By Tom Scheirs⁽¹⁾

On December 12, 2000 the Bundesgerichtshof - Germany's Supreme Court - held that Germany's domestic laws on Nazi propaganda are also applicable to web sites located on servers abroad, thus reversing an earlier judgement of a lower court.⁽²⁾

The defendant in the case, the director of the Australia-based Adelaide Institute - a Holocaust denying institute - was arrested when visiting Germany in 1999. He was charged with offending the memory of the deceased and inciting the public by spreading 'Auschwitz lies'⁽³⁾ in both printed pamphlets and in publications on the web site of his institute. In particular, he claimed that the Holocaust is a Jewish invention. The lower court sentenced him to 10 months of imprisonment for offending the memory of the deceased, but found that the German laws on Nazi propaganda could not be applied to electronic publications on the internet because the web server on which the publications were accessible was located in Australia.

The Bundesgerichtshof overturned the decision by applying paragraph 9, section 1 of the German Criminal Code concerning the locus delicti, which states that the places where the consequences of a criminal act have taken effect are also considered to be part of the locus delicti. From this, the Court concluded that although the publications concerned were placed on a foreign web server by a foreigner, the criminal act of inciting the public had nevertheless consequences in Germany, since the publications and their contents were available to the German public. Since actual incitement of the public is not considered to be an element of the crime - it is sufficient that there is actual danger that the public could be incited - all the elements of the crime were available and the crime could indeed be prosecuted in Germany.

Although the Court's decision is important for the debate on cyber crimes and the ensuing questions concerning their locus delicti, its immediate results and consequences remain limited to acts committed by perpetrators who can be found on German soil. A concerted effort on international level is therefore nevertheless still required. As long as perpetrators use the internet to disseminate material in countries where this is illegal to do so, but operate from countries where the freedom of speech is approached in a different way so that the contended acts are indeed legal in that country, not much can be done through criminal law.

1. Tom L.W. Scheirs (Jur. Lic. 1997, LL.M. 1999) is a researcher at the Centre for Enforcement of European Law and the Willem Pompe Institute for Criminal Sciences, both at Utrecht University. In 1997-1999 he was a researcher at the Faculty of Law of Antwerp University, and was attached to the Belgian Commission for the Reform of the Code of Criminal Procedure from September 1997 to October 1998.

2. Bundesgerichtshof, December 12, 2000, 1 StR 184/00.

3. § 130 sections 1 and 3 of the German Criminal Code.