The German constitution does not completely negate censorship. It's 5th article, guaranteeing the freedom of expression, implies a few restrictions and as well is restricted by the 18th article, the one on the forfeiture of basic rights. Below is the translated text of both (emphasizations by me).
(1) Everyone has the right freely to express and to disseminate his opinion by speech, writing and
pictures and freely to inform himself from generally accessible sources. Freedom of the press and
freedom of reporting by radio and motion pictures are guaranteed. There shall be no censorship.
(2) These rights are limited by the provisions of the general laws, the provisions of law for the
protection of youth and by the right to inviolability of personal honor.
(3) Art and science, research
and teaching are free. Freedom of teaching does not absolve from loyalty to the constitution.
Whoever abuses freedom of opinion, in particular freedom of the press (Article 5, paragraph 1) freedom of teaching (Article 5, paragraph 3), freedom of assembly (Article 8), freedom of association (Article 9), the secrecy of mail posts and telecommunications (Article 10),property (Article 14), or the right of asylum (Article 16, paragraph 2) in order to attack the free democratic basic order, forfeits these basic rights. The forfeiture and its extent are pronounced by the Federal Constitutional Court.
In specific laws this is interpreted as follows.
Basically "protection of youth" implies protection from
(a) media that "morally endangers children and adolescents." This especially
refers but is not limited to glorification of violence, crime, racism and
war.
(b) pornography. Its definition is difficult however. One that probably best matches
the official view is the definition as "anti-erotic and inhumane sex",
whatever that means. Therefore the type of pin-ups you can find in "Playboy"
and similar magazines are not always considered pornography, even though
their distribution is restricted.
There is a state-owned organization called BPjS with the right to prohibite the distribution of media up to a certain degree. This organization can be contacted by the Ministry of youth, family, women and health and several other public authorities to proof if a certain book, video, computer game, CD or anything can be considered dangerous for minors. If the BPjS decides it is, then the respective media is "indexed". This means that it may not be sold in shops accesible to minors or via mail order, may not be advertised and may not be given to minors. Adults can still buy it - if they know it exists and where to get it, because indexed media often sort-of disappears off the surface of the world even though theoretically it could still be available for people over 18. There are important exceptions that can prevent media from being indexed. A media may not be indexed only because of its political, social or religious content, although this does not imply works that glorify national socialism and war. Up to a certain degree public interest as well as scientific or artistic relevance can prevent indexing, too.
Beside the BPjS there are other institutions similar to American ones that try to restrict the distribution of certain media. For example movies and computer games always have a label printed on their package stating a required minimum age of the recipient. Especially comic book and magazine publishing companies try to take care that products intented for adults are not sold to minors. There are laws to ensure that, however these restrictions cannot be considered true censorship since they don't affect the freedom of information for adults. Please note the important difference between these and the process of "indexing" by the BPjS which is officially defined as "post-censorship" (censorship after publishing).
The 18th article of the German constitution explicitely excludes anyone who attacks the "free basic order" (the consitution) from the freedom of expression and several other basic rights. This means that it is forbidden to form anti-constitutional organizations and to publically distribute any pieces of media that uncritically express anti-constitutional viewpoints. "Anti-constitutional" does not mean that you disagree to certain details, but reject the content of the consitution as a whole. This mainly applies to the following political viewpoints:
There is a secret service called "Verfassungsschutz" ("Protection of constitution") trying to spy out and inform the public about suspicious organizations and parties. If an anti-constitutional viewpoint can be proofed the respective organization and its publications can be prohibited by the Federal Constitutional Court. Of course this also applies to anti-constitutional publications not obviously depending on an organization. Prohibition of organizations is problematic however because it is sometimes difficult to proof that anti-constitutional thinking is part of the program and not only the view of particular members.
It is forbidden to publically show (which means wear, print or broadcast) any anti-constitutional, especially nazistic, symbols such as the swastica even though under certain circumstances they're tolerated when obviously used in a different context (for example the swastica as a non-political mystical symbol). That does not imply any critical historical publications such as history books, anti-nazistic cartoons, etc. Nevermind communistic and most anarchistic symbols can be shown freely.
In Germany indexing is omnipresent. Issues of youth magazines like "Bravo" have as well been indexed as classics of pornographic literature such as the "Story of O" by Pauline Reage. Note that indexing only affects one particular edition of a book. Recently the "Story of O" and its sequel have been republished in one edition. It seems absurd but this edition is not affected by the indexing of the original book because it also contains the second part. If any public authorities should see any need to prohibite the book once again however, it can theoretically be re-indexed. Perhaps it is now tolerated because it turned out to be a classic, such as the writings of Marquis de Sade, which, as far as I know, have never been indexed although they contain extreme pornography. It seems since de Sade wrote his books two hundred years ago and children are probably not interested in that type of "ancient" literature, it is not considered dangerous.
One of the most constantly discussed examples of indexing are 3D shooter computer games, especially the ones by id software, like Wolfenstein 3D, Doom and Quake. Wolfenstein 3D has not only been indexed but completely forbidden because of the nazistic symbols (such as the swastica) it contained. It didn't matter that the goal of the game was to kill Nazis in a castle labyrinth. It was the depiction of the symbols alone that made the computer game be considered anti-constitutional. When Doom was indexed because of the violence it contained there was a public controversy, because some institutions considered it "advertising of an indexed game" if the name of the game was mentioned in a computer game magazine. This led to judicial activities against magazine publishers only because of the mentioning of a name. The result was a very careful and unsure approach of the media on the reviewing of the sequel Quake some years later.
