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Higher Regional Court says online demonstration is not force

02.06.2006 15:16
Higher Regional Court says online demonstration is not force

Almost a year after the first-instance court of Frankfurt sentenced the initiator of an online demonstration against Lufthansa to pay a fine, the Higher Regional Court has overruled the lower court's verdict in its ruling of May 22 published yesterday and found the accused not guilty. The judges mainly questioned the definition of the use of force on which the lower court had based its ruling.

The proceedings concerning the online demonstration lasted almost five years. On 20 June 2001, the Groups "Libertad" and "Kein Mensch ist illegal" (No one is illegal) called for an online demonstration against Lufthansa. With special software they developed, demonstrators were able to automatically call various Lufthansa web sites in an attempt to overload the servers. The activists did so to protest the airline's participation in deportations.

It is not clear whether the campaign was a success. The publicity effect was tremendous, with even Germany's Ministry of Justice publicly expressing its doubt as to whether the planned event was legal. There were charges that the campaign constituted coercion and computer sabotage. Nonetheless, the human rights activists say that some 13,000 Internet users took part in the protest. On the other hand, the technical effect on Lufthansa was not great: the airline had prepared for the attack and rented additional line capacity to accommodate the traffic. Even today, it remains unclear how long the web site was actually slowed down and whether it ever went offline completely.

But the legal aftermath had greater effects. The human rights activists saw their online protest as a modern kind of nonviolent sit-in and claimed they were acting within their basic constitutional right of freedom of assembly. Lufthansa and the state prosecutor saw things differently: they claimed that the campaign constituted coercion and that the activists were inciting others to break the law. The offices of the Frankfurt group Libertad were searched and computers confiscated – the beginning of several years of investigations.

In the summer of 2005, the first-instance court of Frankfurt found initiator Andreas-Thomas Vogel guilty and sentenced him to a fine of 90 days' pay. The court found the demonstration to be a use of force against Lufthansa as a web site operator as well as against other Internet users; specifically, the airline had suffered economic losses from the campaign, while other Internet users had been prevented from using Lufthansa's web site. The online demonstration was found to be a threat of an appreciable harm as defined by German Penal Code Section 240; Vogel was therefore found to be inciting people to commit coercion.

In its ruling (1 Ss 319/05), the First Penal Senate of the Higher Regional Court of Frankfurt has now overruled the initial verdict. The Higher Court found that the online demonstration did not constitute a show of force but was intended to influence public opinion. This new interpretation left no space for charges of coercion, and the accused was found not guilty. The initiators of the campaign see this new ruling as a "slap in the lower court's face." Although the online demonstration has not been repeated, the initiators expressly repeated their conviction that the protest was legitimate. As Libertad spokesperson Hans-Peter Kartenberg put it, "Although it is virtual in nature, the Internet is still a real public space. Wherever dirty deals go down, protests also have to be possible." He also called on everyone not to forget the actual goal of the online protest in light of all the legal turmoil. According to Libertad, some 20,000 people are forcefully deported each year. Kartenberg reminds everyone that this "inhumane policy" causes hundreds of deaths each year. (Torsten Kleinz) (Craig Morris) / (jk/c't)