You can find detailed information in the following book:
Nivedita Prasad/Bundesverband Frauenberatungsstellen und Frauennotrufe — Frauen gegen Gewalt 2021
Criminal law options: Offences of defamation under sections 185 et seq. of the Criminal Code, violation of the most personal domain through image recordings under section 201a of the Criminal Code, data spying under section 202a of the Criminal Code, data interception under section 202b of the Criminal Code, preparation of data spying and data interception under section 202c of the Criminal Code, data theft under section 202d of the Criminal Code, stalking under section 238 of the Criminal Code, computer fraud under section 263a of the Criminal Code, data tampering under section 303a of the Criminal Code, criminal provisions of the Federal Data Protection Act in relation to stalkerware under section 42 of the Federal Data Protection Act, norms of copyright and intellectual property law.
If pictures of the person affected are publicly disseminated on the internet, the norms of copyright law (unauthorised exploitation of copyrighted works according to § 106 UrhG and unauthorised interference with related rights according to § 108 UrhG) and art copyright law (unauthorised dissemination or public display of images according to §§ 33 in conjunction with 22, 23 KUG) may also apply. Here, too, specific criminal offences have been created, which are prosecuted either only on request or on the assumption of public interest. If actions occur that can be grouped under these criminal offences, they can be reported and must then be investigated by the investigating authorities. If an accused person can be found, the offence is a criminal offence and there are no procedural obstacles such as the statute of limitations, the person will be charged if there is sufficient reason to suspect the offence, or a penalty order will be issued. In many cases, the biggest problem in enforcing claims is that the relevant publications are made anonymously, so that the perpetrators must first be named. This affects the prosecution of hate speech as well as digital violence in the immediate environment, because even if there are strong indications that the information required for the crime is only available to a specific perpetrator from the immediate environment, this alone is often not sufficient to prove the specific perpetrator. In this respect, there are repeated calls for the introduction of a duty to use a clear name on the Internet. At the same time, freedom of opinion and censorship is a valuable asset and essential for democratic participation, especially on the internet, where every topic is discussed, people can inform themselves about every topic and draw attention to violating problems. In this context, the preservation of anonymity is also an important factor, especially when one thinks of particularly discriminated and vulnerable groups. With regard to the enforcement of criminal prosecution, there is therefore a tension between the need to maintain anonymity and the possibility of prosecuting digital violence offenders. In June 2020, the Act to Combat Right-Wing Extremism and Hate Crime was passed by the Bundestag, which states that in the future, content containing neo-Nazi propaganda, threats of murder and rape or child pornographic material must be reported on social networks and, according to § 3a NetzDG, not only removed, but also access to them must be blocked. The social networks must inform the BKA not only of the suspicious content, but in addition provide the IP address of the suspected user. In order to name the offenders, the affected persons themselves can apply for information about the data of users in accordance with Section 14 (3) of the German Telemedia Act (TMG), if this is necessary to enforce civil law claims. The pre-condition is the violation of absolutely protected rights by these users through criminal actions according to the offences listed in Section 1 (3) of the NetzDG. For example, the following are listed here: Offences of insult (§§ 185 ff StGB), incitement of people ( § 130 StGB) or also the violation of the most personal domain of life through image recordings (§ 201a StGB). For those affected, the easiest way to make a name known is often via the investigating authorities after the offence has been reported under criminal law. However, this becomes problematic if the investigating authorities are not adequately prepared, neither technically nor staff-wise, to deal with the fight against and prosecution of digital violence. It is also problematic that servers are located in other countries and requests for legal assistance to the providers’ locations are not processed because of the legal provisions there.
