For Cross-Border Defamation Claims, Germany Has Edge Over US

Germany and the US share one of the stronger transatlantic relationships where goods, currency, and communications are freely exchanged. But what happens when those cross-border communications take a turn for the worse and counterparties start defaming one another? In an increasingly global world, such issues can arise with a few clicks of a mouse from 4,000 miles away.

What recourse is available when a defamatory statement made in Germany is directed at someone residing in the US? A comparison of the two countries’ legal processes shows that German courts may be the better forum for a US resident suing an individual in Germany for defamation.

In the US, defamation is largely a matter of state law, though the basic elements are similar across jurisdictions. Generally, a plaintiff must show that the defendant published a false and defamatory statement of fact about the plaintiff to a third party and that the statement caused reputational harm. When the defamatory statement concerns a public figure or official, the plaintiff faces a higher bar and must also prove that the defendant acted with “actual malice.”

To sue for defamatory statements made in Germany and directed at a resident of the US, the biggest hurdle is establishing whether a US court has jurisdiction over the German-based individual. Although most states have “long-arm statutes” that permit courts to reach beyond their borders in certain circumstances, those statutes are constrained by constitutional notions of fairness and due process.

While a defamatory statement made in Germany can cause harm in the state where the US-based individual resides, courts also look to whether there was a manifest intent to specifically target the individual in their community.

Timing and costs are other practical considerations. Defamation cases in US courts can take years to resolve, and that timeline may be extended in cross-border disputes where choice-of-law and logistical challenges are likely to arise. As is true with most US litigation, pursuing defamatory relief can be expensive. Given that plaintiffs typically bear their own costs in pursuing viable defamation claims, plaintiffs might choose not to initiate legal proceedings when potential resultant damages are low.

Even if plaintiffs can’t prove actual, quantifiable harm, they may still succeed on their defamation claims and receive nominal damages. In some jurisdictions, damages are presumed without requiring plaintiffs to show specific proof of harm when a statement is clearly defamatory on its face.

From a German perspective, US citizens harmed by defamatory statements published in Germany (or online and directed at German audiences) have access to a robust and efficient legal framework rooted in constitutional law. Under German constitutional law, personal honor and the general right of personality enjoy fundamental protection.

The guiding principle is straightforward: Untrue statements of fact are unlawful without justification, while expressions of opinion are permissible only up to the limit of abusive criticism.

As in the US, a threshold question is whether German courts have jurisdiction. For internet publications, the German Federal Court of Justice has clarified that mere accessibility of content in Germany doesn’t suffice. A meaningful domestic nexus is required—but critically, in personality rights cases, this doesn’t require that the content was specifically directed at German users.

It is sufficient that the content objectively has a clear domestic connection, meaning that a conflict between the claimant’s personality rights and the defendant’s freedom of reporting could actually occur in Germany. This is established where awareness of the content in Germany lies much closer than mere accessibility would suggest, and where the alleged reputational harm would materialize upon that awareness. For US citizens with professional or personal ties to Germany, or where the defamatory content is more relevant to a German audience, this threshold is frequently met.

Separately, and independently of where the content was received or accessed, German jurisdiction equally exists where the defendant made and disseminated the statements at issue from within Germany. In such cases, Germany constitutes the Handlungsort—the place of the tortious act—which under establishes domestic jurisdiction as a matter of course, without any further nexus analysis being required.

Once jurisdiction is established, German procedural law offers decisive advantages over US litigation. Preliminary injunction proceedings typically yield a court order within two weeks of filing—without the defendant being heard in advance, and without the plaintiff needing to appear in court or submit to discovery. This speed is valuable given that reputational damage compounds rapidly. A granted injunction can further be deployed to prevent republication across other media outlets.

Additional remedies include the right of reply, enforceable within approximately 10 days, and damages for nonmaterial harm for serious violations. Costs are borne by the losing party, making well-founded claims financially viable for foreign claimants.

Cross-border defamation between the US and Germany presents a complex, but navigable, legal landscape. While US litigation faces jurisdictional hurdles and lengthy timelines, German law offers a compelling alternative: a clear constitutional framework, rapid preliminary injunction proceedings enforceable within days, and no discovery burden on the plaintiff.

For US citizens defamed by statements originating in or disseminated through Germany, early engagement with German counsel is essential—the limitation period for injunction proceedings is as short as four to six weeks. In an era where a single online statement crosses borders instantly, effective legal strategy must be equally transatlantic in its approach.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Steven L. Penaro is a partner at Alston & Bird and focuses his practice on complex commercial litigation with an emphasis on cross-border disputes.

Diana Grün is a German-qualified defamation attorney at Schalast with international expertise, advising on defamation, breach of confidence, privacy, harassment, and data protection.

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