent v. Facebook Ireland Ltd. is an illustrative case about the role of social media in the context of hate speech. Ein Prozent was a right-wing organization that made a Facebook post that published the name and details of a journalist and encouraged its followers to "drop by" at his location. Facebook deleted Ein Prozent's post and blocked his account as it was a violation of the Facebook Community Standards. Eventually, Ein Prozent's appeal to Facebook resulted in the deactivation of the account and they were categorized as a "hate organization" under the Facebook Community Standards. Ein Prozent asked for an injunction by the lower court against the deletion of the post, deactivation of its account, and its classification as a hate organization. Ein Prozent argued that its post was not hate speech and did not violate the Facebook Community Standards. The lower court ruled in Facebook's favor and the appellate court affirmed. The Dresden Higher Regional Court held that the Facebook Community Standards had to comply with the German Civil Code. Given the terms of the German law, Facebook had to establish and enforce its standards consistent with the German law or else it would be subject to state action. The actions that Ein Prozent were in violation of those Facebook Community Standards. This case shows that private actors may be required to handle hate speech on their platforms to stay in compliance with German law. This shows the emphasis can be placed on one private entity and can have effects in regulating the expression of third-parties indirectly.

Cultural and Religious Expression

Cultural Expression

Constitutional Provisions for Cultural Expression

The Basic Law enumerates freedom of expression, arts, and sciences in Article 5. Article 18 provies a provision for the forfeiture of basic rights. It notes that "Whoever abuses the freedom of expression, in particular the freedom of the press (paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5)...in order to combat the free democratic basic order shall forfeit these basic rights. This forfeiture and its extent shall be declared by the Federal Constitutional Court." This shows that individuals have freedom of expression but it can be foreift if the individual uses it to undermine Germany's democratic order. To provide a form of protection against abuse of Article 18, the provision requires the review from the Federal Constitutional Court. Based on these constitutional provisions, German press has been able to establish a strong independent body that is capable of self-regulation and minimal government influence. This free press helps hold individuals in government accoutnable and provide facts and arguments for public discourse.

German Cultural Festivals

Oktoberfest

The first Oktoberfest was to celebrate the marriage of the Bavarian Crown Prince, Ludwig, to Princess Therese in 1810 and it lasted 5 days. After the first celebtation, the public demanded a consistent celebration and was used as an opportunity for the Bavarian agricultural industry to interact with the public and generate revenue. This tradition has continued until today where people visit from around the world to celebrate the folk festival and consume Bavarian beer and learn more about Bavarian culture.

Oktoberfest Celebrations

The intersection of Oktoberfest with law can be seen in the Reinheitsgebot. These are commonly known as "beer laws" that are to ensure the quality of beer. First issued in 1516, the decree was to protect drinkers from high prices, limit the use of wheat in beer production (to protect the bread supply), and to prevent the adulteration or addition of harmful additives to beer. While it was initially a decree issued be the local duke, the Reinheitsgebot became law in Germany in 1906. Over time, the limitation on wheat ware removed and now the law allows solely allows the use of malted grains, hops, water, and yeast in beer production.

Karneval (Fasching)

Karneval celebration in Cologne, Germany

In Cologne, locals celebrate Karneval, or the "fifth season". This is a four month celebration from the 11th day of the 11th month (November 11. The exact time of the start is 11:11) all the way to Ash Wednesday. Celebrations include parties, parades, and a tradition of women cutting off men's ties. The celebrations conclude with the burning of the Nubbel. This is the burning of a dresssed straw doll at midnight and is said to absolve partiers' sins that are commited during the festival.

Other than local ordinances, there is no direct "law" that controls Karneval. However, there are traditions that encourage participants to conform the manner of celebration. For example, participants are encouraged to wear bright colors and yell out Karneval-related cries that are associated to specific districts. However, Karneval celebrations should be kept separate from private-sector employment. Employers still expect professional attire and conduct when employees are in the workplace. Additionally, the tie-cutting tradition is discouraged in the workplace. Cutting off ties without consent can be considered as damage to property and result in a warning letter from the employer.

