The cross-jurisdictional and international nature of online expression makes it inherently challenging to control – what’s considered legally protected speech in one geographical location often differs drastically from what’s protected in another.
Take this recent example: A 15-old American student, Donny Dunlap of Mesa Verde High in California, expressed his frustration with the amount of homework he was given in his biology class by calling his teacher “a fat ass who should stop eating fast food and is a douche bag” on Facebook. He was initially being suspended for one day for cyberbullying, and his mother contacted the American Civil Liberties Union for assistance.
Based on application of American law, the boy’s transgression was expunged from his school record. As ACLU attorney Linda Lye wrote in a letter to the school principal, the U.S. Constitution “bars schools from disciplining students for speech, unless the speech creates a material and substantial disruption of the school environment.”
Were a similar incident to occur in Germany, meanwhile, the outcome might have been different. German law takes a much stricter view of speech than does its American counterpart, making certain types of speech, such as referring favorable to the Nationalsozialistische Deutsche Arbeiterpartei (Nazi Party), subject to criminal prosecution. Furthermore, Chapter 14 of the German Criminal Code (Strafgesetzbuch, StBG) has an entire chapter that covers “Insults.
Chapter 14 Section 186 of the Strafgesetzbuch, for example, which refers to malicious gossip,states that “whoever asserts or disseminates a fact in relation to another, which is capable of maligning him or disparaging him in the public opinion, shall, if this fact is not demonstrably true, be punished with imprisonment for not more than one year or a fine and, if the act was committed publicly or through the dissemination of writings (Section 11 subsection (3)), with imprisonment for not more than two years or a fine.”