Uwe Hessler, “German Child Pornography Law Hits Snags,” Deutsche Welle, February 23, 2010, http://www.dwworld.de/dw/article/0,,5278471,00.html.
GERMANY FREEDOM HOUSE Freedom on the Net The role given to the BKA by the law was also criticized, with opponents arguing that content issues should be dealt with at the state level. Existing federal laws, such as the Telemedia Act and the Telecommunications Act, address general liability, data protection, and information transport, not content. Moreover, the BKA list is not open to the public and the procedures for checking its accuracy and challenging it directly appear inadequate.
An independent expert group is tasked with drawing random samples from the list to determine whether the content is indeed child pornography. To appeal a listing, the website owner would have to go to administrative court.
Although there is a federal law addressing youth protection in different types of media, youth protection on the Internet is principally addressed by the states and their joint agreement on the topic, known as the Jugendmedienschutz-Staatsvertrag (JMStV).Compliance with the JMStV, which outlaws content similar to that outlawed by the penal code, is overseen by the Commission for Youth Protection Relating to Media, which can ask the Federal Department for Media Harmful to Young Persons to put a website on its blacklist of youth-endangering media. Offending website owners residing in Germany are prosecuted, but if they are beyond the reach of German authorities, the blacklist is made available for integration into privately owned filtering software. Moreover, service providers have formed a voluntary self-regulation entity called the Freiwillige Selbstkontrolle Multimedia-Diensteanbieter (FSM), and participating search-engine companies have agreed to remove blacklisted websites from their search results.20 Content that is forbidden to children but not to adults, such as adult pornography, must be made available in a way that verifies the age of the user.There is no censorship prior to publication. However, figures released by Google in 2010 on the number of requests for postpublication content removal by government entities seem to indicate that this strategy is used extensively in Germany. The country ranked second, behind Brazil, with 188 requests for removal between July 1, 2009, and December 31, 2009. Google complied fully or partially with 94.1 percent of these requests.22 Notably, A revision of the JMStV was due to be adopted by the end of 2010, but eventually failed. It would have required each website hosted in Germany to include a tag like a movie rating specifying if its content should be restricted to certain age groups (e.g. six years and older, 12, 16 or 18 years and older). Critics of this revision conducted an experiment showing that even ratings specialists did not agree when trying to rate internet content, let alone any number of private individuals, who would under the new JMStV have to rate their own material. Further unresolved issues concerning this rating included liability and supervision issues and how to even apply such a provision to dynamic websites. See “Jugendmedienschutz-Novellierung endgltig gescheitert,” Heise Online December 16, 2010, http://www.heise.de/newsticker/meldung/Jugendmedienschutz-Novellierungendgueltig-gescheitert-1154880.html (in German).
Currently, Google search results state how many hits have been removed for legal reasons, and offer a link to ChillingEffects.org for more information. Users who follow this link have to opportunity to compare the results for their search between Google.de and Google.com.
BPjM, BPJMThema Wegweiser Jugendmedienschutz: Ein berblick ber Aufgaben und Zustndigkeiten der Jugendmedienschutzinstitutionen in Deutschland (Berlin: BPjM, 2009), http://www.bundespruefstelle.de/bpjm/redaktion/PDF-Anlagen/bpjm-themawegweiser-jugendmedienschutz,property=pdf,bereich=bpjm,sprache=de,rwb=true.pdf (in German).
Google, “Transparency Report: Government Requests,” http://www.google.com/governmentrequests/, accessed September 7, 2010.
GERMANY FREEDOM HOUSE Freedom on the Net other European countries logged far fewer requests; the only ones with more than 10 were Britain (59), Italy (57), and Spain (32). According to the German news website Spiegel Online, the content at issue in the German requests was mainly defamation, Holocaust denial, and unconstitutional neo-Nazi material.23 The Google figures do not include sites removed because of child pornography or copyright infringements, or removals that Google initiated based on its own policies, such as a rule against hate speech on its blog-hosting platform, Blogger.Paragraph 8 of the Telemedia Act expressly states that access providers are not legally responsible for their customers’ content unless they collaborate with users in breaking the law. However, courts have continued to disagree on whether web-hosting businesses and access providers can be made liable under the concept of Strerhaftung (liability of the interferer), defined in the civil code (for example in Sections 862 and 1004) as interference with the property of others. This concept has been invoked with respect to intellectual-property rights, business competition, and personality rights, among other topics.
