U.S. - European Disagreement over Control of the Internet: Private Control of International Resources

Structure

A. Introduction

B. Main Part
I. Control of Contents published on the Internet
1. Control of Contents in the United States
a) Attempts to Regulate the Internet through Legislation
aa) The Communications Decency Act (CDA)
bb) The “Child Online Protection Act” (COPA)
cc) Regulation through State Law
b) Other Attempts to Regulate Contents on the Internet
aa) The “CyberTipline”
bb) The “Innocent Images Task Force”
cc) Regulation by the Provider
c) Summary
2. Control of Contents in Germany
a) Legislation
aa) Constitutional Background – Art. 5 GG
bb) The “Teledienstegesetz” (TDG) and the “Mediendienstestaatsvertrag” (MDStV)
(1) Legal Dispute over Legislative Competence
(2) The TDG
(3) The MDStV
(4) Delimitation Problems
cc) Penal Provisions according to the German Criminal Code (Strafgesetzbuch, StGB)
(1) Art. 130 StGB – Agitation of the People
(2) Art. 131 StGB – Glorification of Violence
(3) Art. 184 StGB – Dissemination of Pornographic Writings
(4) Other Penal Provisions according to the StGB
(5) Applicability of the German Penal Code
dd) The “Gesetz über die Verbreitung jugendgefährdender Schriften und Medieninhalte” (GjSM)
ee) The “Jugendmedienschutz-Staatsvertrag” (JMStV)
ff) The New Jugendschutzgesetz (JuSchG)
b) Other Attempts to Regulate Contents on the Internet
aa) Jugendschutz.net
bb) „Freiwillige Selbstkontrolle Multimedia-Dienstanbieter e.V.“ (FSM)
c) Summary
3. Conclusion
II. Control and Administration of Domains
1. Technical Aspects of the Domain Name System
2. Administration of Domain Names
3. Legitimacy of ICANN
a) Frontiers of the Technical Mandate
b) The Carter Coal Doctrine
c) Possibilities to Regain the Power
d) The Administrative Procedure Act (APA)
e) Point of View of the European Union
f) The 5th Amendment to the Memorandum of Understanding
4. Conclusion

C. Final Thoughts

A. Introduction

“A Declaration of the Independence of Cyberspace: Governments of the industrial world, you weary giants of flesh and steel, I come from cyberspace, the new home of mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”^[1]

The Internet has become the probably most important resource of information and has also created a chance for people from all over the world to easily communicate with each other and exchange ideas. However, there is quite a number of legal issues concerning the Internet which have not been solved yet. The “Declaration of the Independence of Cyberspace” states that the so called Internet Community wants the Internet to be a place without any rules and regulations created by governments. Due to the international and decentralized character of the Internet, there are also various problems when it comes to applying traditional rules, or trying to create new solutions in order to prevent the Internet from becoming a wholly unregulated medium where everybody can do whatever he, or she wants.

The paper is intended to show how Germany and the United States of America tried to deal with those legal issues concerning the Internet and which perspectives both countries are aiming at. The paper will also touch the issue of control and administration of domains.

B. Main Part

I. Control of Contents published on the Internet

The Internet is a great resource for all kinds of information, especially when it comes to scientific research. However, on the Internet one will also find any kind of abnormality the human mind could possibly think of.^[2] Information of such a kind, whether it be politically, or sexually indecent, or offensive in any other way might possibly affect the development of minors. Even though there is no proof for the connection between audiovisual violence and real violence, a lot of people think that the increase of violence is a result of detailed presentation of cruelties in the media.^[3]

Both countries, the United States and Germany took a different approach to deal with that type of information published on the internet.

1. Control of Contents in the United States

By now, most Americans have an internet connection or at least access to a connection. The evolution of the Internet, as far as private use is concerned, started out in the United States at an earlier point in time than anywhere else in the world.^[4] Due to that fact, Americans have had the Internet for a much longer period of time.^[5] Therefore, compared to the controversy in Europe the discussion about the necessity of regulating influence on unwanted contents is already quite advanced.^[6]

a) Attempts to Regulate the Internet through Legislation

The discussion started out as early as 1990, when in Germany most people had not even heard of the Internet yet. The enormous potential of the Internet and associated concerns have increasingly come to the attention of the public since the mid-90’s.^[7] According to a study of the Princeton-University in 1995 eighty-five percent of the American people were afraid that pornographic contents published on the Internet might turn into a danger for the youth.^[8]

aa) The Communications Decency Act (CDA)

The first attempt of the American legislator to react to the new possible threat was the Communications Decency Act.^[10] In February of 1996 Congress approved the Act and it was signed by President Clinton on February eighth of 1996. Even before that date the Act had already been a controversial matter.^[11][9]

