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Comparing Israel to Nazi Germany can be protected speech, German court rules
Appeal judges acquitted a woman over Instagram posts featuring swastikas, overturning her €2,400 fine
A German court has ruled that comparing Israel to Nazi Germany can be protected by freedom of expression after acquitting a woman over posts shared on Instagram.
The Higher Regional Court in Zweibrücken overturned her earlier conviction for using symbols of unconstitutional organisations, finding that Nazi imagery was used to attack Israel rather than endorse Nazi ideology.
The woman had shared a table comparing actions attributed to Israel with those of the Nazis, alongside an image showing the Israeli flag and a Nazi Party flag featuring a partly visible swastika.
She also shared an image of a Star of David containing a swastika painted on a wall, accompanied by the hashtags #FREEPALESTINE and #GAZAUNDERATTACK.
Ludwigshafen District Court had previously convicted her on two counts of using symbols of unconstitutional organisations and imposed a €2,400 fine,
But the appeals court overturned the conviction, according to German legal publication Beck-aktuell.
Judges found that the symbols had been used to “express sharp criticism of the methods of the State of Israel while being accompanied by a clear distancing from, or condemnation of, Nazi wrongdoing.”
Germany has strict restrictions on the display of Nazi symbols, including the swastika. But the court found that the law must also be considered alongside the constitutional right to freedom of expression.
It concluded that the first post could be understood as condemning the methods and ideology associated with Nazism rather than promoting them.
The judges also found that the posts did not amount to incitement to hatred.
German law does not automatically criminalise comparisons with the Holocaust, the court said. The threshold can be crossed where comments deny, trivialise or minimise Nazi crimes in a way capable of disturbing the public peace.
Harsh criticism of another country, however, was not enough on its own to meet that threshold.
The court found there was no need for further factual findings and acquitted the woman of all charges.
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