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Böhmernmann's 'calculated breach of law'

Interview: Gaby Reucher / db April 8, 2016

German prosecutors are taking a hard look at a controversial poem by satirist Jan Böhmermann targeting Turkey's President. Media lawyer Markus Kompa explains where Germany draws the line between satire and insult.

Jan Böhmermann, Recep Tayyip Erdogan Copright: picture-alliance/dpa/B. Pedersen/R. Ghement
Image: picture-alliance/dpa/B. Pedersen/R. Ghement

Deutsche Welle: In his weekly satirical show "Neo Magazin Royale," comedian Jan Böhmermann recited a satirical poem about Turkish President Recep Tayyip Erdogan. Predicting it could put him in trouble, he called it an example of speech that Germany would not permit. You're specialized in media and copyright law: What is Böhmermann actually being accused of?

Markus Kompa: The investigation is based on section 103 of the German criminal code, according to which insulting a representive of a foreign state is illegal. However, a criminal procedure could only be launched if requested by Turkish authorities; then, the German government would have to authorize the move. That would be passing the buck to Chancellor Merkel.

President Erdogan himself could also lodge a complaint for insult according to section 185 of the criminal code - just like every citizen who suffers an insult. But he himself would have to take action - no one could take care of it for him.

In civil law, one could file for injunctive relief - which would be pointless because the German public broadcaster ZDF has already removed the remarks from the show and from the media center. Damages could be claimed, but that's more of a theoretical aspect.

Jan Böhmermann is being accused of having overstepped the limits of satire, that is, becoming abusive.

Initially, you check whether there were insults, whether anyone is justified in feeling insulted. In this case, that won't be much of a problem.

Why is that?

Markus Kompa Copyright: Dorothee Rietz
It was a calculated breach of law, says Markus KompaImage: Dorothee Rietz

There's no question that Jan Böhmermann's satirical poem is somehow insulting - the question is, are Jan Böhmermann's remarks illegal? "Yes" isn't necessarily the answer to that question because we're looking at satire. Satire is a sub-case of the freedom of opinion, which in turn is protected by section 5 of Germany's Basic Law.

Perhaps this is even a freedom of art case, which is even more strongly protected. Still, satire, freedom of opinion and art don't have precedence over everything else - particularly if foreign personal rights are violated. You have to examine the individual case and determine: Is the satire justified? And, whose claims prevail?

Here in Germany, some complaints against Mr. Böhmermann have already been launched. Can just anybody launch a complaint against Jan Böhmermann because he or she feels Mr. Erdogan has been insulted?

No. As a rule, standard insult crimes assume a complaint by the qualified party, in this case Mr. Erdogan. Insulting a representative of a foreign state in violation of section 103 of the criminal code - which is being discussed at the moment - would imply a petition by Turkey.

The state prosecutor in Mainz has launched a criminal probe as a result of theses complaints. What does that mean?

If the state prosecution learns about facts that could be a crime, they start an inquiry file. Usually, the person concerned shows up and files a complaint. It's unusual for the state prosecution to go public without this request for prosecution.

The public broadcaster ZDF removed the clip from the show and its media center - was that preemptive obedience or simply appropriate?

Both. They could have faced claims for injunctive relief, and the broadcaster also made a political decision. The video contains obscenities that basically no one has to suffer, and that weren't necessarily justified by the current circumstances. I understand the broadcaster's decision.

Jan Böhmermann did say that his poem is a cheap shot and that what he says in the clip is forbidden. Does that count as satire?

You can't shrug off responsibility simply by declaring something as art or satire. But it might work in this particular case.

Erdogan Copright: picture-alliance/AA/V. Furuncu
It's not the first time Turkey's president is lampooned by German satiristsImage: picture-alliance/AA/V. Furuncu

Courts differentiate between the satirical quintessence, and how satire is presented. The quintessence is not the cheap shot remarks: The bottom line is that Mr. Erdogan wants to ban satire, and this is what Jan Böhmermann wants to emphasize through utmost absurdity. The next question, however, is, whether the presentation is okay. If it's really indecent, I wouldn't bet on the German courts going along with it. It's a matter of judgement.

Mr. Böhmermann didn't really have to verse about Mr. Erdogan having sex with goats to get his satirical point across. The courts happen to be more thin-skinned where sexuality is concerned.

If criminal proceedings are launched, Mr. Böhmermann might face a prison sentence.

That's unlikely. He might have to pay a fine. You only send a person to jail if he has a criminal record of any kind - in any case not for something like this. Perhaps Mr. Böhmermann can also hope for some goodwill - after all, he used to be a lay judge at the Cologne district court. I could imagine he'd be sentenced to a fine he'd pay out of petty cash. His satirical poem has stirred a huge public that has a tremendous value in terms of public relations.

In the clip, Mr. Böhmermann stresses freedom of opinion and the arts in Germany. Was the video a courageous move, or was it risky business?

It was a calculated breach of law. At the same time, it's a matter of judgement whether a quarrelsome politician like Erdogan doesn't have to put up with such satire.

A cartoon of [German politician] Franz-Joseph Strauss, also involving sex with animals - pigs in this case-, was banned. Unlimited freedom of opinion isn't necessarily a cultural gain. Limits have to exist, people don't have to put up with everything. Personal rights are definitely justified and Jan Böhmermann happens to be an important opinion leader.

Markus Kompa is a Cologne-based expert for copyright and media law. The lawyer also comments on the Böhmermann case in his blog.