It was the aim of the Communications Decency Act to protect the youth from the bad influence of pornographic and other offensive information by creating rules over punishable contents on the Internet. It prohibited the use of an interactive computer service to knowingly transmit, send, or display any “indecent” or “obscene” material to minors.^[12] One of the essential ideas of the CDA was the responsibility of the Internet providers for the behavior of their customers. The provider was obliged to suppress any indecent, or patently offensive content scattered over his pages by his customers. In case of violation of this obligation, the provider could be punished according to the CDA. The punishment ranged from a fine up to 250.000 $ up to two years of imprisonment.^[13] However, the CDA also allowed providers to insulate themselves from liability and invoke affirmative defenses.^[14] Since the Act did not distinguish between mass communicative services and individual communication, these rules could have also been applied to private e–mails.^[15]

Shortly after the CDA came into force the American Civil Liberties Union (ACLU), a leading civil rights organization, raised a complaint against the act. The public response to the act was also negative.^[16] On June 26th of 1997 the United States Supreme Court declared the CDA unconstitutional and therefore no longer applicable.^[17] According to the opinion of the Court the CDA violates the 1st Amendment of the American Constitution, which is in particular applicable to the Internet. The Supreme Court came to the conclusion that the terms “indecent” and “patently offensive” used in the CDA were too indefinite and therefore contradictory to the void for vagueness doctrine.

Indefinite criminal law is unconstitutional if it violates the void for vagueness doctrine that is derived from the due process clause of the 5th and 14th Amendment.^[18] In case of an indefinite law interfering with behavior protected by the 1st Amendment the demands are even more severe than in other cases.^[19] That is due to the fact, that indefinite laws have a tempering effect on free speech and therefore are suitable to cause a kind of self-censorship of the people which might lead to a loss of vitality, variety and frankness of the public discussion, which is indispensable for a representative democracy.^[20] The only way to guarantee and protect free speech is therefore to declare a law that is too vague no longer applicable.^[21] However, there is no homogeneous standard that describes under which circumstances a law violates the void for vagueness doctrine. Instead, as a typical aspect of the common law system the individual case is always decisive.^[22]

The Supreme Court stated in its decision “Reno v. American Civil Liberties Union” that the use of the undefined terms “indecent” and “patently offensive” would provoke uncertainty among speakers about how the two standards relate und just what they mean.^[23] “The CDA’s vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.”^[24] Therefore the statute abridges the freedom of speech protected by the 1st Amendment.^[25] In that context the Supreme Court referred to the decision “Gentile v. State Bar of Nevada”^[26] in which the Court determined that cases of “content based regulation” require a very high standard of certainty and clarity in order to meet the constitutional requirements derived from the freedom of speech in the 1st Amendment. The Court presumed that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. Therefore, “the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”^[27]

bb) The “Child Online Protection Act” (COPA)

The second attempt of the American legislator to regulate contents published on the Internet was the “Child Online Protection Act” (COPA).^[28] In 1998 senator Dan Coats who was one of the proponents of the CDA created a more concise bill, which was evaluated by the former opponents of the CDA as a bare reprint of the CDA.^[29] However, there were several differences compared to the CDA. First of all, the COPA was supposed to be applied only to commercial websites. The COPA made it a federal crime to use the world wide web to communicate “for commercial purposes” material considered “harmful to minors”, with penalties of up to $ 150,000 for each day of violation and up to six months of imprisonment. According to the COPA the “contemporary community standards” were decisive for what would be considered harmful to minors. On the other hand the COPA was supposed to be applied only to such contents which did not have any serious literary artistic, political or scientific relevance. The Act was signed by President Clinton in October of 1998.

Shortly after that, the ACLU and a number of other plaintiffs took legal action against the COPA. In February of 1999 the Court of Appeal in Philadelphia ruled in “ACLU v. Reno II” that the COPA is unconstitutional, because it violates the 1st Amendment.^[30] The appeal of the ministry of justice did not lead to a different result. Because of the peculiar geography-free nature of cyberspace the most restrictive community standards would be decisive and therefore the COPA imposes a burden on speech that is protected for adults.^[31] The 3rd US Circuit Court of Appeals confirmed the decision concerning the COPA.^[32]

cc) Regulation through State Law

Even though the national legislator has not been successful creating an act that allows some kind of regulation of the internet, some of the states have. According to the Connecticut House Bill 6883 of 1995 “a person is guilty of harassment in the first degree when, with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by […] computer network.”^[33] Since 1997 in the state of California there is a law called “Children’s Internet Protection Act” which obligates schools to regulate the schools Internet-access to contents that are harmful for adolescents.^[34] According to the senate bill 127 of the state of New Mexico “it is unlawful for a person to disseminate indecent material to a minor by computer when knowing the character and content of the communication that in whole or in part depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and that is harmful to minors […].”^[35] However, some of those state laws have been declared unconstitutional as well.^[36]

b) Other Attempts to Regulate Contents on the Internet

Since legislation did not succeed in most cases to create a law that meets the constitutional requirements and allows some kind of regulation of internet contents, there are some other attempt to regulate the Internet.

