B. Material That Vilifies People On The Basis Of Race, Gender, Sexual Preference Or Disability Or Incites Or Promotes Hatred On Those Bases.
According to a recent report by the Australian Broadcasting Authority - the Crimes Act 1914 and the Racial Discrimination Act 1975 may apply to communications made to the public which are made online regarding racial vilification. Other state laws may apply to communications to the public
made online which incite hatred towards, serious contempt for, or severe ridicule of any persons on the grounds of race.
In March 1996, French ISPs were subpoenaed after a French Jewish student organisation brought charges against them for alleged "complicity" in making available propaganda that denies the Holocaust, such propaganda being illegal in France.
On August 30th 1995 - the Federal Prosecutor's Office sent a fax to the Internet Content Task Force (the "ICTF") requesting them to inform all Internet service providers affiliated with the ICTF that a criminal investigatory procedure against the parties disseminating a leaflet entitled "radical Nr.154" a small ultra-left magazine, which the officials claimed "promoted a terrorist organisation". The service providers were warned that they might be subject to criminal prosecution for aiding and abetting
criminal activities if they continued to allow the pages to be called up via their access points and network nodes. The ICTF issued a press release a few days later stating that they could not find any tangible legal reasons why an ISP would be subject to prosecution for aiding and abetting communal activities if it does not block access to illicit documents via the World Wide Web, that blocking access to certain WWW pages was not technically possible without at the same time blocking a host, an entire network or the WWW part of a host and that they did not feel they could recommend that the ISPs block the URLs given. Following discussions with the Public Prosecutor General, it emerged that their view was that an ISP would definitely be guilty of aiding and abetting criminal activities if it failed to act after being informed about the URL of an illicit document.
The ICTF therefore recommended to its affiliates that, given that parts of the magazine "Radikal" were apparently illicit, German ISPs could not fully avoid responsibility during this investigation.
The ICTF also stated that the blocking of the URL was unnecessary and unreasonable, but that the URL or the hosts should be blocked immediately, though only for a period of 28 days.
Consequently, data packets coming from XS4all and Datarealm, the two Dutch providers who were hosting the Radikal pages, were blocked by some ISPs . This obviously had the effect of not just blocking the site but email requests were also unable to route through EUnet Germany. Datarealm removed Radikal from their site. XS4all sent out a cry for help having heard what was happening in Germany and the site was "mirrored" on over 30 times. A spokesperson from the Public Prosecutor General confirmed that executives of XS4all faced arrest if they entered Germany and refused to rule out action against those people who had set up mirror sites. More recent news suggests that the executives of XS4all have not been arrested, the Dutch authorities have taken no action at all and that Germany is no longer insisting that ISPs screen all their customers content, but that ISPs do still have a duty to monitor for pornography or Nazi propaganda which they have the technical means to block. It is unclear whether this applies to German ISPs only. This highlights the fact that although the German authorities have jurisdiction over the German ISPs, there is no indication that they have any jurisdiction or means of action over non-German ISPs. In a further report in the press, it is claimed that the German authorities have filed charges against a member of the Communist Party of Democratic Socialism, Angela Marquardt, for linking to the banned Radikal from her Website.
In January 1996, Deutsche Telekom blocked access to Internet sites which were spreading anti-Semitic propaganda, a crime in Germany. This followed a request by Mannheim prosecutors who were investigating Ernst Zuendel, a German-born neo-Nazi living in Toronto. Deutsche Telekom also blocked access to a Californian company, Web Communications, because it provided access to
Zuendel's site, the company maintaining that although it did not agree with Zuendel, it was not its policy to censor users. Although Deutsche Telekom blocked access, the site was still available through CompuServe.