<nettime> Langer/Ruhmann: Germany's Multimedia Law

[dwh@berlin.snafu.de (David Hudson)]

Germany's New Multimedia Law and the Possible Consequences
An Interview with Ingo Ruhmann
By Michael Langer

[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.

Hence, the first question (Q): Is there any reason for German Net providers
to happily welcome this new law?


Ingo Ruhmann (R): 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 our Federal Republic, 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.


Q: 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.


R: 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.


Q: 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?


R: 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.


Q: 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?


R: 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.


Q: 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...


R: Yes, finally we've found a way to create jobs in the Info-society.


Q: 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.


R: 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.


Q: How does the new law deal with links? Are private individuals subject to
legal action if they create a link to a criminalized page?


R: 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.


Q: 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...


R: 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.


Q: 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?


R: It may be more of a cultural problem. First, the Internet short circuits
various legal systems -- and these systems are incompatible...


Q: 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...


R: 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.


Q: 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.


R: 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.


Q: Do you foresee a hot German autumn on the Internet?


R: I wouldn't hope for it, but it sure does look like it.


* Forum InformatikerInnen fuer Frieden und gesellschaftliche Verantwortung e.V.


Ingo Ruhmann: fiff@fiff.gun.de
FifF: http://hyperg.uni-paderborn.de/~FIFF
Michael Langer: mila@pr-langer.K.eunet.de

translation: Michael Langer, David Hudson




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