aa) The “CyberTipline”

One of the most important organizations regulating the internet is the so called “CyberTipline”. It was the intent to better safeguard children while online, when key public- and private leaders joined with the National Center for Missing & Exploited Children on March 9 in 1998, to launch the CyberTipline. It was created for individuals to report incidents of child-sexual exploitation including online enticement of children for sexual acts. It is possible to fill out an online report form under www.cybertipline.com. The CyberTipline then makes those reports available to the FBI. That is due to the fact, that even though the CDA is no longer applicable, it is still a crime to publish obscenities, or child pornography on the internet according to general criminal law.^[37]

bb) The “Innocent Images Task Force”

In 1995 the FBI has created a special task force called the “Innocent Images Task Force”. It works to combat child pornography and child predators online. In order to do so, undercover identities are used to contact potential suspects and find out who they are.

cc) Regulation by the Provider

In addition to those activities some of the Internet-Providers regulate contents, too. The Provider ClearSail for example offers its customers a cleaner and safer Internet experience.^[38] The filtering of Clear Sail is Server Based so that the customers are not able to access any web page that is on the block list. Those are for example pages that contain pornography, hate, bomb making, gambling, hacking, suicide and other contents that are considered dangerous. To find and block those pages ClearSail uses a so called “Crawler-Software”.

c) Summary

In the United States the legislator did not succeed in creating an act specifically designed for the regulation of Internet contents which also meets the constitutional requirements. There are basically two reasons for that. First of all, in the United States there are different organizations which stand up and fight for liberalism and free speech especially on the Internet. Those Internet-Liberty groups have a rather high influence in the United States. Second, the freedom of speech is indispensable for the American understanding of a representative democracy and therefore has an extremely high value in American constitutional law. It is “the matrix, the indispensable condition of nearly every form of freedom”.^[39]

However, even though there may not be a specific Act concerning contents on the Internet, that does not mean that the Internet is not regulated at all. As shown-above, the general criminal law can also be applied to contents on the Internet. The FBI is investigating such contents. Plus, some of the American Internet Providers do regulate contents as well. Last but not least, the “CyberTipline” has made it possible for the public to help the FBI finding contents such as child-pornography in order to hold the publisher responsible.

2. Control of Contents in Germany

In Germany, soon after the discussion in the United States had started, people became aware of the need to regulate contents on the Internet in some way. Similar to the American situation there were different approaches in order to do so.

a) Legislation

Also similar to the American approach, the German legislator passed new laws concerning Internet contents. On the other hand, the legislator also changed some of the “old acts”, so that those could be applied to Internet Contents as well.

aa) Constitutional Background – Art. 5 GG

Art. 5 sec. 1 of the German Basic Law (Grundgesetz, GG) lays down the basic rights of communication. Therefore all legislative action concerning communication has to be compatible with the requirements in art. 5 GG. According to art. 5 sec. 1 sentence 1 everyone shall have the right to freely express and disseminate ones opinion in form of speech, writing and pictures, and to freely inform oneself by using generally accessible sources. There shall be no censorship according to art. 5 sec. 1 sentence 3. In one of its early decisions the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) pointed out that the freedom of media is not merely a subjective right, but also an objective guarantee.^[40] Therefore the legislator is supposed to make sure that the media system works. However, according to art. 5 sec. 2 GG the basic rights of communication can be restricted by general laws, laws to protect young people and laws that protect personal honor. In order to be considered a general law the provision may not prohibit a specific opinion (content neutrality) and at the same time the law has to serve a purpose that has a higher rank of importance than the freedom of opinion itself.^[41] The laws that serve the protection of young people do not have to meet those requirements.^[42] The prohibition of censorship in art. 5 sec. 1 sentence 3 GG is granted without any possibility of restriction.^[43] However, the term censorship only covers preventive procedures that are required before a content may be published and not such procedures that take place after the initial publication.^[44] Art. 5 sec. 3 GG grants the freedom of art, science, research and teaching. The restrictions laid down in art. 5 sec. 2 GG cannot be applied to the rights granted by art. 5 sec. 3 GG.^[45] However, the freedom of art finds its frontiers in colliding civil rights of others and the general constitutional values.^[46] The protection of young people is considered such a value.^[47]

In addition to the national constitutional context, Internet regulation also has to be compatible with art. 10 EMRK, which protects the freedom of speech, as well.^[48]

bb) The “Teledienstegesetz” (TDG) and the “Mediendienstestaatsvertrag” (MDStV)

Two laws concerning the regulation of the Internet and the liability for Internet contents have been enacted. At the federal level there is the “Teledienstegesetz” (TDG) which would be translated Tele Service Act. On the federal level there is the “Mediendienstestaatsvertrag” (MDStV) which is a Media Service Interstate Treaty.

