Journal of Law, Information and Science
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DORIS BOZIN*
The explosion of Internet usage has provided users with avenues to purchase products and services, invest monies and explore issues as personal as sexuality, religion and politics. This explosion has been accompanied by many problematic issues, including whether there should be laws restricting freedom of speech on the Internet.
Of course, how a nation views what free speech is, and whether it should be regulated, is determined by the fundamental core values of that society and the political framework in which it works.
Inevitably nations will attempt to apply their existing free speech standards to the Internet through national and international legislative and political initiatives. It is within this context that this article will compare how the United States and Germany have been grappling with this issue.
The analysis will find that both the United States and Germany attempt to restrict speech on the Internet with different levels of effectiveness. More importantly, domestic laws which normally operate within the geographical territory of United States and Germany, may be within the freewheeling world of cyberspace, where there are virtually no geographical limitations.
Finally, the article suggests that the international community will need to take the lead in regulating the Internet, to strike a balance between protecting children accessing online pornography, defamation, encryption and hate speech, and providing legislative relief to injured parties.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.[1]
The famous comment made by Justice Brandeis of the importance of free speech to the American version of democracy, encapsulates the legal, social and political importance placed on the function of free speech within the United States.
It is important for the foundation of any democracy for there to be relatively open public debate on any issue. At the same time, nations, all over the world, including democratic nations, impose a myriad of regulations on free speech, which doesn’t undermine their democratic foundations and institutions. For example, both the Unites States and Germany treat the notion of free speech, by restricting offensive speech, differently.
However, the explosive growth of Internet usage has led to people communicating, accessing, participating and providing information for other users, all over the world. As a result, the problem that is emerging is the applicability of domestic laws say in the United States and Germany, within the freewheeling world of cyberspace, where there are virtually no geographical limitations.
This article examines the development of free speech and restrictions of it, with regard to the domestic laws of the United States and Germany, the impact of the Internet and users on those domestic laws; and how the international community will have to move toward uniform standards.
Any discussion about the notion of free speech in the United States must begin with the First Amendment of the Constitution, which mandates that “Congress shall make no law…abridging the freedom of speech, or of the press”.[2]
However, the First Amendment is not intended to protect all speech. The United States Supreme Court has demarcated speech which is not protected, based on the content of that communication. Specifically the United States Supreme Court has held that the First Amendment will not protect fraud, defamation and obscenity speech. Although the jurisprudential development of obscene speech has shown that only specific obscene speech will be restricted, otherwise the First Amendment will apply to it.
The definition of ‘obscene speech’ was established in Miller v California.[3] The Court held that if it was found by the average person applying contemporary standards to appeal to a prurient interest in sex, depict or describe sexual conduct specifically defined by the applicable state law in a patently offensive manner; and if taken as a whole it lacks any serious literary, artistic, political or redeeming scientific value, then it will be found to be obscene speech.[4]
Further in Chaplinsky v New Hampshire[5] the United States Supreme Court allowed for the criminalisation of speech if it is likely to cause the average the person listening to retaliate violently. This so called ‘fighting words’ doctrine restricts the content of speech if it is likely to incite unrest in the community.
