Needless to say, the Turkish government, which has made a habit of stifling domestic dissent, especially in the media, was displeased. Erdogan’s lawyer in Germany filed a cease and desist order, wanting the clip removed. Böhmermann declined and ZDF, the public broadcaster, defended him, saying the poem was permitted under German law, though it did remove the video of Böhmermann reciting it from its online archive. At first Merkel defended the right to freedom of expression, but her position appeared to evolve when she labeled the poem “deliberately offensive.”
Still, offending the Turkish government is one thing; breaking German law is another. It is the latter that Böhmermann could face prosecution for (though it didn’t help his cause that Merkel is negotiating with Erdogan’s government the implementation of a crucial EU agreement to resettle some refugees in Turkey and reduce the number coming into Europe). German law prohibits both personal defamation, which carries a year-long prison sentence, as well as insulting foreign leaders, which can carry a five-year prison sentence. It’s unlikely, however, that even if prosecution proceeds, and Böhmermann is convicted, he’ll serve any prison time. In announcing her decision Friday, Merkel also said her government would move to repeal the law that makes insulting foreign leaders a crime.
At issue is the German law—paragraph 103 of the German criminal code—that makes Böhmermann’s potential prosecution possible. The paragraph has its roots in Germany’s lèse-majesté laws of the 19th century that prohibited perceived insults of the member of the monarchy. The modern law has two parts: the offended party, in this case Erdogan, must complain, and the German government must authorize action, which is what Merkel did with her announcement on Friday. For the most part, this law is little known in Germany, and rarely used. The Guardian provides an excellent account of its recent history:
More recently, paragraph 103 has become known in Germany as the “Shah paragraph”, after the Iranian leader Mohammed Reza Pahlavi tried to get demonstrators prosecuted after a visit in 1967. The German interior minister at the time flew to Tehran and managed to persuade Pahlavi to drop the matter.
The last time it troubled German courts was six years ago, when a Bavarian judge ruled that a banner showing Pope Benedict with a red ribbon and condoms on his fingers had been unfairly removed from a Christopher Street Day parade in Munich.
Since then, however, German officials have moved to repeal the law—Merkel said her government would do so by 2018. Germany isn’t the only European country where offending a foreign head of state is a crime: Similar laws exist in Italy, Poland, and Switzerland. Other European countries still have lèse-majesté laws on the books because they remain monarchies, though of the constitutional variety—but those laws are seldom, if ever, used.