Internet

• Author: International Law Group

On December 12, 2000, the German High Court (Bundesgerichtshof) issued a decision that concerns criminal liability for internet content obtained from foreign internet websites. In the case at bar, the Court affirms the criminal conviction of an Australian national for libel and for "inciting hatred among people" (Volksverhetzung) (see Section 130 paragraphs 1 and 3 of the German Criminal Code, StGB).

The defendant is Frederick Toben, the Director of the "Adelaides Institute" in Australia. Holding itself out as a research entity, the Institute published statements and articles with "revisionist" theories that doubt the Holocaust and describe it as an invention of "Jewish circles."

Even though defendant has acted only outside Germany, the Court holds that he may be criminally liable for his actions under German criminal law if the "success necessary to constitute a crime" under Section 9 of the Criminal Code (StGB) took place in Germany. The crime of incitement of hatred among people requires that the action be "capable of disturbing the peace in Germany." German criminal law, however, does not require proof that the peace was actually disturbed [i.e., such a crime is called an "abstract offense" (abstraktes Gefaehrdungsdelikt) in German law]. Until this decision, the High Court has never addressed the issue of whether such "abstract" offenses require a special "location of success."

The Court rules that German criminal law may punish a foreign national if he publishes statements that constitute incitement of...