However, recent United States Supreme Court cases have limited such prohibitions to speech that is not only likely to cause unrest in the community, but the content of the speech must also have the purpose of inciting unrest. In Texas v Johnson[6] and United States v Eichmann[7] the Court struck down laws forbidding the burning of a United States flag, holding that while such an act may be offensive to the viewer, it does not constitute incitement to immediate violence or fighting words and therefore cannot be restricted based upon the message expressed.[8] Further, the Court held that the Government’s interest did not justify the intrusion on First Amendments rights of United States citizens.[9]
The United States Supreme Court continued its resistance to obscene speech in RAV v City of St Paul[10] in which it overturned Government law[11] which prohibited, inter alia, burning crosses, displaying other symbols that arouse anger, alarm or resentment in others, as it held it was bound by the doctrine of ‘fighting words’ in Chaplinsky. It held that ‘fighting words’ as a category may be restricted under the Constitution, however, a law, that prohibits only fighting words with a certain content would be unconstitutional, unless the “basis for the content discrimination consists entirely of the very reason the entire class of speech is proscribable”.[12] Thus the doctrine of ‘fighting words’ now is that speech that amounts to direct incitement to immediate breaches of peace may be proscribed, with distinction related to the basis of the speech’s offensiveness.[13]
In the United States the First Amendment and the jurisprudential development of the notion of free speech show a reluctance to restricting placing limitations on speech. It can be best summarised by the following comment: “under our system, there is no such thing as a false idea. All ideas deserve a public forum, and the way to combat anti-democratic ideas is through counter-expression. When all ideas are voiced freely, we have the greatest chance of obtaining the right results”.[14]
The German Constitution provides for the freedom of expression. Article 5 of the German Basic law provides that ‘everyone has a right to freely express his opinion in word, writing and image.’[15] However, there are also limitations on this freedom of expression based on the protection of minors and personal honour.[16]
Article 5 of the German Basic Law, provides for the legislature to prescribe laws restricting free speech as long as it is not protected by the Constitution and it provides certain State interests may take that precedence over the right to freedom of expression. As a result, speech can be restricted by the German legislature either because it is outside the Constitution or because it implicates one of the interests given precedence by the Constitution itself.[17]
In effect this allows the German Government to restrict speech that is factually or evidently known to be untrue. The Federal Constitutional Court expressed the reasoning behind this approach as follows:
“It is the purpose of expressions of opinion to convey an intellectual effect on one’s surroundings and to convince others and contribute to the formation of opinion. Value judgments are accordingly protected without its depending upon whether the expression is valuable or worthless, true or false, emotional or rational. Factual claims are also protected by the fundamental right to express an opinion to the extent that they are the basis for the formation of opinions. Only a consciously untrue factual claim falls outside the zone of protection of the fundamental right, as it cannot contribute to the constitutionally contemplated formation of opinion.”[18]
In this case, German judiciary thought that excluding untrue factual claims from Constitutional protection, does not impinge on individual freedoms and the democratic process. In fact, the Court is of the view that removing it, improves the level of discourse and reduces the risk of the community being misled by false factual claims.[19]
In the Luth[20] decision, the Federal Constitutional Court held that in determining whether speech is constitutionally protected it is up to the Court to apply the principle of “weighing of rights”. However, the general principle provides that a person’s freedom of expression must yield when another person’s protected interests of a higher priority would be harmed by such express. For instance, freedom of expression must yield when the expression would impinge on human dignity or when the expression takes the form of ‘abusive speech’.[21]
In 1994 the German legislature amended the Criminal Code further restricting speech by forbidding speech denying that the Holocaust occurred. Section 130 of the Criminal Code provides for imprisonment for up to five years for anyone who “publicly or before a gathering endorses, denies or portrays as harmless an act [of genocide] committed under the rule of National Socialism in such a way that is suited to cause a breach of the peace.”[22] This law has come under criticism from politicians and commentators on both constitutional and political grounds.[23]
The United States Constitution protects essentially all types of speech and any restriction must be justified on the basis of State interests. This approach has been applied by the United States Supreme Court in Texas v Johnson, United States v Eichmann and RAV v City of St Paul.
In sharp contrast, the German approach is to regulate and shield the public from counterproductive speech and false factual claims that only mislead the public. This approach is not unconstitutional and is seen as enhancing the democratic processes within Germany.
Cyberspace is a separate place which cannot be tied to any geographical location, with users being active and passive travellers through the world of the Internet.[24] In effect, people can interact with others by accessing, participating, and providing information for other users all over the world. As a result, the only borders in cyberspace are defined by passwords, firewalls and screens, which are regulated by corporations and Governments.