(1) Legal Dispute over Legislative Competence

Before the TDG and the MDStV came into force there had been legal dispute between the federal and state governments. The question was whether the states (Bundesländer) or the federation had the legislative competence to regulate the “new media”.^[49]

Since Germany is a federal republic, legislative power is shared between the states and the federation. As long as the constitution does not provide a special competence for the federation, the states have the legislative competence, art. 70 sec. 1 GG. The federal state prayed in aid its exclusive legislative competence for telecommunication in art. 73 No. 7 GG.^[50] The states emphasized that in the constitution there is no explicit competence of the federation for the new services.^[51] Therefore, according to art. 70 sec. 1 GG the states have the legislative power. To avoid a decision of the Federal Constitutional Court (“Bundesverfassungsgericht”) a compromise was reached in 1996. According to that, the states have the legislative power for services addressed to the general public, while the federal state has the legislative power for those services that would be considered individual communication. The result of the compromise is that there is a law at federal level as well as a law on at state level.

(2) The TDG

The TDG was signed on July 22nd of 1997 as part of the Information- and Communication Services Act (IuKDG) and last changed on December 14th of 2001. According to art. 1 TDG its purpose is to create homogeneous economical conditions for the various possible uses of the electronic Information- and Communication-Services. Art. 2 sec. 1 TDG defines the term “Teledienst”. According to that, Tele Services are all information and communication services for individual use of combinable data. Characteristic for Tele Services is therefore the individual use and the need to ask for the service.^[52] Even though art. 2 sec. 2 TDG states a few examples it appears to be difficult to apply the definition in art. 2 sec. 1 TDG to some of the various services on the Internet.

The TDG contains specific liability rules in art. 8-11 TDG. Art. 8 sec. 1 TDG clarifies that Service Providers are liable without any restriction for their own contents and information according to the general laws. The term “general laws” in that context does not have the same meaning as it does in art. 5 sec. 2 GG. Instead the term covers all laws “outside” of the TDG itself.^[53] Therefore all general criminal, private and public law can be applied. According to art. 9-11 TDG the Service Providers are not reliable for information of others as long as they fulfill certain requirements depending on whether it is Content-, Access-, or Service Provider. For example according to art. 11 sentence 1 No. 1 TDG Service Providers are not reliable as long as they did not know about the illegal contents that they saved for their users.

(3) The MDStV

The Media Service Interstate Treaty was signed on December 12th of 1996 and last changed on July 2nd of 2002. The Treaty, just like the TDG, contains a definition of the services it is supposed to apply to. According to art. 2 sec. 1 MDStV Media Services (“Mediendienste”) are information- and communication services that are intended to be received by the general public. That covers all Online Services that the TDG or the Interstate Treaty on Broadcasting (“Rundfunkstaatsvertrag”, RStV) cannot be applied to.^[54] However, the media services might be compared to broadcasting.^[55]

There are rules about the liability of media service providers in art. 6-9 MDStV, which meet the requirements set by art. 12-14 of the European E-Commerce Directive. The liability rules in art. 6-9 MDStV are almost the same as the ones in art. 8-11 TDG.^[56] Therefore media service providers are liable for their own contents according to the general laws, but also according to the MDStV itself, art. 6 sec. 1 MDStV. That difference to the TDG is due to the fact that the MDStV contains a specific rule in art. 12 MDStV concerning illegal contents. According to that, services are for example illegal if there is a violation of criminal law (art. 12 sec. 1 No. 1 MDStV), if the service glorifies war (art. 12 sec. 1 No. 2 MDStV), or if the service is obviously suitable to strongly endanger children or adolescents morally (art. 12 sec. 1 No. 3 MDStV). However, art. 12 MDStV will be changed by the new Interstate Treaty on Protection of Minors in the Media (“Jugendmedienschutz-Staatsvertrag”, JMStV). The new art. 12 MDStV simply declares the rules concerning Media Services laid down in the JMStV applicable, art. 25 sec. 4 No. 3 JMStV.

