Outside German jurisdiction

Saturday, May 6, 2006 at 7:23 | Posted in Bloggers' rights, Blogosphere, Freedom of speech, Germany, Legal | 6 Comments

If you are a German blogger, you would be familiar with the legal term Impressumspflicht. It would translate as flagging obligation. Impressum is a sort of flag you would be obliged to put to your website for legal reasons.

I am not even trying to explain all the legal small print around Impressumspflicht. There is a pretty good explanation (in German) by the German lawyer Marcus Beckmann in the web. Even Mr. Beckmann does not make a very clear statement as to who is and who is not covered by the flagging obligation but he suggests that it is better to be safe than sorry and put up the flag if you want to avoid being sued for failing to flag your site. Among other things, you would have to announce your full name, address (meaning the street and house number, not just a post office box), telephone and fax number (if you have any) and your e-mail address.

The flagging obligation is one more reason why I am happy to say that I am outside any and all German jurisdiction. My real name is no secret and it can easily be found in the web. I just prefer to blog under my nickname because that is the most valuable thing I inherited from my late father.

As long as he was alive, I was commonly called Larko Jr. When he died, I became Larko. Larko is an abbreviation of my family name Larkovirta.

However, the name is not my primary consern about a flagging obligation. I would never and under no circumstances publish my street address in the Web. The closest piece of information to my home address I am willing to put up in the public Web is that I live in a north eastern suburb of Helsinki not far from the city line. There are enough lunatics in this area to assume that at least a small part of them would have read one of my posts. I do not want any of them banging my door.

Marcel Bartels is a law-abiding blogger. He has a proper Impressum in his web site. The last thing Marcel would want is to be sued for such a bagatelle. He is busy responsing to lawsuites for his blog as it is.

Marcel has been sued so frequently these last weeks that I have not even had a chance to study the details of the latest case. But a quick look at it shows that he is being sued for a comment added to one of his posts a couple of months ago. The plaintiff does not seem to have a problem with the comment per se but with a link included to the comment. The plaintiff has sued the target site and now wants to hold Marcel responsible for the contents of the target unless he removes the comment with that link.

So this is how the German justice looks at a blog post. I post something. A reader leaves a comment to my post. The comment includes a link.

I am responsible for what I wrote. Fine, I can live with that. Furthermore, I am legally responsible for the contents of the comment written by somebody else. I do have a problem with that. I would remove the comment if it was obvious that there is something explicitely illegal in it. But if somebody wants to raise an issue of slander, I think they should not sue me but the author of the comment who allegedly commited the slander. If the identity of that person can be established, that is.

But making me legally responsible for the contents behind a hyperlink in my site is just absurd. No matter if I posted the link myself or if it was a part of a reader’s comment, it is absurd to hold me accountable for the contents in somebody else’s site. If I put somebody’s blog into my blog roll, I would have to read every single post in that blog and every single comment added to those posts in order to secure myself that the contents is legal. And I would have to keep track of the blog every single day to check out that no illegal contents would be added to the blog. That is crazy. Nuts!

Now, I am going to do something that I could be prosecuted for in Germany. I am linking to Mein Kampf by Adolf Hitler. I would definitely face criminal charges if I did that in Germany and/or published the link in a German based server.

Does this mean that I endorse the ideas presented in Hitler’s book? Of course it does not. Does this mean that I am participating in spreading those ideas? No, it does not.

Please read my lips: I detest the ideas presented by Hitler in Mein Kampf. Linking to the book does not constitute an endorsement, nor does it make me responsible for the ideas, legally or otherwise. Also, I do not accept responsibility for spreading Hitler’s ideas.

It is a historical fact that Hitler wrote the book and my link does neither increase nor decrease the accessability of the book in the Web. It is there for anybody with a computer connected to the Internet to read no matter whether I link there or not. It took me less than five seconds to find it by googling.

You may ask why I would want to link to Mein Kampf. Well, there could be a number of potential reasons. One of them could be that I wanted to refer to something in the book in the context of a blog post. Placing the link would be for your convenience so that you can easily check out that my quote or reference actually is in the book.

Linking to one’s sources is a courtesy that contributes to the transparency of the Web. Holding the linker responsible for the contents of the target web site is not only stupid. It is a major restriction of the freedom of speech.

And it gets even more stupid. German bloggers can not link to this post because by linking here they would drag upon themselves not only a legal responsibility of what I am writing but also the responsibility of spreading Hitler’s ideas. They link to me, I link to Mein Kampf. Ergo: they are prosecutable for spreading nazi propaganda. That is how the German courts would look at it although one of the points of this post is to oppose, not endorse nazi propaganda.

