German 'lawfare': When lawsuits become a political weapon

In the turbulent political landscape of Germany, a verbal slip has now transformed into a legal battle. During a political TV talk show following the Berlin election, held on September 20, the Left Party's Berlin mayoral candidate, Elif Eralp, was mistakenly labeled as an antisemite. Host Maybrit Illner quickly clarified that Eralp is not antisemitic, prompting Federal Interior Minister Alexander Dobrindt, from the conservative Christian Social Union (CSU), to respond with "Na doch" (or well, yes she is).

Distrustful of Dobrindt's response, the Left Party’s lawyers decided to sue him, claiming that his words amounted to defamation. They argued that Dobrindt's statement falsely suggested that Eralp herself considered herself antisemitic, which would tarnish her integrity and hinder her efforts to become the leader of Berlin. The lawsuit is not the first of its kind; the Left Party has often used the legal system in response to accusations of antisemitism, particularly after the incident at an election campaign event in Berlin where a rapper chanted "Death to the IDF" during a campaign.

Additionally, Economy Minister Katherina Reiche faced accusations of embracing antisemitism after delivering a speech in which she stated that the party was now "openly embracing antisemitism." Reiche posted the speech on the Economy Ministry's Instagram account, which sparked the legal action.

The use of lawfare – lawsuits as a political weapon – has become increasingly popular in German politics, particularly after recent years. The Criminal Code of Germany, sections 185, 186, and 187, cover offenses such as insult, defamation, and intentional defamation, which can result in a fine or up to a year in prison. Politicians like the Alternative for Germany (AfD)'s Far-right party, the Green Party in Berlin, and Robert Habeck of the Green Party have also faced defamation charges.

However, prosecutors typically dismiss such cases quickly due to insufficient grounds for suspicion. Media lawyer Christian Solmecke notes that charges of defamation, especially when used by politicians, have little chance of success.

Furthermore, Felix Zimmermann, editor-in-chief of Legal Tribune Online, states that German law distinguishes between opinions and false statements, with the latter being more likely to result in legal action. Zimmermann adds that in the current political climate, where definitions of antisemitism vary, accusations of antisemitism are often seen as opinions rather than false statements.

Despite this, political culture has become harsher, and the threshold for criminalizing political opponents through legal means has dropped significantly. This trend raises concerns about the misuse of law enforcement agencies as political tools. However, lawfare can still be an effective PR strategy, as it garners significant attention despite the low likelihood of a successful legal outcome.