However, Governments are intent upon preserving what they perceive to be within the perimeters of their national interests and they seek to regulate the Internet for this very reason. It is not surprising then, that national Governments may attempt to regulate certain forms of free speech via the Internet, because the content is considered reprehensible or offensive to national well-being or civic virtue of that society.[25]
Therein lies the difficulty. If national Governments attempt to regulate the Internet, the traditional legal paradigm which provides that Governments have jurisdiction over the citizen of their country is brought into question.[26] How can the German Government prevent an American citizen or even a German citizen living in the United States from accessing, participating and providing information to others that is obscene?
The United States Courts have already grappled with some of the jurisdictional issues emerging from these problems and others in cyberspace. Even though the following examples are in a commercial context, they provide some insight into emerging jurisdictional issues, that could also be relevant for nations attempting to regulate free speech over the Internet.
In Minnesota v Granite Gate Resorts[27], Inc, a Minnesota state Court held that it had personal jurisdiction over a defendant, who was a Nevada corporation that was running a gambling service over the Internet, whereby users could register with the defendant, pay a fee and deposit money into an account and place bets through the defendant’s service. While in Playboy Enterprises, Inc v Chuckleberry[28] the defendant, a resident in Italy had established a web site on a server in Italy bearing the name, “Playmen” featuring sexually explicitly photographs of women, with payment of fee and registration of the user required. The Court held that the defendant was in breach of copyright, passing-off and trade mark breaches as it had sought out customers in the United States as it required customers to register and receive a password. The Court held that the Italian site must either be shut down or prevent US users from accessing that site. The Court came to a different view in Bensusan Restaurant Corp v King[29] where the owner of the night club called the “Blue Note”, Columbia, Missouri was sued for infringement by the owner of the “Blue Note” jazz club in New York. The defendant maintained a website to promote his club and it was available to Net users around the world. The Court held that it did not have personal jurisdiction over the defendant as the alleged infringement occurred in Missouri. The reasoning behind this conclusion was that it was just a website providing information, it did not require the user to participate in the website by registering on the site or providing money.
The United States Courts have attempted to grapple with some of the jurisdictional issues arising out of the use of the Internet. The case law shows that the Court will hold that it has personal jurisdiction over the defendant where a website is active, ie where the website requires you to register, pay money, receive a password etc. However where a website is only providing information, then the Court will not have personal jurisdiction over the defendant.
Even though the German Courts may not have dealt with personal jurisdictional issues of the Internet in the same way as the United States Courts have, a recent Court decision and activities by a range of German authorities leave no doubt that Germany intends to apply its existing speech restrictions on the Internet.
Recently the Bundesgerichtshof Court in Germany issued a ruling that German law applies even to foreigners who post content on the Internet in other countries – so long as that content can be accessed by people inside Germany.[30] Specifically the German Court found Frederick Toben guilty of spreading “Auschwitz lies”, over the Internet. Toben who was born in Germany, resides in Australia and uses the website of his Australian-based Institute to encourage people in the belief that the Holocaust has no historical basis.[31] The Court found that sweeping German legislation passed after World War II that banned the Nazi Party and any glorification of it – including denial of the Holocaust can be applied to Internet content that originates outside the country’s borders.
Additionally in the Munich state of Germany, prosecutors have been investigating allegations that Yahoo Deutschland have sold copies of Mein Kampf to German citizens and foreigners.[32] As the German Government places severe restrictions on the sale of the book and other material that falls under the rubric of ‘hate literature’, if it is found that Yahoo Deutschland has sold copies of Mein Kampf, then prosecution will take place.[33]
Both the United States and Germany allow the traditional legal paradigms which provides Governments with jurisdiction over their citizens to be extrapolated to apply to citizens of other countries. For instance how is a United States Court going to ensure that a Italian website is shut down, or, how is a German Court going to charge Toben, who resides in Australia (unless he is extradited to Germany)? These are only some of the jurisdictional issues that Courts around the world will have to grapple with.