Religious Expression

Constitutional Provisions for Religious Expression

Article 4 of the Basic law enumerates freedom of faith and conscience. In particular, paragraph 2 of Article 4 establishes that "The undistrubed practice of religion shall be guarnteed. Additionally, paragraph 3 of Article 3 ("Equality before the law") ensures that there will be equal treatment and "no person shall be favoured or disfavored because of...faith or religious...opinions." This provides protections for people to practice their faith without concern for discrimination.

Statutes Relating to Cultural Expression

§166(1) of the Criminal Code is considered to be the "blasphemy law". Titled "Revilement of religious faiths and religious and ideological communities", this law provides a penalty for anyone that reviles the religion or ideology of others in a manner that causes a disturbance to the public peace. However, this section is rarely used. Between 1969 and 2012, only 10 people were convicted of breaking this law. §167 of the Criminal Code protects religious exercise. Any person that is charged with disturbance of exercise of religion under this law can face up to 3 years of imprisonment.

Law With Respect to Religious Expression

While the Basic Law and Criminal Code protect religious expression and belief, the practice of faith is balanced with praktische Konkordanz (practical concordance). The right to wear religious symbols in the workplace is protected. A ban on religious symbols is only permissible when there is a concrete risk of harm to significant interests. This is assessed on a case-by-case basis. Individuals are free to wear religious symbols in both the public and private sector. Recent case law has been more tolerant of religious expression. Bans on religious symbols require a concrete harm to significant interests. So, in cases of the civil service, the government may be able to argue that there is a concrete harm on the neutrality of the State when government employees were religious symbols.

Based on the freedom of faith, Article 4(3) protects conscientious objectors from military service that involves the use of arms. While the case law with respect to German citizens is limited, the asylum claims of foreign citizens that claim to conscientious objectors under religious grounds has recently been reviewed by the courts. On January 16, 2025, the German Federal High Court allowed the extradition of a Ukrainian conscientious objector. In contradition with a 1977 decision, the court held that the foreign government's right to self-defense outweighed the individual's right to refuse military service. Furthermore, the court distinguished the Bayatyan v. Armenia ECtHR case that protected conscientious objection on religious protections provided by Article 9 of the ECHR. The court argued that Article 9 can be suspended in wartime under Article 15 of the ECHR and protection of the Article 4 of the Basic Law did not apply.

The Federal Constitutional Court has emphasized state neutrality in situations of religious symbols in the classroom. In the Crucifix cases of 1973 and 1995, the Court noted there is a difference between state and private symbolism. In the 1973 case, the Court recognized the crucifix as a strong Christian symbol and the State had required its placement in the classroom. This was not done by a private person. Due to this, the Court recognized the symbol as an embodiment of the state authority and it therefore violated the state neutrality principle. In the 1995 case, Bavarian law required the placement of the crucifix in each public school classroom. Bavarian law had tried to establish it as a symbol of cultural heritage, rather than a symbol of religion. However, the Court disagreed. It noted that it was inherently religious and placed in a manner that it could not be avoided. This created a state-sponsored religious messaging that violated state neutrality principles. The court noted that if the symbol was worn by a private person, such as a teacher, it may be different. However, the State could not impose wearing or displaying the symbol either as a religious or cultural symbol. In conclusion, the Court emphasizes the state to act neutrally and is more permissive of religious expression if it is by a private individual.

The German Crucifix cases had an impact on the seminal ECtHR case of Lautsi v. Italy. In that case, the ECtHR recognized that Germany had ruled based on the principle of state neutrality and that the Bavarian parliament violated that neutrality. The ECtHR noted that the Federal Constitutional Court found the crucifix to be more than a passive symbol and that "it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible." Ultimately, the ECtHR found the cross to be a passive symbol and that the state could place crucifixes in the classroom for Lautsi v. Italy.

