An old German law has allowed for a talk show host to be prosecuted for making fun of Turkey’s president. An infringement on free speech? Some say so, but it’s not a one-off, since neighbouring Switzerland also has a similar statute on the books that’s been put to use.
It all began when satirist Jan Böhmermann told a joke about Turkish President Recep Tayyip Erdogan on his television show. It contained sexual references – involving a goat, in the form of a poem – and Erdogan was offended. So much so that he called on the German government to prosecute the talk show host.
In many countries, things would have ended there, with a complaint from abroad having no traction in sovereign politics or laws protecting free speech taking precedent. But not so in Germany, thanks to Paragraph 103 of the penal code, which prohibits insulting the leader of a foreign country – as long as the German head of state allows for the law’s application.
And perhaps not so in Switzerland, which has a similar law – Article 296 – saying essentially the same thing.
“Whoever insults a foreign head of state, a member of their government or diplomatic representation…shall be punished by imprisonment of up to three years or a fine,” reads the Swiss law. The legislation also specifically forbids insults against delegates attending a diplomatic event and official representatives at NGO meetings held in Switzerland. Also, like in Germany, the head of government – in this case the seven-member cabinet – must approve applying the law. That means it’s always political.
While Germany’s version of the legislation came into force in 1871, Switzerland’s became the law of the land in 1951.
From Gaddafi to the Shah
When has Switzerland applied its law on insulting foreign heads of state? The last instance was not so long ago, in 2010, when a Geneva political group put up posters depicting Moammar Gaddafi with the tagline “He Wants to Destroy Switzerland” – a statement the Libyan leader had once made before the United Nations.
Gaddafi called on the Swiss government to act, arguing that the poster was insulting. The government did so, allowing a judicial investigation to go forward based on the terms of Article 296. But the federal prosecutor’s office announced it was dropping the case in August 2011, a few months before Gaddafi was killed.
And in the 1970s, Iran’s shah was displeased with his depiction in a Swiss satirical magazine and also called on Switzerland’s government to green-light an investigation. It did, again based on Article 296, and the magazine’s publisher was fined – albeit only a few hundred Swiss francs.
Switzerland has also made use of Germany’s law on insulting foreign heads of state. In 2007, a Swiss citizen living in southern Germany published abusive accusations about former Swiss cabinet member Micheline Calmy-Rey on the internet. Based on the Germany’s Paragraph 103, Switzerland called on the German government to open an investigation, and the person who had published the comments was fined.
A tightrope walk
Late last week, German Chancellor Angela Merkel announced she would let the case against Böhmermann go to the courts for judges to decide which laws apply. By doing so, she attempted to appease both Erdogan – whose support she’s counting on in resolving the refugee crisis – and the loud voices of criticism and calls for repeal of Paragraph 103 coming from within her own country. Merkel also made statements supporting the law’s repeal.
In Switzerland, politicians from both sides of the political spectrum called for the repeal of Article 256 in the wake of the Böhmermann affair, including former parliamentarian Oscar Freysinger of the conservative right Swiss People’s Party and former cabinet minister Jean-Christophe Schwaab of the leftwing Social Democrats.
“The fact that you can be prosecuted for insulting a foreign head of state here in Switzerland reminds me of the Middle Ages,” Schwaab told the 20 Minutes newspaper.
Satirists Mike Müller and Viktor Giacobbo, who host a show on Swiss public television, SRF, also made insulting remarks about Erdogan on their programme, most recently on Sunday.
Even though a lawyer confirmed that they could be prosecuted under Article 256 for those remarks – if Erdogan calls for it and if the government approves – Müller said the comedy duo had not been discouraged by the network (part of swissinfo.ch’s parent company) from making jokes about the Turkish leader.
“We have free reign over our show,” he said.
Among members of the public, feelings on Böhmermann’s fate were varied, with some arguing his actions should be defended and others saying he overstepped boundaries.
One Twitter user remarked that “Böhmermann is lucky he lives in Germany and not Switzerland”, citing the Swiss law’s text.
Others supported Böhmermann’s right to free speech and thanked his broadcaster, ZDF, for standing behind him in the affair.
Another commenter tweeted from Switzerland that “I’m not a Merkel supporter, but why do people think that Böhmermann can’t be accused of defamation, just like anyone else could?
And in an editorial on Sunday, the Swiss Neue Zürcher Zeitung newspaper said the affair had “unnecessarily plunged Merkel into a difficult dilemma” and that she had handled the situation in a pragmatic way.
As for Böhmermann, he shouldn’t be punished, said the paper – “but he could take some time to consider the purpose of satire”.
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