Freedom of speech in Germany: the legal framework

The legal basis of freedom of speech in Germany is in Article 5, sections 1 & 2 of the Grundgesetz:

(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu äußern und zu verbreiten und sich aus allgemein zugänglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet. Eine Zensur findet nicht statt.

(2) Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der Jugend und in dem Recht der persönlichen Ehre.

All statutes passed by the Bundestag and all regulations issued by government departments are subject to testing against these basic standards, and there have been numerous occasions when the courts have been called upon to do so. There are obvious tensions (of which the authors of the Grundgesetz were fully aware) between Sections 1 and 2 of Article 5, and it is the task of legislators and judges to try to resolve those tensions in the spirit of the Grundgesetz.

In a judgement of 1958 the Bundesverfassungsgericht made an extremely strong statement about the place and importance of the freedom of speech:

Das Grundrecht auf freie Meinungsäußerung ist als unmittelbarster Ausdruck der menschlichen Persönlichkeit in der Gesellschaft eines der vornehmsten Menschenrechte überhaupt. Für eine freiheitlich-demokratische Staatsordnung ist es schlechthin konstituierend, weil es erst die ständige geistige Auseinandersetzung, den Kampf der Meinungen, ermöglicht, der ihr Lebenselement ist. Es ist in gewissem Sinn die Grundlage jeder Freiheit überhaupt .

According to this and other related judgements of the Bundesverfassungsgericht, Article 5 of the Grundgesetz does more than offer a principle to which people can appeal if the believe their right to free expression is being infringed. The Article is held to make it the positive duty of the state actively to ensure and oncourage the existence and flourishing of a wide variety of public and readily accessible expressions of opinions and attitudes. Article 5, as interpreted by the courts, also means that no German government can legally:

• Operate any form of licensing system for newspapers or journals (though government licensing of broadcasters has been assumed to be legitimate and never been challenged).

• Exercise any censorship prior to publication

On the other hand, the apparently plain statement "eine Zensur findet nicht statt" has been interpreted by legislators and by the constitutional courts in a sense rather narrower than the one most lay people assume it to have. "Zensur" has been consistently understood as a procedure whereby those intending to publish are required to seek offfical permission and approval for what they intend to say or show before making it available to the public. Measures taken after publication to remove an item from circulation or ban it from further distribution have not been regarded by the courts as falling under the ban on Zensur in the Grundgesetz. Courts have often ruled that a publication in any medium which contains something which breaks the criminal law, is contrary to the Grundgesetz, or which has been proved in court to be libellous can be banned and witheld from the public after initial publication without any violation of constitutional principles. This of course encourages a degree of "self-censorship" by making people think twice before publishing anything that might subsequently be held to merit a post-publication ban, expecially if such a ban would lose them a lot of money, cost them a fine or and them in prison. The problem with the cheapness of Internet publication is that it costs so little that the sanction of losing a substantial investment through attracting a post-publication ban doesn’t apply.

 Constitutionally permissible restrictions on freedom of speech

 The limitations which Article 5 Section 2 of the Grundgesetz permits specific legislation to place upon the freedom of information and reporting are to be found in the area of

• Defence of personal reputation
• Defence of individual privacy
• Defence of legitimate commercial interests (trade secrets etc.)
• Issues of national security

In all these areas, uncertainties have arisen about how far the constitution limits the application of specific laws, calling for decisions by the Federal Supreme Court (Bundesgerichtshof) as well as doubts about whether specific legislation violates the Constitution, leading to appeals to the Bundesverfassungsgericht.

 Media not immune from general laws

Nothing in Article 5 of the Grundgesetz protects journalists, publishers, broadcasters, Internet providers or their customers who break the laws binding all citizens by

• advocating aggressive war
• fostering racial or political violence or hatred
• glorifying or trivialising violence
• inciting to criminal or terrorist actions

all of which are offences under various sections of the German Penal Code. The constitutional guarantees of freedom of speech offer no defence against charges brought against on any of these grounds.

The Gesetz über die Verbreitung jugendgefährdenden Schriften requires there to be a body which is empowered to declare certain "publications" (held by the courts to include videos and computer games, but excluding daily newspapers and political journals; whether it includes WWW sites, as many politicians claim, is a matter yet to be tested in the courts) to be "dangerous to young people" and to take measures to prevent young people gaining access to them. This "danger" may be held to be either political or moral, and the test is whether a "young person" would be more susceptible to being led astray by a given publication than an adult: this means that things that would escape criminal prosecution (say for advocating violence) because an adult could not be reasonably expected to be influenced by them can still be banned under the Jugendschutzgesetz. The Prüfstelle is not a sort of moral police force: it is explicitly forbidden to go out and seek suspect publications on its own initative, and it can only act in response to a request from a third party. If a Prüfstelle after investigation lists a given publication as "dangerous to young people" more than twice in the space of a twelve-month period, that publication cannot be sold, displayed or made available for consultation in any place where people under 18 might have access to it. This means, in practice, that it is banned from normal sales outlets and library facilities. Though this is often condemned as "censorship" by those affected, it is important to note that

• there is no legal requirement to submit such material to the Prüfstelle prior to publication;
• the Prüfstelle cannot take the initiative in proceeding against a publication;
• even when placed on the index of jugendgefährdende Schriften, a publication is not completely "banned": it simply becomes an offence to make it available to people under 18. In the case of a magazine, video or computer game, this can involve considerable economic loss and be as damaging as a full ban; but here too, the cheapness of Internet-based publication considerably weakens this economic sanction.
• the powers of the Prüfstelle are confined to listing such publications and enforcing restrictions on their availability. They cannot take any direct action against their authors or publishers, unless they breach those restrictions, and they have to prove that the breach was deliberate. This is easy to do with a newsagent who sells a pornographic magazine to someone obviously under-age; but how a Website author or Internet provider could be proved to have committed a parallel offence is much harder to see.

For all these reasons, the activities of the Prüfstellen do not constitute "censorship" in the sense meant by the Grundgesetz. There is a widespread belief that the provisions of the Judengschutzgesetz should be applied to on-line provision, but it is far from clear how selective access to Web pages, which made them available only to users over 18, could be implemented or enforced.

"Self-regulation" and freedom of speech

Not everything that is legally permissible is morally or socially acceptable to many sections of the population. For this reason, most democracies have some form of supervising the conduct of the media so as to discourage offences against good taste and common decency, even when these may be within the strict letter of what the law allows. In Germany the print media a "freiwillige Selbstkontrolle" (FSK) is carried out by the Presserat (Press Council) first established in 1956. It consists of 10 practising journalists, nominated by the German Journalists Organisation and the Press Trade Union (IG-Medien), and 10 representatives of publishers. Any individual or body is allowed to approach the Presserat with a complaint. Its terms of reference are to:

• Identify abuses within the press system and work towards their correction
• Investigate complaints against particular organs and where appropriate publish formal rebukes
• Examine and comment upon structural changes in the print media likely to damage freedom of information and reporting
• Make proposals and comment on issues concerning the Press to legislators, government and the general public

The Presserat has no power to enforce its decisions, and is consequently regarded as a "paper tiger" (ein zahnloser Löwe in German!) by many of its critics. But its lack of formal clout has not prevented it from taking an outspoken stand both on countless instances of press excesses and on larger issues, such as the problem of concentration of media ownership. It is to the generally well respected and long established functions of this Presserat that the German Internet Providers association was alluding when it decided to set up its own so-called "Medienrat" to practise "freiwillige Selbstkontrolle" of online resources.

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