Munich, 29 May 1998 (RFE/RL) -- Germany's role in international computer communications has been thrown into doubt by a
judge's decision to convict a computer organization of assisting in
the distribution of child pornography.
A judge in a Munich court this week sentenced a former senior
official of the international computer organization, Compuserve, to two years imprisonment because some of the Internet programs carried by the company included child pornography. The jail sentence was replaced by three years probation on payment of a DM 100,000 ($57,000) fine.
It is the first time in Germany that a local official of an
international Internet company has been held legally responsible for text and images distributed world-wide. German and international legal experts have said it could have widespread repercussions, including the movement of international Internet providers out of Germany, taking with them technological know-how and also jobs.
A Frankfurt lawyer who specializes in Internet issues, Christopher
Kuner, said the conviction brings into the open a long-standing debate on how far Germany can go in forcing the new electronic media to accept German laws on what should and should not be published.
The decision by Judge Wilhelm Hubbert has caused an outcry among
advocates of free expression in Germany. It has also been questioned by legal experts who argue Compuserve should not have been prosecuted under a 1997 German law which recognizes the problems in controlling information placed on the international internet.
With his decision, Judge Hubbert overruled the prosecution which at
the end of the case had taken the unusual step of joining the defense in asking for the charges to be dismissed.
The prosecutor agreed that the accused, Felix Somm, the former managing director of Compuserve in Germany, did not know about the programs, which originated outside Germany, and did not have the means to stop their circulation. The programs were available around the world to anyone using the Compuserve service.
The judge rejected these arguments. "The accused is not a victim.
The truth is that he abused the medium," the judge said. He declared
that Compuserve's head office in the United States could have erased
material known to be offensive. He said it was "cheek" for Somm to
claim that he had not known about the offensive material. Judge Hubbert said that "even on the Internet there can be no law-free zones."
The judge also rejected arguments that Somm was only an employee
of the American-based company with restricted opportunities for taking
personal action. He said this reminded him of the arguments put forward by communist East German border guards who shot down those fleeing across the border and said they were only obeying orders.
Hans-Georg Weidinger is one of many communications experts who
suggested that the problem was bigger than the judge claimed. "In practice, it is impossible for any individual to monitor the tens of thousands of words and pictures which the Internet carries into
Germany every day and block out those which could be deemed offensive, whether it is pornography or racism," Weidinger said, "this ruling means that senior officials of any organization in Germany connected to the Internet can be punished for what is carried on the Internet although it has nothing to do with them."
Compuserve officials say that the offensive material which appears
on the Internet come from many countries. Several Russian organizations place material containing naked women on the internet. Child pornography originates in many countries. A gathering of German neo-Nazis in the Spanish island of Mallorca last week was advertised on the Internet.
A Munich lawyer specializing in Internet law, Frank Koch, said the
judge's decision and the views he had expressed brought new light on the international debate on how to control what appears on the Internet.
...One aspect of this is a debate on whether companies could be tried under national laws for what appears in the world-wide electronic media. This has been done to some extent in China and in Singapore but not in any democratic country, although there is a widespread desire to control pornography and some other matters..
The debate is international but is particularly intense in Germany.
Germany has created police units to monitor the Internet looking for
sites which they consider illegal under German law. According to Koch
they have had little or no success in persuading operators in Russia, the United States or other countries to close down programs which the Germans consider offensive.
German laws not only outlaw child pornography but also several
other topics, such as anything glorifying Nazism. They also ban some types of violent games.
Before the present case, the best-known legal examination of the
situation came in a trial in Berlin last year of a student, Angela
Marquardt. She ran a private service for Germans who wanted access to the Internet. One of the services she offered access to a left-wing magazine named "Radikal," which tells readers how to make bombs or how to derail trains. The source of the Internet program was in the
Netherlands. Although this German prosecutors insisted she had broken
German law, the court dismissed the charges against her. The decision was widely seen as a setback for those trying to use national laws to control the Internet
In its defense in the current case, Compuserve also publicized the
problems involved. After the charges were brought against it in April last year, the German branch of Compuserve shut down 200 sites providing material. That produced an outcry from some of the sites that their material had nothing to do with pornography and they were suffering discrimination.
Germany does have a law which attempts to control the internet and
other multimedia. One paragraph often quoted in this week's proceedings, says that those who offer Internet services can be held responsible for the content, but only in certain circumstances. It says they are accountable only "when they know about this content and it is technically feasible and personally possible for him to do so."
Lawyers specializing in the internet believe this should have brought acquittal for Compuserve's German service.
The case will now go the appeals court but some commentators are
already concerned about the effect it will have on Germany's position in the world of international electronic communication. Some newspapers have warned that the legal decision could diminish Germany's already modest role in international communications. The Munich newspaper, "Sueddeutsche Zeitung" said it had "thrown Germany back into the stone age" in regard to multi-media communications.
The defense is confident it will win on appeal. But it may take a year or even longer before the case comes to court.