Defamation – when you are verbally attacked for what you say

Middle East scholars in Germany report self-censorship when researching into the conflict between Israel and Palestine, the dynamics of political violence and the historical causes. In the context of German debate about the conflict, academics – both supportive and critical of the Israeli actions – are affected by heated political debate which is often not interested in engaging with arguments but seeks instead to discredit individuals. This is damaging not only for the affected scholars but also by sapping the academic expertise available to the public. 

Scholars who have criticized Israel publicly for the violence inflicted on Palestinians are often accused of antisemitism, followed in some cases by cancellations of events, academic prizes or guest professorships. While newspapers have reported on the cases of renowned scholars such as Judith Butler or Nancy Fraser, many more scholars have seen their critique of Israel denounced as what is called Israel-related antisemitism. These accusations of antisemitism can damage an academic career, especially for junior researchers.

Accusations of Israel-related antisemitism are unpredictable because the very definition remains contested, not only in the political world but also among scholars. Academics researching antisemitism agree that an appropriate definition of antisemitism needs to encompass contemporary forms of antisemitism which, in many cases, are more subtle than in the past. However, there is disagreement in the scholarly community about the exact definition, and in particular about the line between antisemitic and legitimate criticism of the Israeli state. In this regard, proponents of the Jerusalem Declaration on Antisemitism argue that the examples provided by the IHRA working definition of antisemitism have allowed the use of accusations of antisemitism to silence unwelcome criticism of state policy.

Media law regulates at which point public accusations amount to defamation, with German criminal law and anti-discrimination legislation defining limits to the freedom of speech wherever there is an incitement to hatred. While there are legal remedies available, they are often not able to redress the damage done to a reputation. Moreover, experts repeatedly warn that legal responses might be costly and only draw more attention to the case. Against this backdrop, there are important considerations for academics in Germany that can help them to navigate the situation and any legal steps. More importantly, the public exposure of individual scholars requires universities to publicly reaffirm their support for the academic freedom of their staff. Regardless of whether they agree with a statement or not, as an employer they should publicly uphold the freedom of speech of their employees, which is also a requirement of labor law. 

ECCHR 

Unlawful statements made to third parties and public statements of a nature that is offensive, untrue or damaging to somebody’s reputation may violate that person’s general personal rights, which are protected by the constitution, or even criminal law. The legal classification depends first and foremost on whether the statement is an expression of opinion or an assertion of fact:

• Statements of fact are verifiable, i.e., they can be true or false. If the statement is demonstrably false, its dissemination is unlawful.
• Expressions of opinion are statements or value judgments that are protected by fundamental rights, even if they are harsh, polemical, or exaggerated. Expressions of opinion are only inadmissible if they can be classified as abusive criticism, formal insults, or if they violate personal rights as protected under German Basic Law. In each instance, the individual right to freedom of expression on the one hand, and general personal rights and human dignity on the othere, must be weighed against each other. 

Katrin Giere (attorney) 

If the statement expressed constitutes a criminal offense, a criminal complaint may be considered. Criminal offenses include: insult (section 185 of the German Criminal Code), defamation (section 186) and slander (section 187). Note that the time limit of the aforementioned offences for filing charges is three months from the incident. This can be done independently at the competent police authority, online or through a lawyer.

If the goal is to stop a statement as quickly as possible, civil law is the best option (see below). 

As a first step, you need to secure evidence! In the case of statements made on the internet, it is important to secure evidence as quickly as possible, as they may be deleted, such as stories on social media, which are usually only visible for 24 hours. 

• Take screenshots of the statement with time stamps. Since statements are always examined in context, it is also important to save the storyline, any previous statements, as well as any related comments on social media.
• Name, address and email address of the person infringing your rights: to ensure effective legal protection, it is important to have this information, because without a deliverable address, out-of-court measures are possible but going to court is not. 

Important: Statements can also be banned by a cease and desist declaration even if they are no longer available online/publicly. The person affected by the ban is then prohibited from making such statements in the future.

Expected future statements can only be banned under very strict conditions. This means that it is not normally possible to apply preventive protection to specific statements.

When considering how to take action against defamation, the following points should always be taken into account: 

• A (extra)judicial dispute can generate (renewed) media attention.
• Right of “counterattack”: the more critical and drastic I am in my statements about others, the more I have to accept in statements about myself.
• Self-disclosure: privacy protection does not apply in cases of so-called self-disclosure. This means that the more I reveal about myself in public, the more I put myself in the public eye, the more reporting on this public sphere I have to tolerate.
• If you plan to publish something yourself and are unsure about the legality of the statement, the written report can be checked in advance by a media law firm. 

Katrin Giere (attorney) 

The unauthorized use of photos — for example, in the context of (media) smear campaigns — can constitute an infringement of the right to one’s own image. It becomes particularly problematic when images are embedded in a way that changes the context, stigmatizes or degrades. 

Principle: Images may only be published with the consent of the person depicted for the agreed purpose, § 22 KUG. Exceptions apply, for example, to persons of contemporary history or events of public interest, § 23 KUG. However, even in these cases, publication may be unlawful if it is derogatory, taken out of context or deliberately defamatory. 

Please note: Consent does not have to be given explicitly; it can also be implied, i.e., tacitly declared through the behavior or actions of the person depicted. This is the case, for example, when a person stands in front of the camera, poses, smiles or gives an interview. 

Freedom of the press also protects use of images in reporting — but only if the person depicted has given their consent or if an exception applies. In the case of images of private individuals who are not in the public eye and/or without factual context, personal rights generally prevail, and the use of the image may be prohibited. 

Exceptions that may apply are: 

• Images from the field of contemporary history: This includes images of persons who are of legitimate public interest, such as politicians, activists or persons who consciously engage in public debate. Participants in demonstrations or public events may also fall under this category, but only in the context of reporting on the event. This may also be the case for a current event that is of public interest. The person does not necessarily have to have been in the public eye before.
• Assemblies, marches and similar events: In the case of public gatherings, such as demonstrations, images of the event in which individuals are recognizable can be legally published. However, this does not apply to close-ups of individuals, who not take centre stage through speeches or other actions or if this results in stigmatization or defamation. 

The protection of privacy is weakened or may be waived if the persons concerned have consented to the publication of matters that are usually considered private. 

Legal remedies: 

• Under civil law, a warning letter may first be issued demanding a cease-and-desist declaration. If there is no response or if the declaration is not signed, the claim for cease and desist can be enforced in court (sections 823, 1004Civil Code).
• Under criminal law, intentional unlawful publication of an image is punishable by a fine or imprisonment. 

Proper documentation of the infringement is also important in relation to image rights. The publication of an image should therefore be stored in a legally secure manner (time-stamped) together with its context.

In the context of the debate and protests related to the Israeli-Palestinian conflict, the identifying portrayal of activists or researchers has increasingly been used as a means of pressure. There are cases in which the media and individuals publish sensitive data such as names and photos of those affected and place them in a false context. This frequently constitutes an unlawful infringement of personal rights, as the result is often stigmatization and defamation. In such cases, legal advice is recommended.

Katrin Giere (attorney)