Ah, Germany is not that free after all!

I know, such a revaluation isn’t it?

I’m in Berlin as part of an excellent program by the German Federal Foreign Office. They invited a group of 15 international bloggers coming from countries spanning across from Costa Rica through to China. Part of the program is to meet with German bloggers and opinion makers to effect a cultural exchange of sorts. The program is not strenuous at all, not like the usual conferences and workshops I usually go to which cram a lifetime into 3 days. With those you invariably come out fullfilled to be sure, but completely sapped and exhausted too. Well this one is different on many levels. It’s spread over 10 full days with planned time-outs and cultural visits too. Yes, it’s a holiday with a purpose. Thank you Germany 🙂

We concluded the first day of the program yesterday where we listened to 4 excelent people talk about the German blogosphere, politics, laws and media environment. The one i felt most important was a presentation by a self-described “aggressive lawyer” whose daily job, again by his own description, is to aggressively go after bloggers! It’s ironic because he himself is a blogger too.

Yes, lawyers are supposed to be dry – and the first glance at this one’s text-filled slides sort of confirmed that adage. I know that my fellow bloggers were at first skeptical too. We were resigned to what we were about to receive wouldn’t be anything better than Death by PowerPoint. That mode – i could see around me – was fully engaged.

But the guy surprised us. He didn’t only know how to press our buttons, he was also lucid in his thoughts, methodical in his presentation and made the relatively dry subject of Internet & Press Freedoms interesting through his evident passion.

The gist of his presentation is this: be prepared to be sued if you libel anyone, and he (and other lawyers too) will come after you!

In German law, there is no distinction between a traditional journalist and a “pro” blogger; that is, if your content is “news-type” approaching the same standards as that of a traditional mainstream paper, then you’re not only regarded as an equal to a journalist, but also will be deemed to have met the prerequisites of enrollment in a journalist union and will have the same rights and responsibilities enjoyed by journalists.

Weird isn’t it? And some still choose to be nit-picky about what pigeon hole bloggers should reside in! My friends, the lines are most certainly blurred and there isn’t a pigeon hole big enough to stuff bloggers in.

German law also provides no distinction between slander and libel and guarantees both freedom of expression and the freedom of the press.

Article 5 of the German Constitution (Basic Law) states:

Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without the 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.

These freedoms are further backed up by several other basic rights such as the guarantee of private property and the right to freely choose and exercise any profession.

It also emphasises that all citizens are generally free to run a publishing company or offer opinions – critical or otherwise – and information in any form to the public by starting a blog – for example – without any kind of governmental approval.

The proviso is that one has to be conscious of the limits of freedom, that is, one’s freedom ends where another’s begin.

This is taken to levels which could be considered by others as extremes; for instance, one has the full right to walk in the street, any street in Germany, fully naked! Regardless of gender. And no one can force that person to dress-up because they individually think that that behavior is “unsavoury” or “disgraceful”, that – I suspect – is an individual’s opinion which is open to interpretation. However, if someone complains that a person’s nakedness “disturbs” him, than and only then would it be considered as impinging on that person’s freedom and the naked person is made to dress up.

The press in Germany is independent of governmental control to the extent that governments (there are 16 of them in this Federation) are forbidden to issue or get involved in the issuance of Press Cards as those are solely the responsibility of the professional bodies such as Press Unions.

Herr Jon Mönikes, the vigorously aggressive lawyer warns us though, that you have to stand behind your words. In what to my mind is a contradictory and unconstitutional requirement, he says that publishers must declare their names and addresses on their blogs, this is to demonstrate responsibility in allowing people easy access to communicate with them should they need to, and for the lawyers to know where to send the summons or the law suit to! Doesn’t that contradict with the Constitutionality of anyone is allowed to have a publishing company, let alone a blog, and not to have to register it with the government? Thinking about it now, I don’t think so and it makes sense. A publisher must stand by his publication. However I’m unsure that this condition is a government requirement, I suspect it’s not but is required possibly by the Unions.

Upon notification from his clients of an infringement in a blog or any other type of media, Herr Mönikes investigates the situation and if there is merit he would lift the phone to talk to the publication’s owner and demand the alteration, removal or retraction of whatever is published. If they choose not to, he takes them to court, something he proudly states that he has done hundreds if times. And here in Germany, the loser in any civil court must pay the lawyer’s and court fees for the case, so it could get very expensive, especially for bloggers. Most, of course, comply.

Publishers are ultimately responsible for whatever is published on their blogs. Even comments! Yes, that was a revelation to me and a lot of my fellow bloggers in the room. But, there are limits of course… If you do not exercise moderation, that is, if you don’t approve the comment before it is displayed on your blog, then you are not responsible. However, the government or the lawyer has the right to force you to declare the commenter’s identity and IP address if available! That seriously freaked me out!

The advice? Well, don’t read the comments! But if you do and if you find that the comment might warrant a case against you, then you are beholden by law to remove it! If you don’t, then get prepared to be dragged into court. When notified, “professional” bloggers must remove the offending material within something like 24 hours of notification, amateurs however get quite a bit more leeway and get to remove it in a week or so, and of course, as theirs is not professional, then the roles and responsibilities assigned to journalists do not apply to them.

Article 5 continues to say:

These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

Accordingly, limis to the freedom of expression are:

• general laws (including opposing constitutional rights of third parties) – general laws are federal and supersede local governments laws
• youth protection – child pornography, certain types of violence depictions, etc
• right to personal honour – libel, slander, etc

Probably the only no-negotiation law in Germany which even supersedes freedoms of expression is Holocaust Denial. Germans take this very seriously and if you do, then off to prison you go at the happy expense of the German government and citizens for 5 years. Full Stop.

So don’t deny the Holocaust happening and don’t display swastikas and other Nazi symbols. And oh, you can’t sell Mein Kampf here either. You can own it if it’s handed to you or you found it, but you cannot sell it, and by inference, you won’t be able to buy it.

Regarding the Holocaust, you CAN question its situation, the numbers involved and do academic research into it, but you just cannot deny it’s occurrence.

So how is this all different from the laws in Bahrain and other Arab countries? It seems even stricter than what is coded in our own countries.

Thinking about these issues since yesterday, I think the differences are quite apparent. While in Germany (and other democracies) the law is applied fairly, it is backed up by an independent judiciary and above all it is applied with good will. With us, unfortunately, regardless of how good the laws are on paper, they are applied with ill will for the most part, with an eye on a hidden or declared agenda.

Will this situation change in the future? I hope so. But it won’t happen on its own accord. It requires people to stand up and vigorously demand their rights, rather than just be the usual acquiescents we normally are.