Germany's New Multimedia Law and the Possible Consequences
An Interview with Ingo Ruhmann
Ingo Ruhmann is on the Board of Directors of the FifF (Computer Professionals for Peace and Social Responsibility). He is also an assistant to German Parliament member Manuel Kiper (Buendnis 90/Die Gruenen). Since August 1, a new law has been in effect in Germany, the "Informations- und Kommunikationsdienste-Gesetz (IuKDG)," or as it is more commonly called, the Multimedia Law.
Under the new law, German Internet service providers are not responsible for the content put on the Net by third parties, and so, many German providers and users have greeted it with a sigh of relief. For example, Felix Somm, the former manager of Compuserve Germany whom Bavarian prosecutors charged with distributing online pornography (as CI$-manager, he provides access to the Internet), told the Sueddeutsche Zeitung that there was reason to be "grateful" for the new law.
Maybe, maybe not. The Multimedia Law also requires providers to block Web sites deemed illegal by authorities if it is "technically possible and reasonable" to do so.
In April, i.e., even before the bill became law, the German Academic Network (DFN) blocked access not only to the leftist publication Radikal (parts of which it is illegal to distribute in Germany) but also to the Dutch provider XS4ALL where the pages were located. Thousands of Web sites which were and are not illegal in Germany were therefore blocked as well.
Is there any reason for German Net providers to happily welcome this new law?
Ingo Ruhmann: No, not at all; maybe for their lawyers, though. Because what is now about to begin in Germany will be a probably long running legal argument sparked by a single question: What does "possible and reasonable" actually mean? Even the government presented a relatively strict interpretation (in an answer to a small parliamentary inquiry initiated by the Green Party) - but the results of blocking so far have made quite clear that it is very unreasonable and very difficult to block access to a single Web site.
At the same time, prosecutors have long since proved that they don't really care. Whether or not sites will be blocked in the future depends on what prosecutors decide is worth blocking. According to the new Multimedia Law, for example, content deemed as dangerous to young people may not be accessible by young people. For example, the neo-Nazi sites put up by Ernst Zuendel in Canada were placed on the index by federal authorities and are therefore illegal. Now prosecutors can, from a legal standpoint, force German providers to block such sites.
And this naturally applies to any other content which violates German law, e.g., the display of symbols of anti-constitutional organizations, calls for criminal action, etc. Extremist right-wing content presents a very difficult case; there are only a few criminal deeds such as insulting the head of the government which can be committed at all in a foreign country. So we'll increasingly find ourselves dealing with the question of what sort of criminal action is legally -- and possibly -- prosecutable.
Let's pick up the Radikal case again, still under investigation by the German general prosecutor as to whether action will be brought against CompuServe, AOL, T-online or the DFN. XS4ALL (and with it, the criminalized publication) can be accessed quite easily from all over Germany at the moment. And the Amsterdam provider is still not doing anything illegal according to Dutch law.
Ingo Ruhmann: There's still nothing to be said against Radikal's content being offered there because it is legal in Holland. The problem is that parts of Radikal are illegal in Germany. That will be the pretext under which German providers will be required to block such material.
Which is, as we know, next to impossible on the Internet. So what happens next? What are the possible consequences German providers may have to face?
Ingo Ruhmann: The Multimedia Law is based on the assumption that blockades will be carried out according to normal criminal law. That law requires that those who break the law, in this case, the providers, are punished. They may be required to pay a fine or serve minor sentences; it differs from state to state. But the usual criminal measures can be taken. Same goes for trade regulations. It's possible that -- in the case of a provider who has refused to block content several times -- it could be argued that he's not trustworthy and his license may be pulled.
Those would be strict measures indeed. How likely is it that such steps would be taken? Because if you want to block certain content completely, there's really only one effective, radical step in the end: Germany goes offline! Surely it doesn't make sense to go after only one provider at a time?
Ingo Ruhmann: What we'll be facing in any case, regardless of the feasibility of such blockades, will be the attempts of prosecutors to settle the matter once and for all in the courts. The new Multimedia Law doesn't actually change anything with regard to substantive law; this is precisely why federal prosecutors are still pursuing the Radikal case. The office is convinced, and rightly so, that nothing has changed.
But what that means in the end is that this thing is going to last a long time as it runs through each stage of the legal proceedings. We may not have too many more new cases, although that could change quickly if, say, our Minister of Families, Ms. Claudia Nolte, decides after the summer holidays to mark a list of new sites to be blocked. Then these cases, too, would start their journeys through the courts. Hence my statement at the beginning: The lawyers are going to like this law.
