For a long time, infringing statements in the media have constituted a criminal offense. As early as the 19th century, press laws addressed the criminal liability of publishers, editors, or printers. The Internet and the associated ability to distribute photos, films, articles, and other content on a massive scale without financial and organizational effort has also increased the importance of criminal law in the media. Today, there are many criminal provisions in the German Criminal Code (StGB) and ancillary criminal laws that sanction illegal statements in the media.
Distribution of photos and films
According to § 201a StGB, the creation or transmission of images (photos or films) can already be punishable if the person depicted is on private premises or in a room protected from view or if the helplessness of this person is exhibited and the highly personal private sphere of the person depicted is violated as a result. This provision supplements § 33 KUG, which has been in place for over 100 years and originally only punished the dissemination and public display of an unauthorized photograph (and not the creation). In addition, § 201a StGB also makes the transfer and use of such images, as well as making them available to third parties, a punishable offense. Photos and films that are insulting to another person can also be punishable under § 185 StGB. If such photos and films are considered pornographic, their distribution is punishable under §§ 184 et seq. StGB.
Dissemination of texts on the Internet
If defamatory statements about other people are made in texts such as reviews, blog posts, comments, articles, websites, etc., criminal liability can also result because of offenses against personal honor (§§ 185 et seq. StGB). The dissemination of untrue factual allegations can also constitute malicious gossip (§ 186 StGB) or defamation (§ 187 StGB). If the statements concern less the personal rights of individual persons or companies, but rather the legal order itself, numerous criminal offenses can be committed, e.g., by disseminating propaganda material of unconstitutional organizations (§ 86 StGB), the disclosure of state secrets (§§ 93 et seq. StGB), public incitement to commit criminal offenses (§ 111 StGB), incitement to the masses (§ 130 StGB), or depictions of violence (§ 131 StGB). The violation of the personal life and private sphere of third parties can also lead to criminal liability, for example, in the case of a violation of the confidentiality of the spoken word (§ 201 StGB) (e.g., recording private statements made by another person) or the exploitation of trade or business secrets (§ 204 StGB). Anyone who offers, provides, makes accessible, or otherwise uses media harmful to minors with texts, images, or sounds can also commit a criminal offense under the German Youth Protection Act (§ 27 JSchG).
Special features of copyright criminal law
It is often overlooked that the intentional infringement of copyrights and ancillary copyrights can also be punishable under §§ 106 et seq. German Copyright Act (UrhG). Works and adaptations are protected by copyright within the meaning of §§ 2 et seq. UrhG. These can be, for example, linguistic works, musical works, photos, or works of visual art. In addition to works, the performances of artists or the recordings of record producers and film producers are protected as neighboring rights. The criminal liability of copyright infringements used to play a role in file-sharing cases, because rights holders could only access the IP addresses of the offenders via criminal investigation procedures. However, since the rights holders now have a judicially enforceable right to information about traffic data against the providers in § 101 UrhG, these investigative procedures are no longer necessary. In the field of software piracy, however, the criminal liability of copyright infringements still plays a very important role.
Are journalists and the press always privileged?
In principle, journalists and the press are not privileged under criminal law. The press laws of the German member states also regularly refer to the applicability of the general criminal laws, although these would also apply without such a reference. The laws briefly described above must therefore also be observed by journalists. In the case of criminal prosecution, however, journalists can invoke their right to refuse to testify vis-à-vis investigating authorities and courts and thus refuse to provide the names of their informants as well as the information they have gained from them. However, this does not apply to content and material prepared by the journalists, as well as their own impressions, in cases in which their testimony is needed to help solve serious crimes, such as treason against peace, a crime against sexual self-determination, or money laundering.
I would be glad to advise you on all questions of media criminal law, for example, when examining the possible criminal liability of intended media publications, if you have been the victim of a crime, or if it is a matter of safeguarding and representing your rights vis-à-vis investigating authorities, prosecuting authorities, and criminal courts. As a specialist lawyer for copyright and media law, I have specialized in this field for many years.
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