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Bloggers – enemies of the State? (Part One)

TOC’s Chief Editor, Andrew Loh, is currently in Berlin, Germany, for the International Bloggers’ Tour. 15 political bloggers were invited by the German government to attend the tour, which includes meeting with various German blogging practitioners, lawyers and experts in various fields. The 15 socio-political bloggers are an eclectic mix – from countries such as Ghana, China, Bahrain, Nigeria, Switzerland, Azerbaijan, Egypt, Costa Rica, Saudi Arabia and the Czech Republic, among others. This is the first time that such a gathering is being organised by the German government.

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“The press is called upon to contribute to the creation of a public opinion which in return is enabled to execute its democratic rights in an informed and responsible manner,” says Jan Monikes, an expert on media law in Germany who has acted as an advisor to the German Federal government. He currently runs a consultancy firm advising various corporations and non-governmental organizations.

Monikes was addressing 15 international political bloggers, including this writer, who have been invited by the German government to Berlin on a 10-day “bloggers tour”. The meeting is to allow the bloggers to understand where Germany stands in terms of New Media, particularly with respect to political bloggers in the sphere of (citizen) journalism.

“Press rights are protected and censorship is prohibited by virtue of Article 5, para 1 of the Grundgesetz (or Basic Law) – the “Freedom of the Press”, Monikes explains. Specifically, Article 5 of the law says:

“Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.”

If you are wondering why protection of the press and its freedom in Germany are so explicitly enshrined in law, Monikes gives an answer: the press has a central role in Germany because of the country’s past with Hitler and Nazism. Primarily, guaranteeing the press’s independence enables it to be a check on the excesses of government. In short, it is democracy at its most fundamental level where the power lies with the people.

In Germany, one does not need approval from the authorities to run a newspaper or even to start a publishing company in the country.

This is all well and good, you might say. But New Media is presenting a new challenge to the authorities which, as Monikes explains, is trying to grapple with this new beast. One of the problems which the authorities face is applying the existing legislation – which was created for the mainstream printed press and the broadcast media -  to new areas such as the Internet and in particular, blogging.

It is not a simple thing to do. Indeed, the German government, perhaps still mindful of the nation’s historical past, seems to be keen to rein in netizens (including bloggers) who go to extremes in expressing their views. Monikes himself admits to being “one of these lawyers” who will go after such netizens, although he does not work for the authorities but would represent aggrieved private individuals or organizations.

There are several things which are clearly out-of-bounds (OB) in Germany and are explicitly laid down in law. One of these is that no one is allowed to deride or denigrate the Federal President. The reason is that the President is just a symbol of the nation and has virtually no power. Thus, like the national flag, one is expected to show utmost respect for him.

Another OB issue is the Holocaust. No one is allowed to deny that it took place. This law, in the German Penal Code, was instituted in 1950, after the Second World War. The penalty for anyone flouting this includes a jail term and a fine. He can also be declared persona non grata and thus be barred from entering the country. “Furthermore, a German arrest warrant based on the offence of Holocaust denial is deemed executable in many European Union states,” Monikes says. Thus, anyone who denies that the Holocaust had taken place could be arrested if he entered any EU states and be extradited to Germany to face charges. If found guilty, sentences include a jail term of up to five years.

Since 1950, “several hundred” people, which includes both locals and foreigners, have been prosecuted for offences related to Holocaust denial.

While Germany’s Basic Law guarantees freedom of expression, clearly there are limits imposed. Besides the above two examples, it is also an offence to publish Hitler’s Mein Kempf booklet, or to broadcast or distribute via media (including the Internet) “child pornography, cruel violence, race hate propaganda, etc.” The display of Nazi symbols such as the swastika is also not allowed.

What then of the freewheeling blogosphere which, Monikes says, adopts a confrontational approach not only towards the authorities but also towards each other – bloggers attacking each other is not uncommon. Also, while the mainstream media in Germany is “centrist” and tries to be “objective”, the blogosphere is a different animal altogether.

“German law does not have special laws for blogging,” says Monikes. “A blogger’s legal status is unclear.” While some existing laws would apply to bloggers, such as laws pertaining to copyright, privacy and so on, it seems that what the German government is really trying to get at is what Monikes calls “self-rating”. What this means is that while free expression is encouraged, all websites in Germany (and perhaps even those overseas but which are run by German citizens) would be required to display a rating on their front pages.

Such a proposal is currently being considered by the authorities. Dissenters say that it is too fine a line to censorship, which is precisely what the law on press freedom wants to avoid.

It is not all doom and gloom for bloggers in Germany, though. Although they do not have any legal status and are not professional journalists, German bloggers enjoy all the rights which members of the mainstream professional press do.

Bloggers, for example, are allowed to join press unions and thus be able to apply for press passes. In Germany, press passes are issued and given by any of the five press unions in the country, unlike in Singapore where these passes are given at the discretion of the government. Bloggers in Germany thus can participate in press conferences and have access to government officials. They are also eligible to join the social security system for journalists, their articles are protected by copyright laws, and government officials are required to respond to bloggers’ queries.

Germany is currently ranked 18 by Reporters Without Borders in its press freedom index. The Internet, however, is challenging the country’s laws on privacy and law enforcement, particularly in the areas of libel, slander and defamation, and in the protection of minors. At the moment, bloggers are mostly given advance notice to remove anything which a third party feels aggrieved by. Failure to do so would result in lawsuits being taken up against the blogger.

According to Monikes, “The only problem German bloggers have to deal with are the costs for possible legal procedures if they are not willing to avoid [their] own or [the] “notice and take down” defamatory user-generated content.”

However, he feels that “due to political symbolism and helplessness, a tendency [by the German government] can be noted to limit the freedom of the Internet more than would be considered with regards to classic media.”

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Read also fellow Bloggers' Tour participant from Bahrain, Mahmood Al-Yousif’s write up on the same topic - “Ah, Germany is not that free after all!” and view more pictures of the tour on Mahmood’s flickr

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