The mini-Erdogans of Berlin

Photo by engin akyurt on Unsplash

Dear Reader,

Fun fact: call someone a ‘moron’ in Germany and you could, theoretically, end up in jail.

In the German criminal code, there is a whole category of crimes called Ehrdelikte - crimes of honour - which include everything from spreading lies about another person to merely insulting them.

This is quite different to countries with common law (like England or the US) where libel and slander are matters for civil courts.

In Germany, Verleumdung (libel) and üble Nachrede (slander) are crimes that are investigated by prosecutors. This puts insane stress on the poor prosecution services, who are stretched to the limit as it is.

But it gets even crazier. There is a lower level of honour crime in Germany that has no equivalent in the Anglosphere. The crime of Beleidigung (insult) comes with a maximum penalty of two years in jail, although perpetrators normally escape with a fine.

Far from being a dusty relic that only exists on the statute books, Beleidigung is one of the most commonly reported crimes. Last year, police dealt with over 200,000 such complaints.

But, what is an insult? The fact that one person’s taunt is another person’s freedom of expression has long tormented the legal system.

Some instances, such as abuse hurled at star virologist Christian Drosten back in 2020, are uncontentious. 

The scientist, who advised the government on its lockdown policies, was staying on a campsite when two other campers recognised him and called him a “mass murderer” and “a criminal.” In the subsequent trial, the judge found that the insults had demeaned Drosten and issued fines of over €1,000.

A much more contentious incident took place in 2016, when a comic performed a gratuitous poem about Turkish president Recep Tayyip Erdogan on television.

Late night host Jan Böhmermann read out rhymes that alleged that Erdogan had sex with goats, took pleasure in beating little girls and had private parts that “stink like döner and are even worse than a pig’s fart.”

At first glance, this would seem to be a cut and dry case of an “insult crime” - and racist to boot. But context is everything!

Böhmermann, liberal Germany’s favourite comedian, performed the poem in response to Erdogan demanding satisfaction for a much milder song that a rival German satirist had performed. 

Called Erdowie, Erdowo, Erdogan (a reference to a hit by pop singer Nena), the song took aim at Erdogan’s human rights record. It was dropped in the middle of negotiations between the EU and Ankara on a deal to end the migration crisis - and didn’t go down well with the famously thin-skinned Turkish autocrat. 

After it was aired, Ankara called in the German ambassador and demanded that it be deleted from public broadcaster ARD’s streaming site.

That intervention led to uproar in Germany over Erdogan’s attempts to suppress freedom of expression. Then, Böhmermann dropped his poem. Addressing Erdogan personally, he explained that, while Erdowie, Erdowo, Erdogan was protected by freedom of speech laws, what he was about to do definitely wasn’t.

He then recited his now infamous "insult poem" and then explained that it would soon be taken off air because its contents were illegal.

Erdogan immediately filed a complaint with German prosecutors, claiming he had been the victim of an insult crime. But he didn’t stop there.

He also made use of a largely forgotten German law known as Majestäts-beleidigung that gave heads of state special protection against insults. Rather than the standard one year in jail, people who insulted heads of state faced up to five years behind bars.

And, the truly explosive thing about Majestätsbeleidigung: it required the explicit approval of the German government before prosecutors could open an investigation.

That put Angela Merkel in a tight spot. Desperate to keep her migration deal intact, she was also aware of the public fury that would come with acquiescing to Erdogan's demand for special treatment.

“Why should the punishment for insulting a statesman be different to the punishment for insulting other people,” the Süddeutsche Zeitung demanded to know. Calling for Majestätsbeleidigung to be abolished, the newspaper said it was “a remnant from an era of authoritarianism and monarchy.”

Merkel walked the tightrope. She announced that she would pass on Turkey’s complaint to the prosecutors, but in the next sentence she said she would abolish the privilege of Majestätsbeleidigung.

Six months later, the prosecution service in Mainz announced that it would not bring charges against Böhmermann. 

The primary motivation for writing the poem was not to degrade the Turkish president, but rather to show him where the boundary of freedom of speech lies, they argued. The insult was a mere tool in making this point, thus it was protected by freedom of expression. 

An elegant justification.

