Real History and Plugging the Internet

Posted Wednesday, December 20, 2000

Wired

Berlin, December 125, 2000

German Hate Law: No Denying It

BERLIN -- If this week's border-transcending ruling by Germany's highest court proves anything, it's that an enormous distance remains between advocates of a free Internet and watchdogs against racism and hate-mongering.

The court, called the Bundesgerichtshof, issued a ruling on Tuesday that overturned a lower court ruling, and found that German law applies even to foreigners who post content on the Web in other countries -- so long as that content can be accessed by people inside of Germany. Specifically, the court found Australian Holocaust-denier Frederick Töben guilty of spreading "Auschwitz lies."

Töben, who was born in Germany, uses the website of his Australian-based Adelaide Institute to encourage people in the belief that the Holocaust has no historical basis. International reaction to the ruling differed wildly. Andy Mueller-Maguhn, a leader of Berlin's famed Chaos Computer Club hacker collective and a new Internet Corporation for Assigned Names and Numbers (ICANN) board member, was blunt in questioning the legitimacy of the ruling. "This German court wants to judge over the whole world in effect," he said. "No one knows what it means. We could easily agree that it seems likely to be a decision made by a judge who does not understand very much."

Mueller-Maguhn, something of a celebrity in Germany as a technology visionary, plans to take immediate action. He said he will contact Germany's highest court on Monday morning and invite someone from the court for a debate before Germany's legislature on the ruling -- and how it should be applied in the future.

"The court decision of the Bundesgerichtshof seems to be the worst Internet-dependent court decision so far," he said. "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. "Hopefully (the Bundesgerichtshof) will take a minute to think about this."

Töben himself made a similar argument. "Germany is trying to rule the world again by saying that the people who access the Internet have no choice," he told the Associated Press.

But Rabbi Abraham Cooper, Associate Dean of the Simon Wiesenthal Center in Los Angeles, applauded the court action. "We commend the German authorities for sticking to their commitment -- it's their democracy, these are their laws," he said by phone from California. "In the first months of this year they had a thousand hate crimes in Germany. We need to be sensitive to, and grateful to, to the democratic government of Germany when its says 'We have anti-Nazi laws in place and we still need those laws.'" "Maybe for those of us who live on the other side of the Atlantic, this seems remote or abstract. If people are not outraged by the Adelaide website, how about mlking.org? That site is hosted by white supremacists. You can't outlaw that site. But it is an early warning to us. There's no librarian online. A kid goes to the Internet and plays Russian Roulette."

Cooper urges Internet freedom advocates in the United States and elsewhere to keep an open mind on issues that have sprung up only recently with the widespread popularity of the Internet. "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. You in America have your own laws, but at least respect our values.'" "It was their blood that was shed. What's theoretical for us is very real over there ... the Internet community is going to have to address these issues in a less contentious way."

The German authorities arrested Töben in 1999 for distributing Holocaust-denying leaflets on a visit to Germany. The lower court found Töben, 56, guilty of offending the memory of the dead, but ruled that German law against inciting racial hatred could not be applied to content on a foreign website. He was sentenced to 10 months in prison, and served seven months of that term before returning to Australia.

Germany's Federal Court of Justice took a major interpretive step beyond the lower-court ruling this week, however. It found that sweeping German legislation passed in the wake of World War II that banned the Nazi party and any glorification of it -- including denial of the Holocaust -- can be applied to Internet content that originates outside of the country's borders.

Töben left Germany for Australia when he was 10 years old and went on to earn a Ph.D. in English and Philosophy from Melbourne University. He told the Australian press this week that he believes he could spend up to five years in jail if he returns to Germany. He said he's willing to serve more time in German jails for his beliefs, but does not relish the thought of what might happen to him in such circumstances. "I would not be safe in a German jail," he told Australia's ABC television. "They would eliminate me and this gives me reason to think it would be foolish if I did go back."

Although Töben could theoretically face extradition, so far Australia reports no extradition request from Germany.

He could face a more immediate legal challenge from within his own country. Australia's Human Rights and Equal Opportunity Commission issued an order in October instructing Töben to apologize to the Jewish community and remove at least some of the content from his website. Töben refused. The importance of the German court ruling may be in emboldening Australian authorities to make a more aggressive approach to what it considers offensive content.

Cooper of the Wiesenthal Center and others emphasize that a gradual and ongoing process of international consultation needs to occur to shape a new consensus on how to deal with such touchy issues of freedom and regulation. "The basic approach to it, in our view, is not necessarily a whole ton of UNESCO- and UN-sponsored rules that would be more satisfactory to dictators than students," Cooper said. "It is to look for more creative leadership on the issue on the part of the collective Internet community. "I think if we talk about the exchange of ideas, including the uncomfortable ones, we all know that at the end of the day, everyone can get up on the Internet. You can't keep them off. They have to have a coherent policy, and that doesn't exist yet."

Germany, too, is arguing for more international coordination and in fact, the Wiesenthal Center hosted a conference on the topic of the Internet and hate speech last summer in Berlin, all part of an ongoing effort to encourage creative thinking.

"The best chance to fight against right-wing material on the Internet is on an international level," Hans-Gertz Lange, a spokesman for Germany's criminal investigative agency, told the IDG News Service. "But when I think of the U.S. or Canada, it's extremely unlikely that they'll change their laws in accordance with ours. Their concept of freedom of speech is tied up with their history; our laws against incitement to racial hatred are tied up with ours."

Michel Friedman, a leader of Germany's Jewish community, also believes in inflexibility in responding to the power of the Internet to spread hate. "(The Net) is one of the communications basics number one in the far right scene, not only in Germany but in the whole of Europe and even America," he said. "It's communication place number one for the exchange of neo-Nazi thinking in the world. "This is very difficult to handle. But I believe we have to be very creative next time on that issue. Worldwide, we try to work on this issue. We are just in the beginning."