So the legal profession will be doing quite well. At the same time, minister responsible for this law, Juergen Ruettgers (of the conservative Christian Democratic Union) intended the Multimedia Law to be a catalyst in the growth of the German Internet economy...
Ingo Ruhmann: Yes, finally we've found a way to create jobs in the Info-society.
The worst case scenario for this autumn would be that *all* German providers are forced to start new blockades of certain foreign addresses. Hidden motto: Intranet Deutschland.
Ingo Ruhmann: There's precious little justice in this world. Particularly in the judicial system. For instance, in the Radikal case, action was brought against only those providers, so it was said, who were known to the federal state prosecutor. So it can happen to anyone but not necessarily everyone.
And that's very much the way it might go in the future. Some local ISP might catch the eye of a local prosecutor. Or it might hit the larger German providers. But will it come to such a "worst case"? Up to now the blockades have always been called off as more and more mirror sites appeared, making the continuation of the blockade more troublesome than could be justified. And that proportion is written right into the Multimedia Law! But the damage to the individual provider is real in any case. Just consider the legal costs alone.
How does the new law deal with links? Are private individuals subject to legal action if they create a link to a criminalized page?
Ingo Ruhmann: The Multimedia Law utterly ignores links. But the German government has provided an interesting answer to this question (in reply to a parliamentary inquiry from the Green Party). The German government essentially agrees with the prosecutors. Links in search engines are legal because that is considered to be a technical, completely automatic process. But whoever identifies with that content by linking to it is subject to prosecution. But whether or not all this is truly legal is a matter that will have to be decided by the courts. And that could take some time.
The German prosecutors and politicians still don't seem all that aware of just how the Internet actually works. If German ISPs are still held liable for trafficking in illegal material simply because they provide access to the Net...
Ingo Ruhmann: No one ever insisted that the German politicians who brought this Multimedia Law into effect actually get a better understanding of the Internet. They're simply acting on what they know. And that's not a particularly good thing.
Media are subject to national and international rules; that's the idea we're used to. In Germany, responsibility over different types of media is actually split up between federal and state powers.
For the Internet, where mass and individual communication is mixed, there are no clear cut national or international rules. The federal government has taken it upon itself to create new laws and is convinced that control wouldn't be such a bad thing, that firewalls have to be raised against filth. What it boils down to is an attempt to bring German law and order to the worldwide Net.
Why is it so hard to get this medium? Granted, only about five percent of the German population is online and everyone else hardly knows what the fuss is about other than that the Net is usually reported within the context of headlines screaming about childporn Nazis. Is there a fear of the loss of authority here in Germany?
Ingo Ruhmann: It may be more of a cultural problem. First, the Internet short circuits various legal systems -- and these systems are incompatible...
In some southern U.S. states, at least as I understand it, online gambling is illegal. Whereas in Germany, the Red Cross runs lotteries, which hardly registers on the morality scale here...
Ingo Ruhmann: Right. What's illegal over there is legal here - and in some other matter, it's the other way round. Here you're not allowed to talk as frankly about certain subjects as you are in the States, whereas people in the U.S.A. are considerably more prudish than they are here.
Because these cultural norms simply do not mix, artificial walls are being raised around national boundaries. One reason is certainly many people are not used to this new freedom of expression, and in fact, they don't even find it attractive. Many are calling for some sort of control. The German government has heard these calls and is trying to deal with them.
But even the German government itself has remarkably warned against the hysteria and said that probably less than one percent of Internet content would be illegal in Germany.
Ingo Ruhmann: Yes, what's being sensationalized as filth and so on has little relation to what is actually going on on the Internet. But it does show how fears arise when new voices and points of view are heard. Plus, fear of new technologies is also a factor, and interestingly, those are being expressed this time from the conservative side. At least in this area, what one wants clearly demonstrated is that everything is technically under control, and if that's not technically feasible, you pretend it is anyway.
Seen from that angle, this is a fine example of symbolic politics. Politics that may not accomplish much, but can certainly do a lot of damage.
Do you foresee a hot German autumn on the Internet?
Ingo Ruhmann: I wouldn't hope for it, but it sure does look like it.
Michael Langer:mila@pr-langer.K.eunet.de is a freelance jorunalist based in Cologne.
This text was translated into English by Michael Langer and David Hudson. Published first on Rewired.