(4) Delimitation Problems

Obviously the two terms Tele Service and Media Service cannot be kept apart easily.^[57] The aspect of delimitation between individual exchange of information and information that is intended to be received by the general public does not always solve the problem when it comes to the various new services on the Internet. Even for the “simple” example of a homepage it is hard to tell whether it is a Tele Service, or a Media Service. A homepage is usually intended to be received by the general public (Media Service). However, it needs to be asked for and does take some interaction to view the page (Tele Service).^[58] That simple example shows that services can be either one, a Tele, or a Media Service. Therefore, in order to separate the two services, the content of the service is always decisive.^[59]

cc) Penal Provisions according to the German Criminal Code (Strafgesetzbuch, StGB)

As mentioned above, the TDG and the MDStV contain rules concerning the liability of the Providers according to the general laws. The German Criminal Code (StGB) is a general law in that sense and does include a number of articles concerning specific contents.^[60] Element of the offence in most of those articles is a so called “Schrift” (writing), which means that the content has to be embodied so that it can be viewed.^[61] The IuKDG that also included the TDG extended that term in art. 11 sec. 3 StGB. According to that, data storage media shall be an equivalent of writings in those provisions that refer to art. 11 sec. 3 StGB. Due to that change of art. 11 sec. 3 StGB, the criminal law can be applied to offline and online communication.^[62]

(1) Art. 130 StGB – Agitation of the People

According to art. 130 sec. 1 StGB whoever, in a manner that is capable of disturbing the public peace: 1) incites hatred against segments of the population or calls for violent or arbitrary measures against them; or 2) assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be punished by imprisonment in between three months and five years.

Art. 130 sec. 2 StGB refers to art. 11 sec. 3 StGB. The covered contents are the incitement of hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs.^[63] It also covers contents that call for violent or arbitrary measures against those groups and such contents that assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population, or of one of the specified groups. In addition art. 130 sec. 2 No. 1 StGB requires the act of disseminating the writing, or data storage media (art. 11 sec. 3 StGB). Other actions listed in art. 130 sec. 2 No. 1 a-d StGB are for example publicly displaying the content, or making it accessible. Art. 130 sec. 3 and 4 StGB extend the covered contents. According to that, whoever denies or renders harmless an act committed under the rule of National Socialism in a manner capable of disturbing the public peace shall be punished (“Auschwitz Lie”). However, in order to meet the constitutional requirements art. 130 sec. 5 refers to art. 86 sec. 3 StGB. Due to that reference art. 130 shall not be applicable, if the act serves to further civil enlightenment, to resist unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events, or similar purposes. However, since art. 130 StGB combines a lot of rather vague terms it is questionable if art. 130 StGB meets the requirements of the German void of vagueness doctrine laid down in art. 103 sec. 2 GG and art. 1 StGB.^[64] The Federal Constitutional Court (“Bundesverfassungsgericht”) pointed out that art. 130 StGB is a general law in the sense of art. 5 sec. 2 GG and therefore constitutional.^[65]

(2) Art. 131 StGB – Glorification of Violence

Another important penal provision that refers to art. 11 sec. 3 StGB is art. 131 StGB. It covers writings, which describe cruel or otherwise inhuman acts of violence against human beings in a manner which expresses a glorification or rendering harmless of such acts of violence or which represents the cruel or inhuman aspects of the event in a manner which violates human dignity. The required acts are the same as in art. 130 sec. 2 StGB. According to art. 131 sec. 3 StGB sec. 1 and 2 shall not apply if the act serves to report about current or historical events. Even though the terms used in art. 131 sec. 1 StGB appear even more vague than the terms used in art. 130 sec. 2 StGB the Federal Constitutional Court came to the conclusion that art. 131 sec. 1 StGB meets the constitutional requirements as long as it is interpreted in a manner that observes those requirements.^[66] The void for vagueness doctrine laid down in Art. 103 sec. 2 GG does not exclude the use of abstract terms.^[67] According to the constitutional interpretation of the provision by the Federal Constitutional Court, the human dignity is violated if the presentation is meant to promote an attitude that denies the fundamental value and respect every human being is entitled to.^[68]

There is also a legal discussion whether art. 131 sec. 1 StGB could be applied to presentations of violence against beings that are only similar to human beings without violating the “prohibition-of-analogy-rule” also derived from art. 103 sec. 2 GG.^[69] According to the Federal Constitutional Court other beings are not covered regarding the wording of art. 131 sec. 1 StGB.^[70] If the legislator wanted the provision to be applied to similar beings as well,^[71] the legislator should have used a different wording.

