German Court Ruling Threatens Internet Freedom

In an ominous blow against on-line freedom of speech, Germany’s highest court declared on December 12, 2000, that German law banning “Holocaust denial” material applies even to foreigners who post such content on Internet web sites outside of the country, as long as the material is accessible in Germany.

The federal supreme court in Karlsruhe, the Bundesgerichtshof, was ruling on issues arising from a lower court’s verdict against Dr. Fredrick Töben, director of the Adelaide Institute in Australia, for material posted on its web site. Töben was jailed for seven months in Germany (April-November 1999) for having disputed Holocaust extermination allegations. (See “German Court Sentences Australian Holocaust Skeptic,” July-August 1999 Journal, pp. 2-5.) According to news reports, German authorities are considering asking Australia to extradite Töben to Germany for further prosecution.

With this ruling, Germany is claiming the right to punish citizens of the United States and every other country for posting material on the Internet that is legal in most of the world. Echoing a darker past, the ruling attempts to censor the so far almost entirely unrestricted Internet world wide web. If other countries, in keeping with the German court’s decision, tried to enforce their domestic laws outside their own borders, the result would be international chaos. Internet freedom for dissident views on World War II history is thus an important litmus test for on-line freedom of speech generally.

The German court’s ruling could even affect German citizens who post “right-wing” material on the Internet while visiting the United States, warned the Berliner Zeitung (Dec. 15).

If the German court’s decision were to set an international precedent, the consequences could be bizarre and far-reaching. Americans visiting China could presumably be arrested there if they had ever posted material, even while in the United States, that supports independence for Tibet or calls for an end to Communist rule in China. US citizens who had ever posted material on the Internet supporting social tolerance or equality for homosexuals could be arrested while visiting countries where such views are against the law. Similarly, Americans who had ever posted material supporting discrimination against homosexuals could be arrested while visiting countries where such discrimination is illegal. Americans who have ever posted pornographic material on the Internet could be arrested while visiting countries where pornography is illegal.

“This German court wants to judge over the whole world in effect,” commented Andy Mueller-Maguhn, a prominent figure in Germany’s Internet scene. The ruling, he added, “seems to be the worst Internet-dependent court decision so far. If other countries would take this as an orientation and start to apply their laws on the citizens of other countries acting in their countries, the worldwide free flow of information could lead very fast to an unfree situation in the real world.”

Jewish groups applauded the German court’s ruling. “We have to commend the Germans and the French for basically saying ‘in our societies, this is how we deal with the problems of hate, racism and Holocaust denial’,” said Rabbi Abraham Cooper of the Simon Wiesenthal Center in Los Angeles.

German newspapers seemed cautiously supportive of the high court’s ruling. Munich’s liberal Süddeutsche Zeitung praised it as “a small, boldly formulated contribution to combatting socially harmful Internet sites.” Web sites such as those of the Adelaide Institute “endanger an important legal value of the Germans, namely peaceful cooperation among population groups.” The conservative Frankfurter Allgemeine Zeitung questioned whether the Karlsruhe court “may not have gone beyond its means of enforcement. It will be difficult for the federal supreme court to plug this hole with a national penal code.”

Ulrich Sieber, a University of Munich professor of criminal law and information law, said that the Karlsruhe court decision “is a courageous step, but it will remain a toothless tiger” because it is difficult to enforce. “The ruling is only significant for people such as Mr. Töben, who are so imprudent as to come to Germany.” Extending German penal law to other countries is problematical, says Sieber, because other countries could similarly extend their criminal laws to Germany and elsewhere. “The Internet would then become a dangerous thing, because everyone who posts material on it would have to be concerned that he has thereby broken the law somewhere around the world.” The result would be an “informationally impoverished” Internet. “What we need,” says Sieber, is a harmonizing of the criminal codes of the various countries. There’s no other way to solve the problem.”

In a related case, a Paris court in late November ordered the American Internet giant Yahoo to block all French access to sites selling Nazi memorabilia. The case had been brought by three Jewish and “anti-racist” groups, who said that sites accessed through Yahoo violated French laws against “hate” publications and the sale of racially offensive material. In its defense Yahoo argued that it would be impossible to bar only French users, as US-based sites are accessed by people around the world. The French court gave Yahoo three months to comply with its ruling, or face hefty fines of more than $10,000 per day.

In late October a German court found a 36-year-old man guilty on four counts of “popular incitement” (Volksverhetzung) for having posted from his apartment in Zurich, Switzerland, on a Jewish web site a text that “denied the genocide of the Jews” in World War II. The court in Freiburg imposed a fine of 3,000 marks and a six month prison sentence (suspended), and ordered the seizure of the defendant’s computer. The defendant acknowledged that in material posted on the discussion forum of the “haGalil” web site, which promotes Jewish interests in Europe, he had cited various sources to dispute the familiar figure of six million Jewish wartime dead, and had questioned, on technical grounds, the familiar claims of mass killings of Jews in wartime gas chambers using the commercial pesticide Zyklon B. He had hoped, he said, to thereby promote a healthy discussion of historical issues. (Sources: “Haftstrafe als Prävention,” Badische Zeitung, Oct. 21; “Im Internet gegen den Holocaust polemisiert,” Stuttgarter Zeitung, Oct. 23).

“To you insane world
But one reply – I refuse.”
—Marina Tsvetaeva, Russian poet (1892-1941)