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Democracy and fundamental rights
Art. 5, 9


Amicus curiae brief to the Federal Administrative Court regarding the banning of the Internet platform linksunten.indymedia

The GFF intervened in the proceedings before the Federal Administrative Court concerning the banning of linksunten.indymedia with an amicus curiae brief. The Internet platform was banned by the Federal Ministry of the Interior (BMI) in August 2017, based on the Association Act (Vereinsgesetz). The Federal Administrative Court dismissed the appeals against the ban on formal grounds. A constitutional complaint is still pending.

Several affected individuals are challenging the ban in court. The GFF has submitted a statement as amicus curiae (“friend of the court”) because of the fundamental importance of the proceedings for the freedom of the media. In its statement, the GFF stressed that the Association Act must not be abused for media bans. In addition, the high thresholds for regulatory action against the media were emphasized. The intervention was thus also relevant for any future cases.

Abuse of the Association Act

linksunten.indymedia was considered an important Internet platform for the left and radical left in Germany. The BMI banned linksunten.indymedia on the basis of section 3 of the Association Act and Article 9 para. 2 of the Basic Law. It argued that the Internet platform was backed by a group of persons that meets the requirements of the broad definition of an association (section 2 of the Association Act). The association was banned because “its purposes and activities are contrary to criminal laws and it is directed against the constitutional order.”

In the eyes of the GFF, the law on associations is not applicable, regardless of whether those running the Internet platform can be considered an association. Since the ban was based exclusively on the articles published on the website, it is in substance a regulatory measure under media law, which falls within the legislative competence of the federal states. The Interstate Broadcasting Treaty (Rundfunkstaatsvertrag, RStV) concluded between the German federal states, which also regulates the supervision of online media, is applicable here.

The fact that the law on associations is not applicable is demonstrated by a (failed) bill of the Federal Ministry of the Interior from 1952, which provided for a ban on newspapers. The draft was based on the then federal legislative competence for the law of the press—the Ministry of the Interior did not even consider banning press organs by applying the law on associations.

Violation of media freedom

The sweeping ban on the entire Internet platform also constituted a disproportionate interference with the freedom of the media pursuant to Article 5.1 sentence 2 of the Basic Law, since less drastic measures were available. In particular, the competent authorities could have taken action against specific illegal content by means of injunctions and blocking orders in accordance with the Interstate Broadcasting Treaty (RStV). The contents allegedly contrary to criminal law or the constitutional order are not sufficiently characteristic to justify the ban, especially since according to the case law of the Federal Constitutional Court the contributions produced by users are not automatically attributable to the operators of the platform.

The ban also violated the European Convention on Human Rights (ECHR). Regarding several Turkish newspapers, the European Court of Human Rights (ECtHR) has ruled that banning an entire newspaper violates the freedom of the press guaranteed in Article 10 of the ECHR, regardless of what the allegations are in detail. The same applies to online media.

The GFF as amicus curiae

The GFF submitted the statement on the banning of linksunten.indymedia because of the central importance of the proceedings for the freedom of the media and for the rule of law as a whole. The Federal Ministry’s approach is a touchstone for how the government handles media offerings in a scene that is critical of or even hostile to the current political and economic system and sometimes commits crimes. A legal system based on liberty proves itself especially in the way that it deals with such uncomfortable members of society.

The GFF chose the form of the amicus curiae brief for its statement. This instrument originates from the US legal system. The amicus curiae, i.e. the friend of the court, does not acquire any procedural rights, but raises new perspectives on the lawsuit and other legal questions through an external statement. The amicus curiae brief is not yet common in Germany and large parts of Europe, while in the United States it has long been contributing to a more fundamental and human rights-friendly case law. The GFF has set itself the goal of establishing this means of procedural participation in the interests of fundamental and human rights.

Further information (in German):

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