Wie geht’s, Deutschland?

20 Sep 13 | News and features

(Photo illustration: Shutterstock)

(Photo illustration: Shutterstock)

Freedom of expression is protected by the German Constitution and basic laws. There is room for improvement, with Germany’s hate speech and libel laws being particularly severe.

Germany’s biggest limits on freedom of expression are due to its strict hate speech legislation which criminalises incitement to violence or hatred. Germany has particularly strict laws on the promotion or glorification of Nazism, or Holocaust denial with paragraph 130(3) of the German Criminal Code stipulating that those who ‘publicly or in an assembly approve, deny, or trivialise’ the Holocaust are liable to up to five years in prison or a fine. Hate speech also extends to insulting segments of the population or a national, racial or religious group, or one characterised by its ethnic customs.

Germany still has strict provisions in the criminal code providing penalties for defamation of the President, insulting the Federal Republic, its states, the flag, and the national anthem. However, in 2000, the Federal Constitutional Court stated that even harsh political criticism, however unjust, does not constitute insulting the Republic.

Freedom of religious expression is compromised through anti-blasphemy laws criminalising ‘offences related to religion and ideology’. Paragraph 166 of the Criminal Code prohibits defamation against ‘a church or other religious or ideological association within Germany, or their institutions or customs’. While very few people (just 10) have been convicted under the blasphemy legislation since 1969, the impact of hate speech legislation is seen more frequently, in particular in the prosecution of religious offences. In 2006, a pensioner in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing ‘The Koran, the Holy Koran’ on toilet paper, and sending it to 22 Mosques and Muslim community centres. In 2011, nine of the 18 operators of the far right online radio programme ‘Resistance Radio’ were given between 21 months and three years in prison for inciting hatred.

Germany has also seen heated debate over a widespread ban on religious symbols in public workplaces, especially affecting Muslim women who wear headscarves.

Half of Germany’s 16 states have, to various extents, banned teachers and civil servants from wearing religious symbols at work. Yet this is not applied equally to all religions; five states have made exceptions for Christian religious symbols.

Media freedom

Government and political interference in the media sector continues to raise concerns for media independence, with several incidents of interventions by politicians attempting to influence editorial policy.  In 2009, chief editor of public service broadcaster ZDF, Nikolaus Brender saw his contract terminated by a board featuring several politicians from the ruling Christian Democratic Union. Reporters Without Borders labelled it a ‘blatant violation of the principle of independence of public broadcasters.’ In 2011, the editor of Bild, the country’s biggest newspaper, received a voicemail message from President Christian Wulff, who threatened ‘war’ on the tabloid which reported on unusual personal loan he received.

Media plurality is strong among regional newspapers though due to financial pressure, media plurality declined in 2009 and 2010. Germany has one of the most concentrated TV markets in Europe, with 82% of total TV advertising spend shared among just two main TV stations in Germany. This gives a significant amount of influence to just 2 broadcasters and the majority of Germans still receive their daily news from the television.

The legal framework for the media is generally positive with accessible public interest defences for journalists in the law of privacy and defamation. However, Germany still has criminal provisions in its defamation law, which although unused, remain in the penal code. Germany’s civil defamation law is medium to low cost in comparison with other European jurisdictions, places the burden of proof on the claimant (a protection to freedom of expression) and contains a responsible journalism defence, although not a broader public interest defence.

Digital

The digital sphere in Germany has remained relatively free with judicial oversight over content takedown, protections for online privacy and a high level of internet penetration (83% of Germans are online). Germany’s Federal Court of Justice has ruled that access to the internet is a basic right in modern society. Section 184b of the German Penal Code ‘states that it is a criminal offense to disseminate, publicly display, present or otherwise make accessible any pornographic material showing sexual activities performed by, on or in the presence of a child.’ Germany has also ratified and put into the law the Council of Europe’s Convention on Cyber Crimes from 2001. Mobile operators also signed up to a Code of Conduct in 2005, which includes a commitment to a dual system of identification and authentication to protect children from harmful content. This was reaffirmed and made binding in 2007.

There are concerns over the increased use of surveillance of online communications, especially since a new antiterrorism law took effect in 2009.

In 2011, German authorities acquired the license for a type of spyware called FinSpy, produced by the British Gamma Group. This spyware can bypass anti-virus software and can extract data from the device it is targeting. Two reports by the German Parliamentary Control Panel, from 2009 and 2010, stated that several German intelligence units had monitored emails with the amount of surveillance increasing from 7 million pieces items in 2009 to 37 million in 2010. However, Germany’s Constitutional Court ruled in February that intelligence agencies are only allowed to collect data secretly from suspects’ computers if there is evidence that human lives or state property are in danger and the authorities must get a court order before they secretly upload spyware to a suspect’s computer.

Germany’s tough hate speech legislation also chills free speech online. In January 2012, Twitter adopted a new global policy allowing the company to delete tweets if countries request it, meaning that tweets become subject to Germany’s hate speech laws. The latest Twitter transparency report states that German government agencies asked for just 2 items to be removed. In October 2012, Twitter also blocked the account of a far-right group, Better Hannover, after a police investigation.

Artistic freedom

Artists can work relatively freely in Germany. Freedom of expression in arts is protected under the Constitution, and is largely respected, especially for satire or comedy. Yet, the freedom of expression of artists is chilled through strict hate speech and blasphemy laws.

The German authorities very rarely use blasphemy laws against artists. However, there have been several examples of art being subjected to censorship due to religious offence. In 2012, at the exhibition ‘Caricatura VI – The Comic Art – analog, digital, international’ in Kassel, a cartoon created by cartoonist Mario Lars was removed after protests that it offended religious sensibilities.