(3) Art. 184 StGB – Dissemination of Pornographic Writings

Another important, if not the most important penal provision concerning contents on the Internet is art. 184 StGB. According to art. 184 sec. 1 No. 1 StGB it is punishable to make a pornographic writing (art. 11 sec. 3 StGB) accessible to a person under eighteen years of age. There are a lot of other acts listed in art. 184 sec. 1 StGB. However, as far as Internet communication is concerned, making the content accessible to a person under eighteen years of age (art. 184 sec. 1 No. 1 and 2) is the most important act.^[72]

The term pornographic is quite problematic, especially considering the void for vagueness doctrine. The term appears to be just as vague as the former term “indecent writing” which had been changed because of the vagueness problem.^[73] The only way to solve the problem on a constitutional basis is to apply the provision only in “clear” cases that leave no doubt that the information is pornographic.^[74] It seems to be impossible to use a more precise term since the values of society are changing permanently, so that there is even a need to use a rather abstract term in order to meet the practical demands.^[75] According to art. 184 sec. 3 No. 2 StGB in cases of so called hard pornography it is punishable to make the writing accessible to anybody and not only to people under eighteen years of age. Hard Pornography is defined in art. 184 sec. 3 StGB as pornography that contains violence, the sexual abuse of children or sexual acts of human beings with animals.

(4) Other Penal Provisions according to the StGB

There are a number of other penal provisions that apply to Internet Contents. For example the Instruction for Crimes in art. 130 a StGB, the Dissemination of Propaganda for Unconstitutional Organizations in art. 86 StGB, the Incitement to a War of Aggression in art. 80 a StGB and the Disparagement of the State and its Symbols to only mention a few.^[76]

(5) Applicability of the German Penal Code

The fact that the Internet is an international resource leads to the important question under which circumstances the German Penal Code can be applied to Internet Contents. That issue is quite relevant especially for foreign providers, that would have to “keep an eye” on the German Penal Code, if it is applicable to their contents as well.^[77] According to art. 3 StGB the German Penal Code shall apply to acts committed domestically. Art. 9 sec. 1 StGB states that an act is committed at every place at which the result as an element of the offence occurs. It is a matter of controversy whether in cases of so called abstract endangerment offences like the above-mentioned art. 130 StGB the Penal Code can be applied to foreign providers, since there is only an endangerment instead of an actual result required by the provision of art. 9 sec. 1 StGB.^[78] The Federal Court of Justice (“Bundesgerichtshof”, BGH) recently had to deal with that question.^[79] The Court decided that if a foreigner places such contents that violate art. 130 sec. 1 or 3 StGB on a server in another country, however accessible to Internet users in Germany, the German Penal Code applies. The potential to disturb the public peace is a result within the meaning of art. 9 sec. 1 StGB.^[80] Therefore foreign Providers can actually be punished according to German Law.^[81]

dd) The “Gesetz über die Verbreitung jugendgefährdender Schriften und Medieninhalte” (GjSM)

Another law that allows the regulation of contents on the Internet is the Act concerning the dissemination of writings and media contents that are harmful to minors (GjSM). According to art. 1 sec. 1 GjSM writings that may be a moral danger for children or juveniles shall be recorded in a list. Art. 1 sec. 3 sentence 1 GjSM extends the term “writings” so that data storage media is also covered.^[82] Therefore the GjSM is applicable to Internet contents. However, according to art. 1 sec. 3 sentence 2 the GjSM does not apply to broadcasting and Media Services, so that adults still have access to uncensored information.^[83] As examples for contents that are harmful to minors art. 1 sec. 1 sentence 2 GjSM names such writings that are immoral, coarsening in effect, glorifying war, providing incitement to violence, crime or racial hatred. If a writing or another presentation is recorded in the list, the restrictions of art. 3 – 5 GjSM apply. Considering Internet contents, the probably most important restriction is the prohibition of making such listed writings accessible to a child or juvenile, art. 3 sec. 1 No. 1 GjSM. According to art. 1 sec. 2 GjSM a writing shall not be listed if it serves art, science, research or teaching.

Again the void of vagueness doctrine appears to be violated by the terms used in the act. It seems hard to define, under which circumstances a writing is suitable to put children or juveniles in a moral danger. However, the Federal Constitutional Court pointed out that it is not possible to use a more precise and accurate term.^[84] The void of vagueness doctrine is not violated if the term can be interpreted by applying traditional legal methods, which is possible since the examples named in art. 1 sec. 1 sentence 2 GjSM specify the term in a way.^[85]

Subject to the restrictions laid down in art. 3 – 5 are also presentations that contain the contents described in art. 130 sec. 2 or art. 131 of the German Penal Code, pornographic contents, or presentations that are obviously suitable to be a serious moral danger to children or juveniles, art. 6 GjSM. In those cases the restrictions of art. 3 – 5 GjSM apply without recording the writing in the list. According to art. 21 sec. 1 No. 1 and sec. 3 GjSM it is even punishable to make those presentations described in art. 6 GjSM accessible to minors in cases of negligence. The Federal Constitutional Court pointed out that even such presentations (art. 6 GjSM) can be made accessible where it serves art, science, research or teaching (art. 1 sec. 2 No. 2 GjSM).^[86] That is due the fact, that the protection of minors has to be balanced with other constitutional values.

