Translation and Commentary by Christopher Kuner, Esq.
Morrison & Foerster LLP, Brussels
Translation copyright 1996 Christopher Kuner. Reproduction is permitted, provided that this translator's note, including the above copyright notice, is retained in its entirety.
Commentary: The following is a translation of an interview published in German in the online service "SPIEGEL Online" concerning the present legal situation in Germany regarding Internet content regulation. The subject of the interview is perhaps the leading authority in this area in Germany, Prof. Dr. Ulrich Sieber of the University of Würzburg. Prof. Sieber works closely with the German Federal Government on these issues, as well with the G-7, and has defended Compuserve in their dispute with the State Prosecutor in Munich. In a lengthy law review article published in German and referred to in the interview, Prof. Sieber took the position that there is no valid basis in German law for holding an Internet access provider liable for content available on the Internet. Of particular interest is his discussion in the interview of provisions of the German draft "Information and Communications Services Law" which would for the first time explicitly regulate the liability of service providers.
Nulla Poena Sine Lege
Interview with the Criminal Law Professor Dr. Ulrich Sieber
By Lorenz Lorenz-Mayer
SPIEGEL Online: Prof. Sieber, members of the Dutch "Solidarity Group for Political Prisoners" (SPG) have put issue 154 of the magazine Radikal, which is banned in Germany, on the Internet in the Netherlands. Are they, therefore, criminally liable under German law?
Sieber: In my opinion, yes. If the texts made available satisfy the requirements of German criminal law and are made available knowingly by the SPG also in Germany, then the place in which the data was entered is unimportant. For the crimes which the Federal Prosecutor has accused them of, the German criminal law concerning the application of criminal penalties (so-called international criminal law) does, it is true, require a certain effect of the act on German territory under Paragraphs 3 and 9 of the Criminal Code. However, in my view, these requirements are fulfilled if the WWW pages are accessible in Germany and are, in fact, to be accessed here.
SPIEGEL Online: And what concrete consequences does that have? Can the arm of German law extend over the border to our European neighbors?
Sieber: First of all, there is the question of judicial assistance and extradition, which is a very complicated subject. The bases therefore are the European Judicial Assistance Treaty and the European Extradition Treaty, with the appropriate protocols. There is also the Schengen Treaty, with its implementation agreements. Moreover, one would also have to check for the existence of bilateral treaties. As a general principle, however, there are two main problems with regard to international cooperation, even within Europe:
First of all, judicial assistance and extradition in accordance with the treaties named above require that the act be criminally punishable in both countries. Under the Schengen Implementation Treaty, it is true that certain misdemeanors could be sufficient. If distribution of the articles from Radikal constitute neither felonies nor misdemeanors in the Netherlands, then there can be no judicial assistance and no extradition.
Moreover, the Dutch protocol to the European Extradition Treaty excludes citizens of the Netherlands. We do not extradite Germans abroad, and the Dutch do not extradite Dutch citizens. This is a second reason why extradition would not be successful.
SPIEGEL Online: Could the German authorities get their Dutch colleagues, for example, to search the SPG or the provider?
Sieber: Any searches would have to be requested within the framework of judicial assistance; even a search requires that the act constitutes a felony or misdemeanor both under German and Dutch law. This requirement would not be satisfied if the texts in Radikal were not covered by Dutch law regarding crimes or misdemeanors. It would, therefore, be necessary to look more deeply at Dutch criminal law.
SPIEGEL Online: And if the members of the SPG travel to Germany - would they have to count on being arrested here?
Sieber: Yes. If the making available of Radikal falls under German criminal law, since the WWW pages are accessible here, then it would be true that as soon as the responsible members of the SPG would happen to come to Germany, one could go after them.
SPIEGEL Online: What is the situation with the Dutch provider "xs4all", with which the SPG stored its pages, and which, despite all the controversy, intentionally left them there for several weeks on the grounds that such texts are not forbidden in the Netherlands? Do those responsible for "xs4all" also have to count on measures by the German authorities?
Sieber: That is at the moment the most open question. For providers who do not only forward criminally-prohibited materials, but also make them available on their own server for long periods of time, the legal situation is very unclear, no matter whether they are in Germany or abroad. There are good grounds for arguing that they are not criminally liable, but one would have to check this more carefully in each individual case.
SPIEGEL Online: The idea that Felipe Rodriguez, the managing director of "xs4all", comes to give a series of lectures in Germany at the beginning of October and is arrested here, is, therefore, within the realm of possibility?
Sieber: He would have to count on investigative measures, according to statements made up to now by the Federal Prosecutor. An examination of the arrest warrant and any order for investigative detention would, however, have to take into account the principle of reasonableness. However, one cannot now say whether this is sufficient for an arrest, given that the circumstances remain unclear.
SPIEGEL Online: Let us come now to the German Internet service providers. They have been put under considerable pressure by the Federal Prosecutor to block access to Radikal. Are they really in danger of being criminally liable, if they do not give in to this demand?