In 1996, the Communications Decency Act of 1996 (CDA Act) amended Chapter 5 of Title 47, which regulates common carriers of communications through wire or radio. The list of prohibited interstate communications now included “indecent” and “patently offensive,” Internet communications knowingly made accessible to minors.[34]
On the commencement of the CDA Act various businesses, libraries, non-commercial, and not-for profit organisations, educational societies and consortia, all in some way associated with groups that publish materials on the Internet, challenged the constitutionality of portions of the CDA Act.[36] In ACLU v Reno the United States Supreme Court held that the terms “indecent” and “patently offensive” were unconstitutionally vague and that the CDA Act was too broad in its regulatory scope. In effect the Court held that the CDA Act was an unconstitutional abridgement of free speech and therefore constitutional.
When the United States Supreme Court held that the CDA Act was an unconstitutional abridgment of free speech, Congress made another attempt at regulating Internet content with the Child Online Protection Act (COPA Act).
The COPA Act attempted to address the problem of children’s inadvertent access to sexually-explicit material on the Internet, rather than to material which was deliberately accessed.[37] The COPA Act prohibited “the knowing communication for commercial purposes of any material that is harmful to minors”.[38]
However, ACLU v Reno II[39] again challenged the validity of the COPA Act. The plaintiffs attacked the COPA Act on the basis that it placed an unconstitutional burden on adults, for protected speech, for violating First Amendment rights of minors, and for being unconstitutionally vague and in violation of First and Fifth Amendments.[40] The Court held that even in light of compelling Governmental interest to protect children from viewing sexually explicit materials, the language in the COPA Act was not sufficiently narrowly tailored and that the penalties imposed by the COPA Act were excessive.[41]
The United States Courts have sent a powerful message to Congress, in light of Reno I and Reno II and that is that, the First Amendment freedoms are fundamental, no matter how worthy the cause underlying such legislation.[42] In the Courts obiter dicta, it held that it would be willing to consider “blocking or filtering software” as the level of First Amendment intrusion it would be willing to accept.
While both the CDA Act and the COPA Act failed for encroaching upon constitutionally-guaranteed freedoms, the Children's Online Privacy Protection Act 1998 came into effect to promulgate rules concerning the collection and use of personal information of children on the Internet.[43] However, the legislation provides for the Federal Trade Commission to provide regulations that regulate the activities of operators whose websites are directed at children. The Federal Trade Commission regulations do not address children’s access to sexually-explicit websites.
Over the last number of years the German Government, Courts and prosecutors have shown that they will apply their existing speech restrictions to the Internet.[44] Legislation has been passed which is specific to regulating the Internet, politicians have also called for national and international regulatory schemes to regulate illegal content, Courts have applied German law to foreigners and prosecutors have investigated and filed charges against users for transmitting or accessing content that is illegal under German law.
The Information and Communications Services Act 1997(IFS Act) holds Internet service providers and users liable for illegal content in two situations – where the accessor or service provider is the source of the content; or when the service provider is not the source of the content but knows that the content is available through its service and it is technologically possible to restrict access to the content.[45] The Act also provides that German Constitutional speech restrictions apply to the Internet.[46]
The State Treaty creates unified Internet regulations in all States in Germany. This agreement was signed by the States in 1997, and includes identical rules governing the legal liability of service and access providers under the IFS Act.[47] The State agreement explicitly applies existing limits on free speech on the Internet, including laws to protect personal honour, laws against racist speech, and proscribes Internet content that promotes hatred of racial or ethic groups. Finally it provides for States to forbid illegal content and have it removed from the Internet.[48]
The Federal German law and the State Treaty demonstrate the determination of Federal and State Governments to restrict traditional free speech on the Internet, without any constitutional impediment.
Further the Courts, as has already been highlighted, have shown that they will apply their existing speech restrictions to the Internet. For instance in the CompuServe case, the Director of CompuServe, Felix Sommes, an Internet service provider, (for distributing child pornography on the Internet) was charged and found guilty of failing to prevent criminal activity over the Internet.[49] While an Internet user, Angela Marquardt was charged with, inter alia, abetting the direction of criminal act by providing a link on her homepage to a Dutch online magazine that contained the allegedly illegal information, an article called, “A Small Guide to Hindrance of all Types of Train Transports” which dealt with plans to sabotage German railways.[50]
It is obvious that whether nations attempt to regulate the Internet, in this case free speech, will be dependent on the fundamental historical core values of that society and the political framework in which it works.