Since it is only prohibited to make those presentations accessible to children or juveniles, it is possible to avoid a violation of the GjSM by using a so called “Adult-Check” that does not allow access to the page as long as the person is not able to proof full legal age which can be done by requiring a personal credit card number.^[87]

[...]

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^[1] Barlow under http://www.eff.org/pub/Publications/John_Perry_Barlow/barlow_0296.declaration (last visited: 4-20-2003).

^[2] Engel, DRiZ 1997, 408, 409.

^[3] Gerhardt, NJW 1975, 375, 375.

^[4] See Engel, DRiZ 1997, 408, 408.

^[5] McGuire, 74 New York Law Review, p. 750, 768 (1999); Engel, DRiZ 1997, 408, 408.

^[6] Walter, Inhaltsregulierung, p. 79.

^[7] Bleisteiner, Verantwortlichkeit, p. 259.

^[8] McGuire, 74 New York Law Review, p. 750, 758 (1999).

^[9] Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104,

§ 502, 110 Stat. 56, 133-35.

^[10] Wöbke, CR 1997, 313, 316; wording printed at Freund, Strafbarkeit, p. 122-125.

^[11] Schröder, Freie Meinungsäußerung, p. 139.

^[12] McGuire, 74 New York Law Review, p. 750, 760 (1999).

^[13] Schröder, Freie Meinungsäußerung, p. 141.

^[14] McGuire, 74 New York Law Review, p. 750, 761 (1999).

^[15] Landier, under http://www.landier.com/michael/essays/censorship/fulltext.htm (last visited: 4-20-2003).

^[16] McGuire, 74 New York Law Review, p. 750, 762 (1999); Barton, Multimedia-Strafrecht, supra note 98.

^[17] Reno v. ACLU, 117 S.Ct. 2329, 2343-2350 (1997); http://www2.epic.org/cda/cda_decision.html (last visited: 4-20-2003).

^[18] Compare United States v. Reese, 92 U.S. 214, 221 (1876).

^[19] Hynes v. Hoffman Estates v. Flipside, 455 U.S. 610, 620 (1976);

Buckley v. Valeo, 424 U.S. 1, U.S. 147, 151 (1959).

^[20] Smith v. California, 361 U.S. 147, 150 seq. (1959); Interstate Circuit v.

Dallas, 390 U.S. 676, 684 (1968); Cramp v. Board of Public Instruction, 368 U.S. 278, 287 seq. (1961).

^[21] Stock, Meinungs- und Pressefreiheit, p. 191.

^[22] Schröder, Freie Meinungsäußerung, p. 144.

^[23] Reno v. ACLU, 117 S.Ct. 2329, 2343-2350 (1997); http://www2.epic.org/org/cda/cda_decision.html, p. 2 (last visited: 4-20-2003).

^[24] Reno v. ACLU, 117 S.Ct. 2329, 2331 (1997); http://www2.epic.org/org/cda/cda_decision.html, p. 3.

^[25] Reno v. ACLU, 117 S.Ct. 2329, 2332 (1997); http://www2.epic.org/org/cda/cda_decision.html, p. 4.

^[26] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1084 (1991).

^[27] 117 S.Ct 554 (1996).

^[28] Wording under http://www.epic.org/free_speech/censorship/final-hr3783.html (last visited: 4-20-2003).

^[29] Walter, Inhaltsregulierung, p. 83.

^[30] http://www.aclu.org/court/acluvrenoII_pi_order.html; ACLU v. Reno II, No. 99-1324; also see Walter, Inhaltsregulierung, p. 84.

^[31] See http://archive.aclu.org/court/acluvrenoII_pi_order.html (last visited: 4-20-2003).

^[32] See ACLU v. Reno II, No. 99 – 1324; CR 2000, 638, 638; also see certiorari of the Supreme Court, Ashcroft v. ACLU, No. 00 – 1293.

^[33] Act Concerning Harassment by Computer and the Possession of Child Pornography, House Bill of the state of Connecticut, No. 6883.

^[34] See Walter, Inhaltsregulierung, p. 87.

^[35] Senate Bill 127 of the state of New Mexico, 1998.

^[36] See Walter, Inhaltsregulierung, p. 88 seq.

^[37] 18 U.S.C. §§ 1464-1465 (criminalizing obscenity);

§ 2251 (criminalizing child pornography).

^[38] See http://www.clearsail.net/about.htm (last visited: 4-20-2003).

^[39] Palko v. Conneticut, 302 U.S. 319, 327 (1937).

^[40] 7 BVerfGE 198, 204 (1958).

^[41] 7 BVerfGE 198, 209 seq. (1958); 97 BVerfGE 125, 146 (1998).

^[42] BK – Degenhart Art. 5 Abs. 1, 2 supra note 78.