In addition to criminal proceedings, it is possible to take civil action against the offender for injunctive relief and expungement. However, a prohibition of approach and contact according to the Protection against Violence Act (GewSchG) is also feasible. A violation of a protective order against violence then leads to the possibility of criminal prosecution or the enforcement of so-called administrative fines. Section 1 (1) of the GewSchG covers intentional bodily harm, harm to health or harm to the freedom of another person. Digital violence is not explicitly listed. It is true that “health” in the sense of section 1 GewSchG also includes mental health, so that medically assessable mental health damage can at least lead to claims for injunctive relief in the case of significant impairment. However, intent, i.e. knowledge and willingness to violate the protected legal interest, will almost always be problematic. Although conditional intent, i.e. knowledge of a possible outcome that is not necessarily desired, but was accepted, is sufficient, it must be proven that the offender at least accepted the concrete psychological consequence and did not only cause it negligently.
If the criminal complaint is not filed, a distinction must be made as to whether the offence is an absolute or relative complaint offence. Absolute application offences can only be prosecuted if an application has been filed. Otherwise, there is an obstacle to prosecution, which necessarily leads to the discontinuation of the proceedings. Absolute application offences are e.g. §§ 185ff StGB (German Criminal Code) and 42 BDSG (German Federal Data Protection Act), whereby in addition to the person concerned, the supervisor, the federal commissioner and the supervisory authority are also entitled to file an application. In the case of relative application offences, it is possible for the public prosecutor’s office to assume that there is a special public interest — irrespective of whether the person concerned has filed a criminal application. This can even be done during the main hearing.
Civil law options:
Declaration of injunction with penalty clause: In addition, infringers are requested to submit a so-called declaration of injunction with penalty clause. In this declaration, the violators agree to suspend the statement or action and to pay a contractual penalty in the event of a violation. This contractual penalty serves as a deterrent and thus ensures the assurance of the agreement to stop. A contractual penalty is incurred in each case of breach of the commitment to discontinue, e.g. in the event of a renewed dissemination of the specific statement or repetition of the action. In addition, the injunction also covers so-called core violations, i.e. slightly modified statements. In the event of violations of the injunction, those affected are therefore in a position to take immediate action against the violators themselves and to demand payment of the contractual penalty. Violators are regularly given a time limit to refrain from and remove the action as well as to submit a declaration of injunction with a penalty clause; especially in the case of actions or statements on the internet, this time limit can be very short. One week is often considered sufficient. However, depending on the type of medium and the seriousness of the infringement, much shorter deadlines, such as 24 to 48 hours, can also be justified. Furthermore, the person being warned can be asked to pay the costs incurred by hiring a lawyer. In addition, claims for damages or monetary compensation can also be asserted in the warning letter. In principle, it is possible for those affected to issue a warning letter themselves, but this is not recommended due to the legal complexity. A warning is the cornerstone for further civil proceedings — mistakes can have an effect on later legal proceedings. This is particularly important with regard to the preservation of evidence, which can usually only be done comprehensively in the run-up to a warning. In other words, before violators become aware of the legal action taken by those affected. Lawyers usually provide detailed information about costs and potential support services during the first contact.
Interim measures: If violators refuse to submit a declaration of injunction with a penalty clause, affected persons can apply to the competent civil court for an interim measure. It should be noted that the application for such an order can only be filed within a narrow time limit. This time limit varies from court to court, but as a rule one month after knowledge of the violation is to be assumed. Furthermore, interim measures proceedings are subject to the principle that they are not intended to create a final settlement, i.e. they may not prejudge any proceedings on the merits. Therefore, only claims for injunctive relief, but no claims for removal, compensation for damages or monetary compensation can be filed in these proceedings.
Proceedings on the merits: Since the claims for removal, compensation for damages and monetary compensation can only be asserted in main proceedings, it can make sense to file a lawsuit against the violation of rights without prior injunction proceedings . The disadvantage of the main proceedings is obviously the length of the proceedings. This procedure is not suitable for the rapid termination of a violation of rights, as the proceedings at the first instance usually take at least one year.
Advantages of the civil law procedure are that affected persons have control over the proceedings both out of court and in court. In contrast to the criminal law procedure, affected persons themselves decide whether and how to pursue the proceedings. The proceedings cannot be discontinued by the state or pursued against the will of those affected, as is the case in criminal law. Accordingly, affected persons also have the choice of conducting the proceedings (only) out of court or also or exclusively in court.