Privacy and Data Protection

Privacy

History and Constitutional Approach to Privacy

Article 10 of the Basic Law ensures the privacy of communications through "correspondence, posts and telecommunications." Privacy guarantees can also be found in Article 1 and 2 of the Basic Law. These ensure that human dignity is inviolable an death person has the right to life and physical integrity. These constitutional assurances have been considered to extend to privacy rights.

Immanuel Kant. His philosophy would provide the groundwork for the German legal approach to individual privacy.

German society has a strong tradition of privacy protection in the idea of freedom and personality. Such ideas are rooted in the philosophies of German thinkers like Kant, Humboldt, and Hegel. In the 1880s, German jurists shifted from laissez-faire ideas towards protectionist policies and prioritizing social insurance. This shift was towards neo-Kantianism and was at tension with ideas of absolute personal liberty. To German jurists, this was more true towards the idea of freedom as they believed it would provide privacy protections that allow for "free self-realization". Based on these philosophies, German legal thinkers shifted from the idea of liberty towards dignity. This established a tradition where privacy became a component for "free self-realization". Based on these ideas, Germany has created strong legal protections for privacy. Privacy is considered an important feature to ensure political participation and a thriving democracy.

Privacy Considerations During COVID Pandemic

The Corona-Warn-App that Germany created to address the COVID pandemic. Germany had to balance privacy interests along with the data collection needed to ensure public welfare.

During the COVID pandemic, the German government imposed mandatory regulations and also encouraged voluntary compliance. The pandemic response was undertaken by the federal government rather than the regional governments. This ensured that there was uniform application of the response to COVID. As part of its response, the German government addressed the privacy concerns of its COVID monitoring app with transparency. This included public messaging that it was to protect the community and that data privacy would be respected. Additionally, the government emphasized the IT security standards utilized and ensured proper encryption of user data. Primarily, the German government used rhetoric that there were moral values at stake in using the technology and showed how it was in compliance with privacy rules.

In a Bavarian high administrative court, a case (No. 20 NE 21.926‎) regarding an alleged privacy infringement and a right to education was assessed. The Bavarian state had issued a regulation that required a negative PRC or antigen test at the beginning of the school day that needed to be presented. Alternatively, a student could perform a supervised self-test at the school to ensure a negative result for COVID. The test results were for the purpose of maintaining school safety and reporting obligations were under the Infection Protection Act, that barred the transmission of the data to third parties. A student challenged the regulation and argued that it was an infringement on the right to education as it may result in prohibition on participation in the class. Furthermore, the student argued distance learning would also violate Bavarian law that required class attendance. The court balanced the interests of the educational right and the public health concerns and rejected the student's claim. In its rationale, the court noted that the testing requirement did not bar the students from education as a positive test result merely meant that they had to use distance learning. For students that refused testing, they could still be educated by distance learning as well. Furthermore, the court noted that it needed to consider the public health concerns that required the testing obligation and distance learning option. It reasoned that during a period of increased infection, the testing requirement could be imposed. With respect to the allegations of violation of privacy, the court noted that the tests were private. If the student was concerned about their health status remaining private, they could simply refuse the test and take the distance learning option. Additionally, the tests were under regulations that required them to be kept only for a maximum of 14 days and transmission to third-parties was prohibited.

ePrivacy Directive

In addition to the GDPR, Germany, as a EU member, imposes the ePrivacy Directive (also known as the cookie-directive). The original ePrivacy Directive is Directive 2002/58/EC on Privacy and Electronic Communications. It was amended by Directive 2009/136/EC which came into effect in 2011. The ePrivacy directive covers the processing of personal data and the protection of privacy. This includes provisions regarding the security of networks and services, calling line identificaiton, spam, and access to stored data. A major change to the 2002 Directive was a rule that required notification of data breaches to affected parties and further strengthening of enforcement rules.