^[43] BK – Degenhart Art. 5 Abs. 1, 2 supra note 916; Maunz/Dürig – Herzog Art. 5 Abs. 1, 2 supra note 296; Jarass/Pieroth Art. 5 supra note 52; 33 BVerfGE 52, 72.

^[44] 87 BVerfGE 209, 230 (1992); 47 BVerfGE 198, 236 (1978).

^[45] 30 BVerfGE 173, 191(1971); 67 BVerfGE 213, 228 (1984).

^[46] 30 BVerfGE 173, 193 (1971); 67 BVerfGE 213, 228 (1984).

^[47] 83 BVerfGE 130, 139 seq. (1990).

^[48] For more details see Herzog, Rechtliche Probleme, p. 273-275; Hoffmeister, EuGRZ 2000, 358, 367.

^[49] Ritz, Inhalteverantwortlichkeit, p. 66.

^[50] Fechner, Medienrecht, supra note 965; Mayer, Internet, p. 139; Wimmer/Michael, Online-Provider, p. 19.

^[51] Fechner, Medienrecht, supra note 965; Mayer, Internet, p. 139; also see the summary of Bleisteiner, Verantwortlichkeit, p. 105 seq.

^[52] Fechner, Medienrecht, supra note 984.

^[53] Bleisteiner, Verantwortlichkeit, p. 151; Hoeren MMR 1998, 97, 98.

^[54] Fechner, Medienrecht, supra note 1032.

^[55] Fechner, Medienrecht, supra note 1032.

^[56] See Wimmer/Michael, Online-Provider, p. 27.

^[57] See Wimmer/Michael, Online-Provider, p. 36; Hoeren, Grundzüge, p. 41.

^[58] von Heyl, ZUM 1998, 115, 118 seq.

^[59] von Heyl, ZUM 1998, 115, 119; Mayer, Internet, p. 189.

^[60] See Bleisteiner, Verantwortlichkeit, p. 151; Roßnagel, NVwZ 2000, 622, 626.

^[61] Tröndle/Fischer § 11 supra note 43.

^[62] Barton, Multimedia-Strafrecht, supra note 175; see Jofer, Strafverfolgung, p. 165; Ritz, Inhalteverantwortlichkeit, p. 55; Freund, Strafbarkeit, p. 98; Jofer, Strafverfolgung, p. 165.

^[63] See McGuire, 74 New York Law Review, p. 750, 781 (1999).

^[64] Tröndle/Fischer § 130 supra note 17.

^[65] 90 BVerfGE 241, 251 (1994).

^[66] 87 BVerfGE 209, 227 (1992).

^[67] 87 BVerfGE 209, 223 seq. (1992).

^[68] 87 BVerfGE 209, 228 (1992); OLG Koblenz NStZ 1998, 40, 41.

^[69] See BT-Drs. 10/2546, p. 21, 22; Greger, NStZ 1986, 8, 9; Brockhorst-Reetz, Repressive Maßnahmen, p. 40; Erdemir, Filmzensur, p. 73.

^[70] 87 BVerfGE 209, 225 (1992).

^[71] See BT-Drucks. 10/2546, p. 21, 22.

^[72] Barton, Multimedia-Strafrecht, supra note 205.

^[73] Tröndle/Fischer § 184 supra note 5.

^[74] Schönke/Schröder § 184 supra note 4.

^[75] Erdemir, Filmzensur, p. 154.

^[76] See Ritz, Inhalteverantwortlichkeit, p. 54 footnote 120 for more examples.

^[77] Sieber, NJW 1999, 2065, 2065.

^[78] See for an introduction to the different theories Sieber, NJW 1999, 2065, 2067; also see Endemann, NJW 1966, 2381, 2382; Tiedemann/Kindhäuser, NStZ 1988, 337, 346; Heinrich, GA 1999, 72, 83 seq.; Jofer, Strafverfolgung, p. 105; Barton, Multimedia-Strafrecht, supra note 217.

^[79] 46 BGHSt 212 (2000)

^[80] 46 BGHSt 212, 220 seq. (2000); also see the English Summary of the case under http://www.germany-info.org/relaunch/info/archives/background/bghpress.html (last visited: 4-20-2003).

^[81] See the critical evaluation of Bremer, MMR 2002, 147, 148.

^[82] Barton, Multimedi-Strafrecht, supra note 179; see also BT-Drucks. 13/7385, p. 37.

^[83] Barton, Multimedia-Strafrecht, supra note 181.

^[84] 90 BVerfGE 1, 16 (1994).

^[85] 90 BVerfGE 1, 16 seq. (1994); 83 BVerfGE 130, 145 (1990).

^[86] 83 BVerfGE 130, 143 seq. (1990).

^[87] See Walter, Inhaltsregulierung, p. 64 seq.