The civil courts saw things differently, though. Erdogan simultaneously applied for an injunction against the poem being performed again - and he won. Over the following six years, the case went all the way up to the constitutional court and on each occasion the judges sided with the Turkish president, arguing that most of the verses did in fact constitute illegal insults.

One positive thing to come out of the “Böhmermann affair” - in 2018 the Bundestag voted unanimously (a highly unusual event) to abolish Majestätsbeleidigung, calling it “anachronistic.”

What hardly anyone noticed though was that they brought it back in three years later with a modern spin. 

A 2021 law on hate speech created a new category of crime called “insulting political figures.” Handing special privileges to politicians, the law allowed for prison sentences of up to three years in prison for people who insult holders of public offices. 

Online hate attempts to “silence people who express themselves politically” and thus constitutes a “threat to democracy,” the government said at the time.

Since then, German politicians have been filing criminal complaints at a rate that puts Erdogan to shame.

A list published by the government in August showed that Vice-chancellor Robert Habeck has filed over 800 criminal complaints over the past three years; foreign minister Annalena Baerbock has filed over a hundred; and several other ministers have made dozens each. While some of these involve more serious crimes such as physical threats, the vast majority are for the crime of “insulting political figures.”

Interestingly, prosecutors almost never seem to bring charges. Either they have better things to do, or data protection laws mean that it is hard to identify the perpetrators.

But, one rare instance of prosecutors actually following through on an investigation has given Habeck his Erdogan moment.

Earlier this month, police raided the home of a Bavarian pensioner who posted a photo of Habeck on the internet that mocked him up as a model for the hair product company Schwarzkopf. But the name of the company had been replaced with the word Schwachkopf, meaning moron.

Habeck - who is so zealous that he employs a company to sift through the internet to find people who have insulted his honour - filed a complaint. The prosecutors had apparently already decided to take action due to the fact that the insult was directed against a person of high office. They ordered the police to search the pensioner’s home and seize his laptop.

The incident has made Habeck - a man who wants to be Germany's first Green chancellor - look terribly out of touch.

Curiously though, the liberal press who were so keen to condemn Erdogan for demanding special treatment have come to Habeck's rescue.

Deploying a logic that the Turkish strongman would surely approve of, Der Spiegel wrote this week that insults were a gateway drug to harder forms of criminality and needed to be dealt with with the full force of the law.

“Countering the Wild West atmosphere on the internet with criminal complaints is the right thing to do - that is the only way deterrence works,” the magazine argued. “If the state does not take action against insults (against politicians) it will encourage more incitement and hatred.”

In other words: if people start calling politicians idiots, who knows what they could end up doing next? A truly remarkable argument to be put forward by a “liberal” news outlet!

But what about Böhmermann? Surely the slayer of the beast of Ankara was on hand to join the battle against this precious elite?

The satirist has been uncharacteristically quiet in the past few weeks. But then he has got a lot on his plate.

In July, he found himself in court in another dispute over the limits of freedom of expression. This time though, the roles were reversed. A small-time beekeeper from Saxony had been using Böhmermann’s image to advertise his honey - and the comedian wanted to get a court order to make him stop.

What had happened?

Böhmermann had named-and-shamed the beekeeper on his talk show as someone who “bee-washes” by getting city folk to “adopt” honey bees to stop the extinction of wild bee populations.

In response, the beekeeper decided to give the satirist a taste of his own medicine. He brought out a “Bee-washing honey” recommended by “Germany’s leading honey expert” and put Böhmermann’s face on his adverts.

The comedian didn’t see the funny side. Claiming that he was "standing up for satire over profit,” he accused the apiarist of trying to make money off of his fame.

But the court ruled that it was the beekeeper who was defending satire.

“Of course Mr Böhmermann isn’t a leading expert on bees,” the judge said, explaining that such an exaggerated claim was clearly meant as a joke. As a public figure Böhmermann has to expect that his image can be used as a commentary on current events, the judge explained.

The comedian refused to accept the ruling and appealed... and lost again. The old adage about power corrupting springs to mind.

It was sweet revenge for the beekeeper. No doubt Erdogan also ordered some extra honey with his breakfast when he heard the news.

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