Weighing in criminal law of communication

In a state governed by the rule of law, the legislator has the central duty to formulate instructions for action by means of prohibitions under criminal law. Compliance with these is intended to ensure the peaceful coexistence of all those who are subject to the law. For this purpose, it is sometimes necessary to enact criminal norms that contain prohibitions that at the same time restrict important fundamental rights - as rights of the individual that are guaranteed by the constitution. The offences of insult under Section 115 or defamation under Section 111 of the Criminal Code, for example, prohibit defaming other people in a certain way. At the same time, this represents a limitation of the right to communicate (guaranteed in particular by Article 10 of the European Convention on Human Rights): According to this, one may not communicate arbitrarily if others could be injured in their honour as a result. Where the boundary between permitted and "prohibited" communication lies must be expressed as clearly and unambiguously as possible in the respective criminal provision, because only in this way the individual can reliably align his or her behaviour along this boundary. The central question now is how far the legislator may go when it restricts fundamental rights in favour of other interests in order to protect them. This question can only be answered by weighing the interests involved in a legally correct way. In the example shown, the interest in unhindered communication must be compared with the interest in the protection of honour, and possibly also of privacy, and a legislative decision must be made as to which interest outweighs the other and to what extent the exercise of which interest must be ensured by the legislator. However, according to the current state of research, this method of weighing has certain weaknesses. In particular, it is not possible to make a balancing decision entirely without subjective evaluations (How high is one interest? How high is the other?), so that the "correctness" of such a decision is often difficult to verify. The present project addresses precisely this problem using the example of communications criminal law (as criminal law that interferes with the fundamental right of freedom of communication). In the first part, the relationship between criminal norms and constitutional guarantees is examined more in detail. In the second part, a structured concept of balancing is developed with the aim of increasing the comprehensibility and transparency of such balancing of interests. The third part of the paper is devoted to an analysis of how the legislature currently makes its balancing decisions, whether general principles for future balancing processes can be derived from them, and whether and to what extent the current law should be changed.