The Directive requires providers of electronic communication serves ensure that their services are secure. This includes making sure that any personal data, like personally identifiable information (PII), that may be shared via the services is secure. Furthermore, the Directive controls how companies are storing the data and imposes an obligation to erase or anonymize data when service providers no longer need it. Otherwise, a user must consent to the data being retained.

Mass Surveillance

Germany is one of two European nations that has constitutional provisions that explicitly address surveillance. Article 13 of the Basic Law establishes the home as inviolable and surveillance can only be justified for investigation of serious crimes or dangers to public safety. In particular with acoustic based surveillance, the Basic Law prohibits mass surveillance and only allows limited and targeted monitoring. However, beyond a requirement of having a legal basis for surveillance, the Basic Law does not prohibit mass surveillance practices and is instead limited by the rights and privacy concerns of individual.

In 2010, the Federal Constitutional Court rejected legislation that would have required all electric communication traffic data to be retained for 6 months. The Court ruled that data storage was not secure and the government failed to clearly establish what purpose the storage served. With the priority towards citizens' privacy, the Court ruled against the government as they considered the data retention to be an intrusion on privacy and created an atmosphere where citizens would feel they were under observation. The holding required the immediate selection of already collected data and required the government to establish clearer and stricter conditions for data use and storage.

Addressing Spam and Unsolicited Messaging

As a member of the EU, Germany is subject to the GDPR and requires parties to comply with its provisions. The GDPR has strict requirements for consent, which must be unambiguous, freely given, specific, and informed. While some nations only impose a single opt-in consent, Germany requires a double opt-in consent in some instances of direct marketing. This requires the individual to give their first consent in opting in, then the company must send a verification email to the individual, then the confirmation email needs to have the individual to opt-in a second time, and finally, the company can start sending marketing to the individual. This is particularly used for SMS direct marketing.

In cases where an individual receives unsolicited or unwanted messaging, they can issue a complaint on the Verwaltung digital page. This provides a form of enforcement by the government against companies that violate individuals' personal rights and privacy without consent to market.

Right to Bodily, Spiritual, and Digital Identity

Regulation as an EU member

As an EU member, Germany complies with the eIDAS regulation. This is for the purpose of cross-border transactions and providing a digital identity and means of authentication across the EU. This unifrom approach provides for consistency in identification across the EU memember states acn can enable secure electronic transactions. This centralized approach allows for individuals to be able to submit their taxes, enroll in schools, establish business, and bid on online calls all via the same identification mechanism. The long-term goal of the eIDAS system is to allow for internat payment authentication and banking.

However, the eIDAS system has faced criticism for an alleged lack of security and digital safety. Critics claim that the eIDAS can be improved with biometric features for digital identification and authentication of a person. Currently, eIDAS uses a strong chip-based encryption scheme. However, proponents of biometric identification encourage further integration of biometrics and the use of mobile phones to further ensure privacy and security of the eIDAS system.

An example of a German ID card

German ID Cards

For more day-to-day usage, Germany requires the use of Personalausweis (German National ID). This is a credit-card sized ID card that is commonly used as proof of national ID. The EU's eIDAS system is integrated into the German ID cards and can be used as a travel document in the Schengen zone.

The Personalausweis has been widely acknowledged as one of the most secure forms of government ID. Recently, the German government has transitioned to ID cards with stronger hardware and software that can protect against forgeries. Due to concerns of stronger encryption-breaking, the German Government has been working to further strengthen encryption mechanisms.

German Genetic Diagnostics Act

Implemented in 2010, the Gendiagnostikgesetz ("German Genetic Diagnostics Act" or GenDG) regulates genetic testing for establishing parentage, insurance or work purposes, or medical purposes. It covers traditional genetic testing of humans as well asymptomatic any other testing that may reveal genetic information of a subject. The GenDG requires all genetic tests to be done with a detailed statement of the nature of the test, the scope and purpose of the test, and patient consent.