The United States First Amendment and interpretation by the United States Supreme Court has meant that there is a reluctance to regulate any speech. However, when the American legislature attempts to regulate the Internet to provide protection to children accessing online pornography, even then the importance of the First Amendment is paramount. Yet the United States Government and Courts have attempted to regulate the Internet, when it is in their national interest.
Likewise, Germany has attempted to regulate the Internet when it is in their national interest. The difference for Germany is that the German Basic Law allows the legislature to proscribe laws restricting free speech as long as it is not protected by the Constitution and it provides for certain State interests. This is why Germany can have legislation such as the ICS Act and the State Treaty which restrict free speech. Further Germany’s fundamental core values and political framework allow for freedom of speech restrictions without, what they perceive, as any detrimental effect to their democracy.
The way for nations to move forward if they want certain types of free speech to be restricted, is to develop international standards. This may not necessarily mean that nations will ever be able to agree on whether obscene or hate speech should be restricted. However, obscene content which is pornographic and available to children, is something that nations can reach agreement on.
Already the European Union has produced an enormous amount of reports and studies relating to “Illegal and Harmful Content”. The recommendations of those reports have been supported by the United Nations, other international organisations and nations. The most important of those being the “Green Paper” study which considered what content should be considered illegal on the Internet, with expanded police and judicial cooperation and international cooperation.[51]
The Internet has provided many people with access to a new world – cyberspace. Whether there should be restrictions on this new world of cyberspace, in particular, free speech, will need to be determined on an international level by national Governments. Otherwise the emerging difficulties, show that active and passive users of the Internet may be violating a country’s laws, without even being aware of it.
Black James J, ‘Free Speech and the Internet: The Inevitable Move Towards Government Regulation’, in the Richmond Journal of Law and Technology, Volume IV, Issue 2, 1997, pages1-13.
Bricker Abbigale E, ‘You Can’t Always Get What You Want: Government’s Good Intentions v The First Amendment’s Prescribed Freedoms in Protecting Children From Sexually Explicit Material’, in the Richmond Journal of Law and Technology, Volume VI, Issue 3, 1999-2000, pages 1-20.
Johnson David R, Taking Cyberspace Seriously – ‘Dealing with Obnoxious Messages on the Net’, 48, Stanley Law Review, 1367 (1996).
Mayar-Schonberger Victor and Foster Teree E, ‘A Regulatory Web: Free Speech and the Global Information Infrastructure’, Michigan Telecommunications, Technology Law Review, 45 (1997).
Mari J Matsuda, Et Al, Words that Wound: Critical Race Theory, Assaultive, Speech and the First Amendment, Westview Press, 1993.
* Senior Deputy-Registrar, ACT MagistrateR[1]s Court, Part-Time Lecturer in E-Business Law, University of Canberra.
[1] Whitney v California (US) 274, 357 (1927). Comment made by Justice Brandeis. http://laws.findlaw.com visited 18 December 2000
[2] United States Constitution, Amendment 1,http://www.findworld.com/data/Constitution/amendments.html
visited 18 December 2000.
[3] Miller v California (US) 413, 15 (1973), http://laws.findlaw.com visited 18 December 2000
[4] Bricker A, ‘You Can’t Always Get What You Want: Government’s Good Intentions v The First Amendment’s Prescribed Freedoms in Protecting Children From Sexually Explicit Material’, in The Richmond Journal of Law and Technology, Volume VI, Issue 3, 1999-2000, pages 1-20.
[5] Chaplinsky v New Hampshire (US) 315, 568, http://laws.findlaw.com visited 18 December 2000.
[6] Texas v Johnson (US) 491, 407, http://laws.findlaw.com visited 18 December 2000.
[7] United States v Eichman (US) 496, 315, http://laws.findlaw.com visited 18 December 2000.
[8] Black J, ‘Free Speech and the Internet: The Inevitable Move Towards Government Regulation’, in the Richmond Journal of Law and Technology, Volume IV, Issue 2, 1997.