A 2009 decision by a state court in Hamburg controversially extended the concept of Strerhaftung from web-hosting services to access providers. The access provider Hansenet/Alice had asked the court whether it was obliged to block access to websites with illegal content. While the court ruled that Hansenet/Alice could not “reasonably” be required to block, it based its verdict not on Paragraph 8 of the Telemedia Act, but on the view that the available blocking technology would only have a limited effect. Critics of the ruling argued that it would oblige access providers to block once effective means have been put in place.25 The types of notification required to trigger the liability of the provider also remained uncertain, as did the extent to which providers could be sued by customers for improperly blocking or removing their content.
Germany is home to a vibrant web community and blogosphere, though the disproportionately young and male population of active users probably affects the mix of topics that are discussed. A great deal of attention is given to telecommunications and internet policies in general, and censorship and surveillance/data-retention issues in particular. A broad public protest against internet censorship in mid-2009 united hackers and digital activists with mainstream bloggers and Twitter users. The protesters launched an e-Petition, which was quickly signed by more than 130,000 people. “Google-Statistik: Wie die Deutschen Zensur-Vizeweltmeister wurden,” Spiegel Online, April 21, 2010, http://www.spiegel.de/netzwelt/netzpolitik/0,1518,690278,00.html (in German).
See Google, “Government Requests FAQ,” http://www.google.com/governmentrequests/faq.html, accessed September 7, 2010.
Holger Bleich, “Geplante Kinderporno-Sperre knnte andere Sperrverfgungen erleichtern,” Heise Online, May 14, 2009, http://www.heise.de/newsticker/meldung/Geplante-Kinderporno-Sperre-koennte-andere-Sperrverfuegungen-erleichtern219091.html (in German).
Markus Beckedahl, “The Dawning of Internet Censorship in Germany,” Global Voices Advocacy, June 16, 2009, http://advocacy.globalvoicesonline.org/2009/06/16/the-dawning-of-internet-censorship-in-germany/.
GERMANY FREEDOM HOUSE Freedom on the Net VIOLATIONS OF USER RIGHTS The German Basic Law safeguards freedom of expression and freedom of the media (Article 5) as well as the privacy of letters, posts, and telecommunications (Article 10). While these articles have also set the standard for the online world, a groundbreaking 2008 ruling by the Federal Constitutional Court declared that the general right of personality guaranteed by Article 2 of the Basic Law “encompasses the fundamental right to the guarantee of the confidentiality and integrity of information technology systems.”27 Unfortunately, these rights have increasingly been contested in a trend that began even before the September 2001 terrorist attacks on the United States.28 This is particularly worrying with respect to the rights of journalists. Like the clergy, defense lawyers, attorneys, counselors, and various categories of politicians, journalists have been accorded special standing by Paragraph 53 (1) 5 of the code of criminal procedure, which grants them the right to refuse to give evidence.
However, the 2001 Act for Limiting the Secrecy of Letters, the Post, and Telecommunications (Article 10 Act–G 10) enables secret services to intercept, monitor, and record private communications, and it differentiates between the protected professions, allowing surveillance of counselors and journalists if the public interest in using their information to combat serious crimes outweighs the public interest in the performance of their professional tasks.
There have been a series of cases in which journalists’ rights have been violated. In 2008, it was revealed that the Federal Intelligence Agency (BND) had been following e-mail exchanges between an Afghan politician and an editor at the German weekly Der Spiegel for months. The chairman of the Parliamentary Control Panel for the BND at the time voiced his disappointment that the agency had not adopted a stricter attitude toward such matters in the wake of similar scandals in 2006.29 In fact, a Constitutional Court ruling in February 2007 had set a strong precedent for the protection of journalists’ sources.30 It declared criminal investigations against journalists unconstitutional if the whole or main aim was to Bundesverfassungsgericht [Federal Constitutional Court], Headnotes to the Judgment of the First Senate of 27 February on the basis of the oral hearing of 10 October 2007—1BvR 370, 595/07, http://www.bundesverfassungsgericht.de/entscheidungen/rs20080227_1bvr037007en.html.
