How an ancient paragraph threatens Merkel’s position as German chancellor

A recent survey conducted by the German state broadcaster ARD shows that Angela Merkel lost the support of the German people during the last two weeks. The poll rating was the lowest since the beginning of the current election period in September 2013. According to the survey only 45% of the Germans are satisfied with the work of the German chancellor. Two weeks earlier, at the beginning of April, 56% supported her work.

The reason of the sudden loss of support was Merkel’s decision concerning the prosecution of the German comedian Jan Böhmermann. In his late-night comedy programme Neo Magazin Royale, which is broadcasted weekly by the German public-service broadcaster ZDF, Böhmermann read out a satirical poem about the Turkish president Recep Tayyip Erdoğan.

In the poem he accused Erdoğan of “oppressing minorities, kicking Kurds [and] whacking Christians while watching child porn” and called him “gay, perverted, lice-ridden and zoophile”. What sounds like a pointless, deliberate provocation was actually meant to be an instrument to test the boundaries of satire. Two weeks earlier the German TV show extra3 had broadcasted a satirical song about Erdoğan, in which he was criticised for the lack of press freedom in Turkey, for the violence of the police against civilians and for the attacking of Kurdish cities.

Erdoğan demanded the immediate deletion of the song, an official apology and summoned the German ambassador, who then had to justify the poem in a long conversation. The exaggerated reaction of the Turkish president triggered a discussion about press freedom, freedom of arts and the boundaries of satire in Germany. In this context Jan Böhmermann published his poem. During his show he first addressed Erdoğan and told him that satire is legal in Germany. He continued that the German government is not allowed to delete a humorous political song because, in contrast to Turkey, there is freedom of speech and freedom of arts in Germany. He then explained that there are nevertheless things which aren’t seen as art or satire, for example defaming, debasing or insulting people — so called Schmähkritik. Schmähkritik is illegal in Germany and can therefore, in contrast to satire, be deleted. Before reading the poem, he stressed that this is an example of what doesn’t qualify as satire.

Erdoğan reaction was forseeable: he demanded the deletion of the episode from the website of the TV channel and sued Jan Böhmermann. Paragraph 103 of the German criminal code, an old and rarely used paragraph which prohibits the defamation of foreign heads of state, allowed Erdoğan to do so. In order to start the legal proceedings the authorisation of the German government is required. The decision whether to give her consent or not got Merkel into a political predicament. On the one hand she could jeopardise the EU’s refugee swap deal with Turkey by not authorising the lawsuit. On the other hand, giving her consent would create the impression that she is doing Erdoğan’s bidding.

A few days ago Merkel authorised the legal proceedings against Jan Böhmermann. It is seen as unlikely, but theoretically the comedian could now be sentenced to three years in jail.

Merkel’s decision was strongly criticised by the majority of the German people. 65% thought her decision was wrong and expressed their support with Böhmermann. Amongst his supporters were also many celebrities, politicians and journalists. Thomas Oppermann, Chairman of the Parliamentary Group of the Social Democratic Party, said: “I think Merkel’s decision is wrong. The prosecution of satire doesn’t belong into a modern democracy”. The German Journalist’s Association agreed with him. The Chairman of the Left Party, Sahra Wagenknecht, also criticised Merkel’s decision: “Merkel knuckles under to the Turkish despot Recep Tayyip Erdoğan and sacrifices the German freedom of the press”. The German satirical magazine Titanic reacted with a satirical statement and promised to offend every foreign president in their next issue.

Merkel received support from her own political party, the Christian Democratic Union (CDU). Volker Kauder, the parliamentary group leader of the CDU, stated: “Satire is free of restrictions, but not every defamation is satire. The court will decide where the boundaries are. The German Government made the right decision”. Merkel leaves the decision whether Böhmermann’s poem violates a law to the court. She thereby sends a very important sign to Erdoğan: In Germany politics doesn’t encroach on justice. It is commonplace in Turkey that the president orders the arrest of journalists and influences the work of the justice. By prohibiting the legal proceedings against Böhmermann, Merkel would have done the same. With her decision to authorise the lawsuit she lets the justice do its work and decide whether Böhmermann’s poem is satire or Schmähkritik.

The Böhmermann case shows in a drastic way the absurdity of the Paragraph 103 of the German criminal code. While this paragraph protects foreign Heads of State from defamation there is no such protection by law for German politicians. The purpose of the paragraph is to protect international relations. It is self-evident that the German state has to make sure that foreign presidents are protected from violent assaults. But is it seriously necessary to protect them from satire? Furthermore the paragraph treats every Head of State equally, no matter if they rule a democratic state or are head of an unjust regime, which spurns human rights. A paragraph like this clearly doesn’t belong in the law code of a democracy in the 21st century.

Böhmermann is currently under constant police protection and decided to pause his show for a few weeks. Even though the broadcaster ZDF fully supports the comedian, they removed the episode from their website. Merkel’s decision triggered a discussion about the rights and boundaries of satire in Germany and about Erdoğan’s influence on German politics. The outcome of the lawsuit will show if the freedom of arts and the freedom of speech have a higher value in Germany than the sensibility of a single politician.