However, the GenDG has faced criticism for certain gaps in actual practice. Critics claim that the protections, such as requirement of consent, counseling, and non-discrimination, are not always actually respected in the consumer context. Specifically, in instances of research or samples that are used in biobanks, the GenDG has minimal application. Furthermore, in the non-medical context and direct-to-consumer testing, the GenDG does not apply. So, in cases of non-medical testing, sensitive genetic information is less protected and can be gathered by third parties that are not held to the same standards that GenDG requires in the medical context. Finally, the consent requirement has faced criticism as the German Ethics Council has remarked that the GenDG is unclear about instances where a person may not be able to consent.

Self-Determination Act

A world map showing nations (and US states) that allow for gender self-identification. Germany is part of the nations that allow for ender self-identification.

In 2024, Germany's Self-Determination Act came into effect. This law allows for individuals to self-declare their gender marker. A person can change their first name and gender marker with a simple declaration to the Standesamt (registry office) and removes the need for a judicial ruling. This Act replaces the 1980 Transexuals Act that was mostly ruled to be unconstitutional by the Federal Constitutional Court. In 2011, The Court had ruled that gender identity could not be determined solely on physical sex characteristics and can be influenced by self-identified gender. This is grounded in the right to free personal development that is enshrined in Article 2(1) of the Basic Law ("Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.").

The Self-Determination Act places an individual's right to self-identify their gender into law and helps fight discrimination while promoting respect for gender diversity and self-identification. However, critics argue that the Act does not do enough to protect the right to self-identify for people in unsupportive family environments. Additionally, there is a concern that it restricts migrants and refugees from changing their gender as the law requires permanent residency. This raises concerns about unequal application of the law for migrants and refugees. Furthermore, the law does not address concerns about gender identity in the context of health services and sports. The law merely extends to self-identification in personal identification.

Right to Reject Information and Right to Clothing

Right to Reject Information

Right to Object/Erasure

Article 17 of the GDPR establishes the right to erasure (right to be forgotten). It states that an individual has the right to erasure of personal data concerning them without undue delay from a controller. This is when the personal data is not nrecessary for the purpose it was collected or processed, the subject withdraws consent for processing or objects to the processing, or if the data processing was unlawful. Typically, the undue delay requirement is considered to be about one month and the provider must take reasonable steps to verify the person requesting the erasure is the actual subject of the data.

In the Court of Justice of the European Union (CJEU), a case regarding the "right to be forgotten" was held in 2014 under the name Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González. In this case, Mario González complained that a Google search engine result showed an old newspaper announcement about his past enforcment proceedings. He asked the newspaper to remove the publication and Google to remove search results linked to his name. The Spanish agency asked the CJEU about the applicability of the EU data protection laws and if the right applied against search engines. The CJEU ruled that the search engines were data controllers and the data protections applied to the search engines. This resulted in the application of the right to erasure under the GDPR and required search engines to consider the individual requests to remove links about personal information and weigh the public and personal interests.

Through its jurisprudence, Germany has established a right to be forgotten. Through the rights of privacy, self-preservation, and informational self-determination, German courts have created a right to be forgotten. In 2019, the Federal Constitutional Court applied the right to be forgotten on an EU law that was central to a dispute between an individual and a broadcasting corporation regarding the request to delist links to online information about the individual. The Court noted that the while the constitutional complaint failed, the legislature can create a domestic right to forgotten where the EU law allowed for national level legislation. Here, German constitutional claims could be brought, unless there was an EU law that superseded the issue.

In another case (1 BvR 16/13, Decision of November 6, 2019), the Federal Constitutional Court held that the general right of personality must be considered in assessing the "right to be forgotten" claims. That is, the right must be considered beyond mere data-protection and informational rights. While the right to erasure is not absolute, the court balance the individual rights with the public interest. In this balancing test, the individual's interest in rehabilitation, privacy, and a life without stigma must be considered against the public's interest in freedom of the press, historical record-keeping, and access to information. An important consideration is the temporal scale. The court must consider how long and how widely the information is available and if the long-term availability of the data can harm the individuals rights.