Even the Europe-wide security responses to the 2001 terrorist attacks may be seen as the seamless continuation of an existing trend toward increased surveillance. See David Banisar, Speaking of Terror: A Survey of the Effects of Counter-terrorism Legislation on Freedom of the Media in Europe (Strasbourg: Council of Europe, 2008), http://www.coe.int/t/dghl/standardsetting/media/Doc/SpeakingOfTerror_en.pdf.
“German Spies Caught Reading Journalist’s E-Mails,” Deutsche Welle, April 21, 2008, http://www.dwworld.de/dw/article/0,,3280594,00.html.
Mikls Haraszti, Access to Information by the Media in the OSCE Region: Trends and Recommendations: Summary of Preliminary Results of the Survey (Vienna: Organization for Security and Cooperation in Europe, April 30, 2007), 11, http://www.osce.org/documents/rfm/2007/05/24250_en.pdf.
GERMANY FREEDOM HOUSE Freedom on the Net uncover the names of their informants. It further stated that the publication of a functional secret is not sufficient grounds for searching and seizing a journalist’s property.In addition to police authorities and secret services, private companies including the airline Lufthansa and Deutsche Telekom have spied on journalists to identify their sources.In 2008, Deutsche Telekom was found to have abused several hundred thousand sets of telephone traffic data, both landline and mobile, pertaining to journalists, board members, and others, with the goal of tracing information leaks within its ranks.33 The company had apparently even employed a private detective agency to scan all news on Deutsche Telekom between January 2005 and March 2006 and create a list of journalists to be spied on because they apparently had access to confidential internal information.34 The company itself acknowledged the “criminal energy” and “methodical malice” apparent in this affair.35 At the time of writing, the trial had just started, but officials had already been criticized for failing to charge the then chairman of the company’s supervisory board and the chief executive, and for delays in the release of crucial information to victims and plaintiffs.A substantial number of cases involving large companies and their questionable methods of gathering and using data have preoccupied the courts and the public in recent years. For instance, a 2008 case centered on the supermarket chain Lidl, which had comprehensively spied on its employees.37 In the wake of scandals like these, an amendment to the Federal Data Protection Act was adopted in 2009, adding many provisions to strengthen employees’ and users’ rights regarding surveillance and unauthorized use of their data.38 The latest debates on privacy and the practices of internet companies have revolved around Facebook and Google’s Street View feature.While anonymous e-mail services, wireless internet-access points, and public telephone booths have remained legal, mobile-phone users who buy a new contract or Decision 1 BvR 538/06, 1 BvR 2045/06, February 27, 2007. For the larger European context, see Banisar, Speaking of Terror, 15 ff.
“Lufthansa nutzt Passagierdaten fr berwachung,” Netzpolitik.org, June 7, 2008, http://www.netzpolitik.org/2008/lufthansa-nutzt-passagierdaten-fuer-ueberwachung/ (in German).
“Telekom bespitzelte Aufsichtsrte, Manager und Journalisten,” Spiegel Online, May 24, 2008, http://www.spiegel.de/wirtschaft/0,1518,555148,00.html (in German).
“Konzern beauftragte eine Detektei und bespitzelte diverse Reporter,” UMTSlink, September 13, 2010, http://www.umtslink.at/3g-forum/news/63161-deutsche-telekom-bespitzelungsaffaere.html (in German).
Deutsche Telekom, “Deutsche Telekom analysiert Ttikeit der frheren Konzernsicherheit,” news release, February 10, 2010, http://www.telekom.com/dtag/cms/content/dt/de/812936printversion=true (in German).
“Telekom-Bespitzelungsaffaire: Journalisten wehren sich gegen Einstellung des Verfahrens,” Golem.de, June 28, 2010, http://www.golem.de/1006/76063.html (in German).
See, for instance, Anselm Waldermann, “Spitzel-Skandal: Lidl entschuldigt sich fr Stasi-Methoden,” Spiegel Online, March 26, 2008, http://www.spiegel.de/wirtschaft/0,1518,543597,00.html (in German).
For a summary, see for instance Rhein Main Treuhand, “Datenschutz 2009 Verschrfung und Sanktion,” http://www.rheinmain-treuhand.de/aktuelles/200911-datenschutz-2009-verschaerfung-und-sanktion.html (in German), accessed September 13, 2010.