By the way, I was asked a good month ago in a comment added to this post what I think about the holocaust denial being a prosecutable crime in a number of countries. I promised to deliver an answer later. This is not my definitive word on the subject but I’ll give a short answer here. I am still planning to make a separate post discussing just that issue.

I apologize if this hurts the feelings of a great number of people in Germany, Austria, Israel and elsewhere. I understand that you may be sensitive about it. But my rational opinion is that denial as such, as long as it is not connected to any other illegal activities, should not be punishable.

While there is enough evidence about the holocaust to consider it as a historical fact and enough evidence to justify calling holocaust denial stupid, I do not think that people should be put to jail just for passing stupid statements. How many politicians would not be serving time right now if stupid statements were penalized? If I were to say that the Earth is a flat pancake, it would ruin my credibility but it would not make me a criminal. But just in case somebody is wondering, read my lips again: I am not endorsing holocaust denial and I am not endorsing Hitler’s ideas.

Now, back to Marcel Bartels. As I wrote on Thursday, Marcel was sued by Andreas Kodsi. The main issue the disputed real estate business man was unhappy about was this link in this post. As you can now see, sections of the post are replaced with X’s and the hyperlink no longer appears there. As Marcel explains here, he can not afford a legal battle against a multi millionaire business man, especially so since the German court practices may very well be expected to produce a ruling against him. So he has comitted not to link to the site and exclude and not repeat parts of the disputed post.

Andreas Kodsi recently won a case against Google Germany that would force Google to manually edit all search results on his name. Should this ruling survive in higher courts, Mr Kodsi may have reason to feel like the virtual king of Germany. But he is not the emperor of the Internet.

I am asking all bloggers outside a German jurisdiction to link to http://www.gomopa.net/Finanzforum/Erfahrung-mit/Die-Dienstleister-und-Andreas-Kodsi-und-Immobilien.html under “Andreas Kodsi” and his company “Die Dienstleister”. Hence, Andreas Kodsi and Die Dienstleister. A couple of Estonian bloggers have already joined me in this act of solidarity for the freedom of speech in the Internet.

To my knowledge, Germany is the only country in the EU and the only western democracy to have serious restrictions in the freedom of speech in such an outstanding scale. What is happening in Germany today may very well be happening allover the World unless the blogging community says NO. Andreas Kodsi and his company Die Dienstleiter would have hell of a job in suing millions of bloggers outside German jurisdiction allover the World.

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  1. […] As I explained in this post in context of the suing practices of Andreas Kodsi, the German jurisdiction makes the bloggers responsible also for the web contents that they link to. Just imagine what flood of lawsuites Mr. Mielke could be facing by re-publishing loads of blog posts apparently without reading them. Unlike Sven Scholtz, I am not going to pretend that I would believe Mr. Mielke to be reading a line of what he reproduces. […]

  2. […] German court practices have strangely produced rulings that linking to contents in another web site may bring legal responsibility to the owner of the linking site of what is published on the target site. I wrote a long post about it last week. There is also information about the legal situation in Germany in an earlier post of mine. […]

  3. […] As I have written on several occasions, the absurdity of the German legislation combined to court practices that could best be described as restrictive in view of freedom of speech, you can never feel safe when publishing articles, whether facts or commentaries, about existing persons if you mention them by name. The most notorious court cases involving opinions expressed in the Internet is the 24th Civil Chamber of Landgericht Hamburg, also commonly known as the Dunkelkammer or the Dark Chamber. The chamber is presided by judge Andreas Buske. […]

  4. To my knowledge, Germany is the only country in the EU and the only western democracy to have serious restrictions in the freedom of speech in such an outstanding scale.

    and one would expect that, having experienced the history of under the Nazis, they would be the first to advocate freedom of speech …

    Isn’t there a serious revolt in Germany about this?

  5. You are making interesting points. It is not only the nazi era, East Germany was not exactly a paradise of freedom during the communist rule. I think tere is something deeper than that in the German society that makes it behave so restrictevely. A believe in detailed regulations is rooted in the German bureaucratic tradition beyond communists and nazis. It dates back at least to Bismarck. It is an interesting topic that would deserve to be discussed separately.

    There are those who revolt but so far the establishment has managed to fight back. A blogger was recently jailed in Germany and another critical blogger just closed his blog under his own name in a German server and started to blog anonynously in off shore servers after several costy lawsuits.

  6. […] and desist hunters ready for kick off I wrote in May 2006 about the German rule known as Impressumspflicht which is a legal term defining what […]


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