Sieber: In my view, the situation becomes clearer in this regard: a provider, who only transmits material for which criminal liability exists, and thus only performs a gateway or carrier function, is, based on my view of the law, not criminally liable under German law. It is the same situation with newsgroups. The provider cannot be accused of having actively done something. He does not do anything, but only refrains from blocking access. And if one is to be punished for not doing something, then the requirement therefor is a legal duty of care, as for example parents have with regard to their children or teachers with regard to their students. A legal duty of care also applies for security personnel who have to watch over certain sources of danger. But this type of duty of care is in my view not present for an Internet service provider who only provides access to the use of content, even if he knows what is happening. I have already explained this more fully in an extensive article, which you can find in the Juristenzeitung (issues 9 and 10/1996) and in the Internet. However, this view has not yet been finally affirmed by the courts. Individual prosecutors in Germany could possibly take another view. Then the appropriate court and the Federal Supreme Court would have to decide the matter.
SPIEGEL Online: The Federal Prosecutor takes the position that if one makes a provider aware of criminally-prohibited content, then it also has the duty to block access to this content.
If on the other hand one looks at the Law on Information and Communication Services, which is at present in draft form, and which will be controlling in this area, then it is striking that, in addition to a notice clause, there is also a reasonableness clause. In the reporters' draft of June 28, 1996, the law reads: "Service providers are only responsible for third-party content which they make available for use if they have knowledge of such content and it is possible and reasonable for them to block its use." The commentary thereto is even more explicit. There it reads that the service provider "is responsible if he has individual and concrete knowledge of content and if he is technically able to block access thereto in such a way that usage in his service is not possible." It is further stated that "this does not mean all possible effort, but means that the significance of an individual case and the expense, as well as effects on other parts of the service, have to be seen in relation to each other."
Such considerations, which are taken into account in prospective legislation, seem at the moment not to provide any basis for action by prosecutors. Is this correct?
Sieber: Yes. A draft law is naturally not yet applicable. The reasonableness of an action which is required and the existence of intent are, however, required already by basic principles of criminal law. However, in my opinion, the reasonableness and the knowledge of a provider who exercises the function of a courier or gateway is in no way deciding on this point. Even if he knows of criminally-prohibited conduct and could block it, then one could demand blocking on moral grounds, but could not force it based on criminal law. Article 103 of the German Basic Law guarantees the principle of "nulla poena sine lege" - no sanction without a law. That means that in order to penalize someone, it is not enough that we disprove of his conduct or find it to be really "disgusting". We live in a democratic state under law, in which criminal liability requires a legal basis which has been approved by Parliament; the law contains at the present time simply no duty to act for a service provider. And, in my view, such a duty to act can also not be derived from general principles of law alone.
SPIEGEL Online: Parallels are continually being made between the Internet and the telephone network. It is argued that "xs4all" maintains telephonic nodes itself and that we could at any time directly download the problematic information from the Netherlands. Would the Federal Prosecutor analogously also not have to proceed against the Deutsche Telekom, as he is doing against German Internet service providers, and demand that the Telekom block its telephone connections to ""xs4all" in the same way that it is doing so with the service providers in relation to their web addresses?
Sieber: I assume that telephone companies are not responsible for information transmitted over their lines, just as Internet providers are not, or Lufthansa is not responsible if it transports sex tourists to Thailand. Your case of the Deutsche Telekom, therefore, supports the argument that carriers in the Internet also do not make themselves criminally liable. If one takes this view, then one logically comes to a consistent viewpoint. If, however, one takes the opposite view, then one must ask oneself whether the legal situation is different regarding the telephone, and why it should be different.
Naturally, there are differences; the telephone is more individual communication, and the WWW is more public communication, communication over the telephone is more fleeting, and information or exchange of information in the Web is more material. But the question still arises whether such differences change the legal situation.
If one absolutely wants to make the comparison between the WWW and classic telephone services, then I would not make a comparison to individual communication over the telephone, but instead to public telephone sex services. If one argued for a duty to block by carriers in the Internet, then one would also have to assume a corresponding duty of the Telekom to block certain types of content. In particular, the Telekom would have to prevent children from calling them up, since children are to be protected from soft pornography, which certainly exists in such services, as the Telekom boss, Ron Sommer, knows. He could also not save himself by arguing a lack of intent. One would, therefore, logically also have to proceed against those responsible at the Telekom, just as the Swiss criminal courts have done with their responsible director of the postal services.
SPIEGEL Online: So that means that if one assumes a duty on behalf of Internet service providers, then a duty to block access to such services would also apply to the Deutsche Telekom?
Sieber: Yes, unless one thought up some way to justify this disparity of treatment. But I see no such possibilities.
For this reason, one should refrain from going forward against carriers and gateways, as the new Law on Information and Communication Services expressly provides for. Proceeding against service providers will not only not produce any results, but will only harm Germany as a place to do business.
If one really wants to achieve something, then one has to reach agreement on minimum international standards and enforce them effectively against the authors of criminal statements. Moreover, industry should create a self-control body, such we already have, for example, with regard to the FSK in the film industry or with regard to the Press Council. This problem requires creative solutions, and cannot be solved by simply exerting pressure on providers, who are the most easy to get to.
SPIEGEL Online: Prof. Sieber, we thank you for this interview.