In addition, actions can be prosecuted in civil proceedings that do not constitute criminally relevant behaviour, e.g. do not exceed the threshold of insult or defamation in the criminal law sense. In this context, the claims for injunctive relief and removal necessary to end an infringement are not dependent on fault. This means that it is irrelevant for the enforcement of civil claims whether certain statements were made with the intention of causing harm to a person or whether the person making the statement knew what effects these statements would have. Thus, claims for injunctive relief and removal are usually easier to enforce than criminal charges, which must also fulfil the subjective elements, i.e. the intent, of an offence.
An obvious disadvantage of civil proceedings is the cost involved. The affected persons must bear the costs of the proceedings themselves, at least initially. There is also the risk of losing in court. In this case, the costs of the opposing party would also have to be reimbursed. Although damages or monetary compensation can be claimed in civil court proceedings, the amount that can be claimed should not be overestimated.
It should also be noted that civil proceedings can usually only be pursued if the persons involved are known by name. The possibility of filing a complaint against an unknown person, as it is known in criminal law, does not exist. There is also no investigation of the person or the facts by the state, i.e. the person concerned must, for example, find out the real names of internet users and the address themselves. Moreover, it is not possible for those affected to remain anonymous, either out of court or in court.
Civil action against digital violence is possible primarily under the provisions of tort law. Tort law enables persons to defend themselves against so-called tortious acts that violate protected interests within the meaning of §§ 823ff. BGB.
First of all, under section 823 (2) of the German Civil Code, it is possible to bring civil claims against actions and statements that also constitute criminal offences: sections 185 et seq. (offences of insult and defamation), section 201a (violation of the most personal sphere of life through image recordings), section 238 (stalking), sections 240 et seq. of the German Criminal Code (coercion and threats) as well as violations of the right to one’s own image (sections 22 p. 1, 23 II KUG).
On the other hand, according to section 823, paragraph 1 of the German Civil Code, civil action can also be taken against actions and statements that do not constitute a criminal offence but violate one of the protected interests of the norm. The most important object of protection in the field of digital violence is the general right of personality, which for this reason will be briefly discussed below.
As an expression of the constitutional principles of the inviolability of human dignity and the right to free development of the personality (Articles 1 and 2 of the Basic Law), the general right of personality places certain aspects of the development of a person’s personality and their self-determination under special protection under fundamental rights. The extent of this protection must be determined on the basis of the specific case. In case law, the following characteristics of the general right of personality are currently recognised as groups of cases that form the focus for action against digital violence: the right to one’s own image, the right to informational self-determination, the right to privacy, protection against untruthfulness, protection of honour and reputation and protection against threats to life and freedom. However, these groups of cases are not exhaustive, but are in constant flux in case law, especially in view of the technical and media developments of the last two decades. In practice, the case groups formed by case law often overlap. In addition, all case groups have recently received additional protection through the data protection regulations of civil law.
Wegweiser e.V., with its headquarters in Böhlen, is committed to women’s and family policy and offers psychosocial help and counselling for families, parents and children. This is where you can turn if you have experienced violence: email@example.com / 034206 — 53756. The contact details of the counselling centre against domestic violence and stalking are: Lange Str. 50, 04668 Grimma, Tel: 03437–708478, in case of emergency: 0177–3039219, FAX; 03437–708477, Email: firstname.lastname@example.org .
The nationwide helpline “Gewalt gegen Frauen“ (Violence against Women) is a nationwide counselling service for women who have experienced or are still experiencing violence. Qualified counsellors confidentially assist those seeking help and, if necessary, refer them to local support services, such as a women’s counselling centre or a women’s shelter in the vicinity. Relatives, friends and professionals are also advised anonymously and free of charge: https://www.hilfetelefon.de/das-hilfetelefon.html