Digitale Violence

SHOWNOTES

i
You can find detail­ed infor­ma­ti­on in the fol­lowing book:
Nive­di­ta Prasad/Bundesverband Frau­en­be­ra­tungs­stel­len und Frau­en­not­ru­fe — Frau­en gegen Gewalt 2021

ii
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.

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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: verein@wegweiser-boehlen.de / 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: interventionsstelle@weweiser-boehlen.de .

v
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