Originally the BPjS was found in the 1950's to prevent the distribution of "immoral" comic books, especially American ones. This is why so-called protectors of the youth still have an eye on today's comic scene. Recently the well-known publisher "Alpha Verlag", publishing both, avantgarde and different types of pornographical comics, was nearly ruined when public prosecutors confiscated a large amount of their publications without even having a judicial decision in the backhand.
In the history of Germany after WW2 two parties have been prohibited, the neonazistic SRP in 1952 and the Communist Party of Germany in 1956. Today new neo-nazistic organizations are prohibited very quickly, which leaves them only the chance to go underground. A lot of parties and organizations are currently observed by the Verfassungsschutz, for example
Nazistic publications, such as Adolf Hitler's autobiography "Mein Kampf" are not publically available and may in no way be distributed. On the other hand the works of Karl Marx can be bought in every book shop. Personal viewpoints of contemporary authors that reject main principles of the constitution are basically tolerated because there is no obligatory loyalty towards the constitution for citizens. It is mainly active work or propaganda against the "free basic order" which gets the attention of the Verfassungsschutz. For example it is legal to say that you don't think democracy is the right way, but it is not allowed to declare that right now democracy has to be removed by doing this or that.
The German internet has the same legal restrictions as other media. The prohibition of websites only affects sites situated in Germany however which makes censorship seem to become more and more obsolete. Illegal - which means indexed or anti-constitutional - content can easily be posted to foreign servers, for example American ones, where providers are not bound to German law and therefore cannot be accused of hosting content which is considered illegal in Germany but not in the respective country. The German government and legislation currently does not know any solution to that problem. It is obvious that because of a lack of borders in cyberspace a concept of Internet censorship - if there shall be one - cannot be decided by one country alone.
The BPjS is constantly discussed although accepted by many. Some people however don't accept the arrogance of the state to decide what an adult may watch or read and what is moral and what not. Some agree that there should be protection of youth - maybe in a way that does not affect adults - others say that it is the responsibility of the parents. The usefullness of the methods of the BPjS are subject to doubt as well. Does it make sense to index a computer game that a young person can easily copy from a friend's computer? Does it make sense to index a book while everybody can freely access any type of information via Internet? The examples in chapter 2.1 (id software, Alpha Verlag) also show a certain unfairness of public authorities.
Sometimes it is claimed that the decisions of the BPjS might not be as objective as they're wanted to look like. Because indexed media is practically removed, the so-called "protection of youth" could possibly be a way of suppressing unwanted oppinions. This seems speculative, but it implies a possible danger.
Political censorship in Germany was mainly introduced because of the fate of the Republic of Weimar, the first German democracy that ended up in national socialism. The Constitution of Weimar granted freedom of expression to all kinds of oppinions including anti-constitutional ones. After the war that was considered one of the main reason for the rise of national socialism, so protection of anti-constitutional thinking was excluded from the new constitution of western germany. The main idea was that there should never again be national socialism. The fear of a Fourth Reich is still very present in people's minds and this is why many accept censorship.
Extremists often call Germany a "police state" - because their freedom of expression is limited. However the internet makes this frustration more and more unnecessary. In the past intellectuals could get problems when drastically criticizing the Bundeswehr (army), but with the end of the cold war and the appearance of new media the situation seems to become more liberal.
1.Is the Internet a free forum for discussion, or is it a broadcasting service, and therefore
subject to the same restrictions as television, print, or radio?
It is both. Protection of youth should be established - for example by
letting browsers hide problematic content from children. I am not sure on wether
to censor anti-constitutional content. Anyway, I don't think that this
could and should be part of an (international) internet censorship concept because of the
differences between the constitutions of different countries.
2.Read the article at
http://www.eff.org/pub/Legal/Cases/Loudoun_library/HTML/19981123_eff_statement.html
and consider this debate question:
Do you agree with the US District Court's ruling, or do you think that libraries should have
their Internet access "filtered" to exclude objectionable content?
No they shouldn't. "Filtering programs" usually do not work well and adults
should be able to decide for themselves. Maybe sites not suitable for children
should be marked by the creator of the site and be filtered out by the
browser depending on who uses the computer (-in case that can be determined).
3.Is it legal and ethically sound for web sites to host hacking tools and cracks? Should they be
censored? Why or why not?
Cracks aren't legal and hacking usually isn't, too. I think we're away from
informational communism where all data can be freely distributed. How could it
be ethical to support crime and produce economical damage?
4.A dean of a local university has decided to block certain newsgroups from the university's
news server. Is this a case of censorship?
It is.
Are the dean's actions constitutional? See
http://courses.cs.vt.edu/professionalism/Censorship/Censorship.html for more information.
I think you don't have that kind of "filtering" in German universities.
As far as I know German law that wouldn't be consitutional
concerning newgroups on discussion of sexual preferences and similar things.
Anti-constitutional extremist (for example: Nazi) newsgroups could probably
be filtered out.
5.Since certain types of speech are not protected by the first amendment
(art. 5 in Germany), does this imply that
the first amendment's (art. 5) protection of "freedom of the speech" has been rendered meaningless?
Freedom of speech has not been rendered meaningless, but there is a
constant danger that it will be, if legislation decides. That does not
happen now, but I could imagine situations were parties (NS, communists, etc.)
rule that
have no interest in freedom of the individual and try to increase
restrictions by interpreting certain laws that restrict basic rights in a
way they weren't meant.
© 2000 by Stefan Oertel