You can be prosecuted for some messages, videos or photos that you have received via WhatsApp. TECHBOOK asked a lawyer.
We use hardly any other app on our smartphone as often as WhatsApp. For many people it is the number one means of communication. But what very few people know: the messenger service is private, but shared content in text, video or photo form can still be criminally relevant and lead to criminal proceedings. With just one WhatsApp message, you can make yourself liable to prosecution.
TECHBOOK has with Attorney Christian Solmecke, an expert in media and IT law, and asked what messages are prohibited on WhatsApp and how you can avoid committing a crime. Because even if it is just a message that users have received as a participant in a WhatsApp group, they can be prosecuted for it.
Again and again, German courts have to deal with criminal offenses in which users have made certain prohibited content accessible to other users or have disseminated such content. When asked by TECHBOOK, lawyer Christian Solmecke explains that the law enforcement authorities are increasingly dealing with such crimes. “The focus is primarily on social networks, since it is easier to find criminally relevant messages and comments here, but the public prosecutor’s offices also become active if it becomes known that agitation is being carried out in closed chat groups,” Solmecke told the police TECHBOOK.
What is forbidden?
In messenger apps like WhatsApp, the content sent is not checked, as is the case with Facebook, for example. Content that is prohibited under German law can therefore be shared there. It is not important how prohibited content is announced. “Regardless of whether it is text, photos or videos – if the content contradicts the criminal code, the law enforcement authorities have to become active,” explains attorney Solmecke.
The list of criminal content is correspondingly long, Solmecke continues: “This includes, among other things, the sending of child pornographic material, calls for criminal offenses, hate speech, denial of the Holocaust and the use of anti-constitutional symbols. According to Section 86a of the Criminal Code, only signs of organizations that have been banned by the Federal Constitutional Court are prohibited. According to the law, forbidden objects are their flags, badges, pieces of uniform, slogans and forms of greeting, as well as those that are confusingly similar to them.” However, unequivocal symbols of National Socialism are absolutely forbidden. Examples are the swastika, sign of the NSDAP, the SS, Waffen-SS or the SA. Slogans such as “Sieg Heil” or “Heil Hitler” or “Hitler salute” are also prohibited.
Forwarded messages can be dangerous
Anyone who forwards prohibited messages is also subject to penalties by law. Especially the groups of the messenger service offer a high potential for distribution. If you share prohibited material in such a WhatsApp group, all members of the group are also liable to prosecution. That sounds absurd at first. Since content such as videos or photos is stored by the app on the user’s smartphone, all members of the group then have this criminally relevant content at their disposal. However, possession of such photos or videos is prohibited. Therefore, users must also delete messages from other users in order not to be prosecuted themselves.
“Especially when users are sent child or youth pornographic material in WhatsApp groups, the threshold of criminal liability is quickly crossed, because according to §§184b, 184c StGB the possession of such media is already punishable. In each individual case, however, it is particularly important when knowledge of the content was obtained or whether the receipt of such images was ‘accepted with approval’ – for example through membership in relevant WhatsApp groups,” says legal expert Christian Solmecke. However, it is also decisive whether the possession was negligent or intentional. However, only the intentional possession is punishable. But: “The borderline to intent, in particular to ‘accepting it’, is fluid here, so users should therefore delete the material immediately upon receipt.”
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These penalties are imminent
The crime is decisive for the sentence. “While an insult is usually only punished with a fine, there is a risk of up to ten years imprisonment for the distribution of child pornographic material by gangs,” says Christian Solmecke. It must be differentiated in which WhatsApp group the content has been disseminated. Not every sending is punishable. “Users who send the prohibited images in a private chat on WhatsApp to just one other person or to a few people they know in closed WhatsApp groups remain unpunished, provided they do not assume that these people are spreading the symbol further in an uncontrolled manner. However, if you send the picture to a WhatsApp group with many members, it can quickly become a punishable offense, depending on the size of the group,” explains the lawyer.
While children under the age of 14 are under the age of criminal responsibility, they are not prosecuted under criminal law. However, there is one exception: “In civil law, on the other hand, minors can be liable from the age of seven. This can become relevant, for example, if a victim demands compensation for pain and suffering after a violation of the general right of personality through an insult,” says Solmecke. The situation is different for young people between the ages of 14 and 17, and in some cases even up to 20 years of age. You may be prosecuted. “Young people are sentenced according to the norms of the Criminal Code. But unlike adults, it is not the punishment that is in the foreground for young people, but the idea of education,” says Solmecke.
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WhatsApp users should follow these tips
First and foremost, WhatsApp users should always check exactly what content they can access via the app and what content they themselves forward to other users. In addition, users should behave there in the same way as they would in the analogue world. Expert Solmecke warns that the Internet is not a legal vacuum. “So there shouldn’t be any insults there any more than face to face. Even supposedly joking memes with swastikas should be deleted immediately. Under no circumstances should you distribute the pictures yourself,” advises Christian Solmecke.