In Germany, Policing the Net Brings Troubling Legal Issues

In first-ever case, a woman is charged for a link on her home page to a radical Web site

Around the globe, the question of policing the Internet is absorbing everyone from political leaders afraid of an informed public to parents concerned about shielding their children from pornography.

And in Germany, where the impulse to regulate seems innate and the acceptance of new technologies can be slow, the irresistible force of the Internet keeps banging into the immovable object of legal tradition.

In this context, the case of a young left-wing politician, Angela Marquardt, on trial in Berlin, is seen as a worldwide first. Her personal Web home page included a link to a radical-left magazine, which recently included instructions on how to make a bomb to blow up trains. A law banning the spread of information that teaches how to commit crimes is the basis for the charges against her.

Radikal, the left-wing magazine that Ms. Marquardt linked to her home page, resides on a server in the Netherlands. Issue No. 154 of the magazine included the instructions on how to sabotage railway lines. This was a hot topic in March, when the largest police deployment in postwar German history was required to ensure the safe transfer of six containers of nuclear waste across the country to an interim storage facility in the town of Gorleben.

The broad-based protest demonstrations against the transfer were overwhelmingly peaceable, but the threat of violence was continually present.

A provision of the law on "criminal texts" also prohibits aiding and abetting dissemination of such texts on the part of others, and it is under this section that Marquardt is being charged.

Ulterior motives to the prosecution?

In a Monitor interview, however, Marquardt says that she built the link to Radikal before that particular issue was published, and she has since publicly dissociated herself from the material in question.

She offers three explanations for her prosecution:

* The continuing debate on how to regulate the Internet rages on in Germany. A new multimedia law, seen within Germany as relatively liberal, is to become effective Aug. 1. The new law says nothing about hypertext links, but Marquardt says, "I think they want some legal precedents" established before Aug. 1.

* She is a former vice chairman of the PDS, the successor party to the East German Communists, and sees a pattern of harassment of leftist politicians by the authorities in Berlin.

* Prosecution is under way against the publishers of Radikal, and she sees her prosecution as part of an effort to "undermine the solidarity of the people," who might oppose such prosecution.

She suggests that if the regulatory issues can't be settled, "Germany can just about say goodbye to the Internet."

The basic question here is, she says, "Who is responsible for what? Am I responsible just for the content of my own home page or for the content of pages I may provide a link to?"

Chris Kuner, an American attorney in Frankfurt who follows cyberspace issues in Germany, says that although there have been some civil cases in Britain and the United States regarding hypertext links, "to my knowledge this is the first case in the world regarding criminal liability with hyperlinks."

He questions whether the hyperlink can be seen as "dissemination" of the material. "All she's doing [with the link] is providing a guidepost."

He also raises the question whether the court in Berlin, the lowest level of the judicial system, is well enough informed on the technical issues to make a sound decision. "The court seems just befuddled on this."

Marquardt concurs: "The prosecutors have no real knowledge of what they're prosecuting."

Indeed, when the trial resumes Monday, the first order of business will be to hear from three expert witnesses called by Marquardt's attorney.

Trying to regulate cyberspace

Research Minister Jrgen Rttgers, whose ministry developed the new multimedia law, has striven for a legal environment that is as open as possible.

He sees the need for his country to embrace new technologies - but he has also been adamant that cyberspace cannot be a free-fire zone with no regulation. His approach has been to take existing law - governing postal security, for instance - and apply it to a new medium: electronic mail.

Peter Reifenrath, an attorney in Hennef who works with the Internet Content Task Force, an industry group intended to help online services keep abreast of relevant legal issues, says that Germany often gets a bad rap for "regulatory zeal," which is unfair. The effort to apply existing laws to new technologies should be seen as "not negative."