Volksverhetzung (German:[ˈfɔlksfɐˌhɛtsʊŋ]ⓘ), in English "incitement to hatred" (used also in the official English translation of theGerman Criminal Code),[1][2] "incitement of popular hatred", "incitement of the masses", or "instigation of the people", is a concept in German criminal law that refers toincitement to hatred against segments of the population and refers to calls for violent or arbitrary measures against them, including assaults against thehuman dignity of others by insulting, maliciously maligning, or defaming segments of the population.[1][2][3]
It is often applied to, though not limited to, trials relating toHolocaust denial in Germany. The criminal code (Strafgesetzbuch) Chapter 7 (Offences against public order), Paragraph 130 (Incitement to hatred) of theFederal Republic of Germany defines when a person is guilty ofVolksverhetzung.[1][2][3]
Whosoever, in a manner capable of disturbing the public peace:
incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them; or
assaults the human dignity of others by insulting, maliciously maligning an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population,
shall be liable to imprisonment from three months to five years.[1][2]
On 21 January 2015, changes to the former text of § 130 Sections 2 and 5, with Section 6 becoming Section 7, took effect following European parliament amendments.[4] At present these changes are not reflected in theEnglish translation of § 130 as updated in theoriginal current German § 130.
Althoughfreedom of speech is mentioned by Article 5 of theBasic Law (Germany's constitution), said article basically protects any non-outlawed speech. Restrictions exist, e.g. against personal insults,use of symbols of unconstitutional organizations, orVolksverhetzung. For anyhate speech to be punishable asVolksverhetzung, the law requires that said speech be "qualified for disturbing public peace" either by inciting "hatred against parts of the populace" or calling for "acts of violence ordespotism against them", or by attacking "the human dignity of others by reviling, maliciously making contemptible or slandering parts of the populace". "Germany places strict limits on speech and expression when it comes to right-wing extremism" or anything reminiscent of Nazism.[5] Hate speech on the basis of sexual orientation and gender identity also is banned in Germany.[6]
Offences contrary to § 130 of the Criminal Code committed abroad, whether by German nationals or foreigners, can be pursued as a domestic crime when they so act as if they had been committed within the country, affecting the public peace in Germany and violating the human dignity of German citizens. It is sufficient, for example, that criminal content on the Internet, for example in the form of a HTML page, can be accessed from Germany.[7] Hence, for example, the jurisdiction of German courts can be applied for offences ofsedition (Volksverhetzungsdelikte) committed abroad. Such an example was the conviction of the Holocaust denierErnst Zündel by the District Court ofMannheim in February 2007, who was convicted of inciting propaganda he had published from the US and Canada on the Internet.
In Ireland, the corresponding law is the Prohibition of Incitement to Hatred Act.[10]
A similar law exists in Sweden ashets mot folkgrupp ("agitation against a population group"), second section 16th chapter 8§ of the criminal code.[11]
The Criminal Code of Finland, in the sections 3 ("Crime against humanity") and 4 ("Aggravated crime against humanity") of chapter 11 ("War crimes and crimes against humanity"), includes a similar law, which calls the crimekiihottaminen kansanryhmää vastaan in the Finnish version andhets mot folkgrupp in the Swedish version, both meaning "incitement against ethnic groups".[12]
The Russian Criminal Code, in its 282nd article (titled "Incitement of Hatred or Enmity, as Well as Abasement of Human Dignity"), refers to actions aimed at inciting ethnic or racial hatred.[13] Moreover, §2 of Article 29 of the Russian Constitution disallows and bans "propaganda or agitation" that instigates "hatred and strife" of a "social, racial, national or religious" nature, or promotes the supremacy of a social class, race, nationality, religion, orlanguage variety.[14]
In Uruguay, the Penal Code, in article 149-BIS (i.e., a complement to article 149, which is on lawbreaking incitement), titled "Incitement to hatred, contempt or violence towards certain persons", condemns incitement or acts of violence and/or contempt against one or more persons on the grounds of race, skin color, religion, national or ethnic origin, sexual orientation orgender identity.[15]
In the U.S., there is no direct legal equivalent due to the strong protections of free speech under the First Amendment of the U.S. Constitution. However, some U.S. laws address aspects of speech that incite violence or pose a direct threat, including:
This law criminalizes interstate travel or the use of interstate commerce (e.g., mail, telephone, internet) with intent to incite, organize, promote, or encourage a riot.
18 U.S.C. § 373 (Solicitation to Commit a Crime of Violence)[17]
This statute makes it illegal to intentionally solicit, command, induce, or otherwise persuade another person to commit a violent federal crime.
The U.S. Supreme Court ruled that speech advocating illegal activity is protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
This law allows individuals to sue for damages if they are targeted by conspiracies to deprive them of equal protection under the law, particularly in cases of racial or ethnic violence.
18 U.S.C. § 249 (The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act)[20]
While these laws enhance penalties for crimes motivated by bias (e.g., race, religion, sexual orientation), they do not criminalize speech alone unless it is tied to a criminal act.[21][22]
Günther, Klaus (2000). "The Denial of the Holocaust: Employing Criminal Law to Combat Anti-Semitism in Germany".Tel Aviv University Studies in Law.15 (1):51–66.