[9] Ibid.
[10] RAV v City of St Paul (US), 404, 377, (1992), http://laws.findlaw.com visited 18 December 2000.
[11] Legislative Code 292.02 (1990), which said “whoever places on public or private property a symbol, object, appellation, characterisation or graffiti, including, but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others, on the basis of race, colour, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanour”.
[12] RAV v City of St Paul (US), 404, 377, (1992), http://laws.findlaw.com visited 18 December 2000.
[13] Op cit, no. 8.
[14] Mari J Matsuda, Et Al, Words that Wound: Critical Race Theory, Assaultive, Speech and the First Amendment, Westview Press, 1993.
[15] Art 5(1) German Basic Law, GG http://laws.findlaw.com visited 18 December 2000.
[16] Art 5(2) German Basic Law, GG http://laws.findlaw.com visited 18 December 2000.
[17] Op cit, no. 8.
[18] Ruling of Jan, 1994, NJW, 1994, 1781, Dieter Grimm, Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts, NJW, 1995, http://www.kuner.com/data/reg/ visited 26 December 2000.
[19] Op cit no. 8
[20] Ruling of Jan 15, 1958, NJW, 257, http://www.kuner.com/data/reg/ visited 26 December 2000.
[21] Op cit no. 8 The definition of ‘abusive speech’ in this case has been defined as speech that is intended to attack the person.
[22] See NJW – COR Online ComputerReport 130, February 1996, http://www.beck.de/njw-cor/, visited 26 December 2000. Anti-Semitic speech and some denials of Holocaust ie simple Auschwitz lie, were punishable under German Criminal Code previously, however the amendment provided for criminal sanctions.
[23] See Der Spiegel, Willkommen beim Spiegel-Archiv, (November 1996) http://www.spiegel.de/archiv/ visited 26 December 2000.
[24] Johnson, D, ‘Taking Cyberspace Seriously – Dealing with Obnoxious Messages on the Net”, 48, Stanley Law Review, 1367 (1996).
[25] Mayar-Schonberger V and Foster T E, ‘A Regulatory Web: Free Speech and the Global Information Infrastructure’, Michigan Telecommunications, Technology Law Review, 45 (1997).
[26] Op cit, no. 8.
[27] Minnesota v Granite Gate Resorts, Inc, 568, N W 2d, 715, (Minn Ct App 1997) http://www.state.mn.us/ebranch/ag/memo.txt. visited 20 December 2000.
[28] Playboy Enterprises, Inc, v Chuckleberry, 939 F Supp 1032, 1996, http://laws.findlaw.com visited 18 December 2000.
[29] Bensusan Restaurant Corp v King, 937, F Supp 295, 1996, http://laws.findlaw.com visited 18 December 2000
[30] Kettmann S, ‘German Hate Law: No Denying It”, Wired News, 15 December 2000, http://www.wired.com/news/politics/ visited 20 December 2000.
[31] Ibid.
[32] Kettmann S, ‘Germany’s Kampf Furor Renews”, Wired News, 1 December 2000, http://www.wired.com/news/politics/ visited 20 December 2000.
[33] Ibid.
[34] 47, USC 223(a)(1)(B)(ii).
[35] 929, F Supp 824 (ED 1996) [hereinafter called Reno 1].
[36] Op cit, no. 4
[37] Ibid.
[38] Ibid.
[39] ACLU v Reno II, 31, F Suppp2d 473, 476, 1999
[40] Op cit, no.38.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Gestez zur Regelung der Rahmendbedingungen fur Informations – und Kommunikationsdienste, BGBI IS 1870, Art 5, http://wwwiid.de/rahmen/iukdgk.html visited 20 December 2000.
[46] Ibid.
[47] Op cit, no.8.
[48] Ibid.
[49] CompuServe case, http://laws.findlaw.com visited 18 December 2000.
[50] NJW-CoR Online ComputerReport 182 (March 1997) http://www.beck.de/njw-cor/ visited 20 December 2000.
[51]/ Op cit. no.8.
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