IP Watch: Germany Opts For ISP Filtering Of Child Pornography

Intellectual Property Watch » Blog Archive » Germany Opts For ISP Filtering Of Child Pornography; NGOs Warn Of Unintended Impact

30 March 2009
By Monika Ermert for Intellectual Property Watch @ 7:58 pm

Several German ministries seem to be in a footrace to draft legal text for a filtering regime blocking child pornography from German users’ personal computers agreed by the government last week.

Initiated by the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) the government has debated for months how to step up blocking of child pornography from servers outside of the country. Now the Justice Minister has announced a draft special law. The Economics Minister pointed to the already ongoing review of the German ‘Telemedia Law,’ a law covering rights and obligations of telecommunication media content providers. The obligation to block access to child pornography sites listed by a government agency would fit in there.

The German government pointed to an announcement by the European Commission from earlier last week that ‘systems to block access to websites containing child pornography will be developed’ and to existing systems in Denmark, Finland, Italy and Norway.

BMFSFJ Minister Ursula von der Leyen (Christian Democratic Party), in a debate in the German Parliament last week reiterated: ‘The rights of children carry more weight than unhindered mass communication.’ Von der Leyen for months has pushed fervently for a quick private agreement with big internet service providers (ISPs) including Deutsche Telekom, Arcor or 1und1 Internet. Von der Leyen did not refrain from presenting child abuse pictures to her parliamentary colleagues and the media in her quest for a quick decision.

Child pornography has grown considerably on the internet, according to the German government. In 2007, the amount of material provided over the net more than doubled, the government said in its 25 March resolution.

Yet Justice Minister Brigitte Zypries and members of Parliament from her own party and the Green Party warned against a contractual solution.

The filtering regime must be dealt with in a regular law because it could touch on fundamental rights of citizens and requires policies for liability for possible errors. In addition, Germany’s federal police – designated as contract partner for the ISP and manager for the list of child pornography sites according to existing law – has no competence in dealing with other than terrorism when it comes to preventive action.

Possession and distribution of child pornography has been penalised in Germany, and German ISPs have been reacting quickly to take down child pornography from their servers for years, Zypries told the Parliament. ‘Now we’re talking about servers that are hosted outside of Germany where we unfortunately – or perhaps luckily – cannot say, ‘do this, do that,’’ said Zypries.

Zypries welcomed that some ISPs had agreed with von der Leyen to work right away on the technical implementation that is necessary in the servers of the companies. When a special law is ready, expected by summer, technical implementation will be in place, too, she said.

Zypries also underlined that blocking of internet addresses alone might not be enough. ‘We should go deeper than that,’ she said. Criminal prosecution also is a must, she said.

If and how information collected through the filtering regime should trigger prosecution has not been discussed so far. A page with a stop-sign to which users trying to access child pornography sites will be redirected can only inform users why this special site is not available. Yet it also is possible to log users’ IP addresses during this process allowing authorities to identify and prosecute them.

While the government and its ministries are rushing toward the legal details now, there is massive critic from industry and non-governmental organisation. Eight ISPs and their main associations in Germany, eco and BITKOM, have been in talks about a contractual solution with the BMFSFJ. They all welcomed the resolution of the government this week for its path towards a law and a solution with regard to liability for errors in the system – meaning legal sites that get blocked.

BITKOM Chair August-Wilhelm Scheer again pointed out what technical experts had been saying all along: blocking is not able to fully prevent access, only make it more difficult. On the contrary, the blocking based on domain names that is currently favoured could be bypassed relatively easy, said Michael Rotert, chairman of eco.

The German nongovernmental group FITUG (Förderverein Informationstechnik und Gesellschaft) in a press release Thursday warned the blocking was completely useless to fight child pornography. ‘Blocking lists from Scandinavian and other countries show: most of the blocked websites are not child pornography.’ Minister von der Leyen reminded him of his two-year old daughter who covered her eyes and then thought the world did not exist, said FITUG Board Member Alvar Freude.

Germany should instead put more effort into prosecution and ask itself why dozens of offers fished out by Scandinavian filter systems came from servers in Germany. If these were illegal the government had failed to take action, said FITUG. Freude warned that child pornography was used to establish a filtering system that could be used to filter other things. A representative of Foebud, another NGO focussing on the interests of internet users pointed to violations of intellectual property rights as a topic that might come up in later filter discussions.

This is the not first time Germany has had a discussion about blocking websites with objectionable content. A similar debate took place regarding Nazi and violent content a few years ago. Publication of Nazi or neo-Nazi content is forbidden, according to German law. Last week, a Munich court lifted a ban on the reprint of Nazi newspapers published before 1939 by a British publisher. The state of Bavaria had tried to stop the publication, but the court decided the seventy-year-old copyright had expired. Bavaria also holds the copyright of Hitler’s Mein Kampf and has forbidden publication of it since the end of World War II.

Monika Ermert may be reached at info@ip-watch.ch.