GRAFFITI ERWISCHT

Graffiti and Property Rights in Germany

Germany has a vibrant street art scene. From the cafe-lined streets of Berlin to the leafy schoolyards of Grunewald, hastily drawn "tags" stream across sidewalks and crawl up walls. The city's illegible scrawls, stylized names and bold stencils have turned parts of the German capital into what is arguably Europe's most graffiti-covered metropolis. But what one man calls art, another considers vandalism. Graffiti, in all its forms, clashes with property rights. A recent study found that it costs property owners an average of 500 million euros a year to remove unwanted graffiti daubed on their properties,3 and Germany's courts must continually balance the freedom to express oneself with the right to own private property.

The conflict between these two fundamental rights is clearest in the case of "wild posting," which is the practice of painting or drawing on private property without the owner's consent. While many graffiti artists argue that wild posting is an extension of their artistic freedom, Germany's criminal law clearly defines it as a form of property damage. It is punishable under SS 303 of the Criminal Code StGB, which stipulates that anyone who destroys or defaces another person's property by applying graffiti could face up to two years in prison and a fine of up to 5,000 euros. In addition, if the offence is committed against public property, it is punishable under the Public Transport Act (PTA). The offence of "public transport graffiti" stipulates that the chief executive officer of the PTA may prohibit a person from being on or in a PTA conveyance or facility if they have been convicted of the offence. It also states that the chief executive officer has the power to impose a community-based order upon an offender, for example, if the offender does not pay the cost of removing the graffiti.

While the German court system balances the freedom to paint with the right to own property, some politicians are taking steps to crack down on those wielding Graffiti Ordnungswidrigkeit spray cans. The state of Baden-Wurttemberg recently announced that it would seek to have the upper house of parliament, the Bundesrat, increase penalties for those guilty of committing "public nuisance" by spraying graffiti on private property. In the meantime, some graffiti writers have started to turn to civil law as a way to fight back against the government's attempts to regulate their work.

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