Informational Self-Determination

The term "informational self-determination" was used by the Federal Constitutional court in 1983 on a census case that involved data collection. This established the protection of privacy with respect to personal data and gave the individual the right to determine their personal data and control over it. This has now become a guiding principle in cases about data sovereignty.

The 1983 Census Judgment case, was an issue where the public resisted door-to-door survey questions that were deemed to be personal because it was unclear what would happen to the collected data after the census. The Federal Constitutional Court stated that there was a considerable and unjusitified encroachment on the personal rights that would pose continue to pose further threats to the public. There was a concern that there were insufficient organizational and procedural guardrails that would reduce the risk to personal rights. Due to this, the court held that a person needs to have power over what personal data is collected and what happens after the intended purpose of data collection is completed.

This decision would have an impact on the drafting of the GDPR as it influenced the act with respect to the protection of personal data from unlimited and uncontested data collection. The purpose of right is to protect privacy and ensure that there is the individual's control and right to their information is not outweighed with modern data collection and storage techniques that can be sweeping.

Cookie Consent

An example of cookie tricking. Users are drawn to a colored option button that encourages the user to select and approve use of cookies

Germany's cookie consent is controlled by the GDPR and Telecommunications-Telemedia-Data Protection Act (TTDSG). German cookie regulations apply to all entities that have websites that are accessible to German users. German law requires explicit user consent before activating cookies. In cases where cookies are needed for the functioning of the website, rather than for data gathering purposes, the consent requirement is exempted.

Failure to comply with German law regarding cookies includes written warnings, fines, and election of data that was collected without consent. The GDPR allows for fines to reach up to €20 million or 4% of the global revenue, whichever is higher. Regulation consistent with the law is enforced by the BfDI and the Federal Network Agency.

Right to Withdraw Consent

Article 7(3) of the GDPR allows for individuals to withdraw their consent to the processing of their personal data at any time. The withdrawal does not have any impact on the legality of the data processing before the withdrawal. Additionally, withdrawal does not automatically require the deletion of personal data. There has been criticism against the GDPR for being vague about the company's obligations after the withdrawal of consent. A proposal to address this vagueness is that all future processing should be stopped and the company is allowed to partially retain already processed or anonymized data. The proposed framework has encouraged a balanced and case-by-case framework to ensure that there is flexibility for companies while retaining the data protections for German citizens.

Right to Clothing

Textile Labelling

In 2016, Germany fully replaced its Textile Labeling Act with EU regulations. There regulations establish requirements for the proper labelling and marking of fiber compositions of textiles. This is done to ensure durability, legibility, visibility, and accessibility of the textile label for purpose of identification.

Cultural Clothing

Historical picture of dirndls and lederhosen

Dirndls and lederhosen are two famous cultural articles of clothing in Germany. While it is specifically a Bavarian attire, Germany culture is internationally associated with these clothing articles and their relationship to Oktoberfest. The lederhosen was work wear for male German peasants. Dirndl was the female parallel to the lederhosen and was also historically a peasant's outfit in Bavaria.

Relationship of Clothing with Religious Expression

Right to clothing and religious expression has been of legal concern. In the teaching field, the Federal Constitutional Court has favored to protect the religious expression of teachers and students in the classroom environment. So, teachers have been allowed to wear headscarves and schools are prohibited from ordering students from removing their niqabs. In the teacher headscarf case, the Court held that the ban was incompatible with the teacher's freedom of faith. The court found that the headscarf ban disproportionately affected Muslim women and raised equality concerns under Article 3 of the Basic law. The state's reason for the ban were found to be abstract concerns about "peace" that were unsubstantiated. There was no specific or concrete danger posed by the teacher wearing her headscarf. Given that she was not proselytizing or using here government position to intrude on the rights of the parents or children, the Court found that the government had a limited interest in establishing a ban.