There is persistent sensitivity around artistic works depicting the Nazi period. In April 2013, the German version of an Icelandic author’s book was ‘censored’ by its publisher, who cut 30 chapters from Hallgrímur Helga’s novel, ‘The woman at 1000°’. Key passages about Hitler, concentration camps and SS were censored to fit the German market.

Europe divided over mass surveillance?

22 Jul 13 | Comment, Digital Freedom, Europe and Central Asia, News and features, United Kingdom, United States

There have been some sharply contrasting political reactions to the US and UK’s mass surveillance programmes in European countries in recent days. Could the US perhaps play divide and rule in managing the fallout from Snowden’s revelations in Europe? Or is there enough common ground between German, UK or even Russian politicians to push for real changes in US (and UK and French) snooping?

(Photo: Gonçalo Silva / Demotix)

(Photo: Gonçalo Silva / Demotix)

At first glance, it seems the issue is being damped down in the UK in contrast to angry and sustained political debate in Germany, and a more nationalist and opportunistic response by Russian politicians.

Last week British MPs on parliament’s intelligence and security committee confirmed that GCHQ, the UK’s signals intelligence HQ, had indeed obtained intelligence from the US Prism programme. But they concluded, remarkably quickly (no long investigation here), that allegations of law-breaking were “unfounded”. Whether the MPs are right or not, their report in fact only concerns part of Prism – the ‘content’ data GCHQ accessed and not the reams of metadata which can be equally or more revealing about individuals’ activities; and it doesn’t touch at all on the so-called Tempora programme by which, according to Snowden, the UK has been accessing massive amounts of data, by tapping into underwater cables, on a scale that goes beyond even US activities.

Meanwhile in Berlin last week, German politicians on the Bundestag’s control committee – were demanding answers on the NSA revelations from interior minister Hans-Peter Friedrich, who admitted he was still trying to get enough information out of the US on the reach of American surveillance. The following day, German journalists grilled Chancellor Angela Merkel’s spokesman for an hour and half about what the German government and security services already knew about US snooping, and how they will stop it.

Merkel has called on Obama to respect German laws though adding, rather curiously, “on German territory” – snooping on Germans on servers in the US or as their communications pass through underwater cables are side-lined by this emphasis. Merkel is also pushing for action at EU level, promising she will demand much tougher EU data protection laws – due to be agreed in the coming months. Germany’s political response seems in a much higher gear than in the UK.

Over in Moscow, some Russian MPs too are emphasising safeguards to protect personal data from US snooping. But with demands for big companies like Google and Facebook to respect Russian laws and pass on user data when requested (just as they have been in the US), this is not a sudden shift to political support for digital freedom in Russia. It is simple political opportunism taking full advantage of the NSA’s activities and revelations to reinforce Russia’s determined attempts domestically and internationally to control, monitor and impede a free and open internet.

But German, British or EU criticism of Russia’s attacks on digital freedom will be ignored and labelled hypocritical unless there is a much stronger condemnation of mass surveillance from European leaders and action to limit future abuses. Nor is this simply about whether intelligence services are operating within the law (and whose laws) important though that is. It is about ensuring laws do not allow the sort of mass surveillance domestically and internationally that the NSA, GCHQ – and it would seem France too – have been carrying out.

Here the report from the MPs on the British intelligence and security committee potentially opens up a vital debate. Incautious language, the MPs say that existing legislation is “expressed in general terms” and that GCHQ itself was right to put more detailed practices into place to ensure compliance with UK human rights law.  Crucially, though a studied understatement, they say that the “complex interaction” between UK human rights laws and security laws needs further consideration – and commit the security committee to investigate further.

So more digging will happen in the UK, in Germany – and too at EU level thanks to the efforts of the European Parliament.

But the UK is clearly as complicit as the US in mass surveillance. And there is growing and sharper questioning in Germany of how much the government and the security services previously knew about US and UK snooping.

So where new revelations and investigations will take European countries in the coming weeks is an open question. And whether we will see a united defence of digital freedom in Europe and an end to mass surveillance is at best unclear for now and, more probably, highly unlikely.

Kirsty Hughes is the CEO of Index on Censorship. She tweets @Kirsty_Index

Merkel and the Vatican

03 Feb 09 | Uncategorized

Chancellor Angela Merkel has got herself involved in Vatican politics, which, if nothing else, makes a change from the Vatican sticking its nose in to everyone else’s internal politics.

Speaking about Pope Benedict XVI’s decision to readmit members of the ultra-traditionalist Society of Pius X into the Vatican fold, in spite of some members’, well, interesting historical viewpoints, Merkel has demanded clarification of the Vatican’s position on Holocaust deniers in its ranks:

‘This is not just a matter, in my opinion, for the Christian, Catholic and Jewish communities in Germany but the Pope and the Vatican should clarify unambiguously that there can be no denial,’ said the Chancellor.

The problem is that really, it is just a matter for the Vatican. If Richard Williamson and the rest of the Lefebvre-ists had been excommunicated because of their tolerance of Holocaust denial, then one could feasibly criticise Benedict from readmitting them without them having purged their ranks of this great sin. But they were excommunicated for their objections to various policies emerging from the Second Vatican Council, such as ecumenicism and the abandonment of the Latin mass. If the Pope has reached some sort of resolution with them over these issues, then he has every right, by the internal logic of the church over which he has absolute dominion, to readmit them.

If you’re interested in this sort of thing, you can hear Richard Williamson’s views on the Holocaust here.

If you’re interested in how conspiracist phenomena overlap, you can hear Williamson explaining that 9/11 was an inside job here.

(Warning: may be upsetting for fans of rational argument and George Orwell).