MT / MÜ Auschwitzlüge case

Professor Lenz mentioned a discussion of a German case:

bq. Today the Criminal Law Society of Japan held a workshop I attended. We discussed German law, the decision of the Federal Court of Justice of December 2000 that said Australian citizens need to obey German penal law when posting on a website in Australia, in English.

I thought there might be discussions of this case in English on the Web. I haven’t got time to translate it myself at the moment, but I did find a machine translation of it – machine translation is useful only to give a rough impression of a newspaper article or website, but a decision by the German Federal Court of Justice? Here is a quote, for the benefit of any lawyers who think they should jazz up their websites by the addition of machine translations into several languages:

bq. Guiding principle

bq. If a foreigner places to expressions written by him, which fulfill the facts of the incitement of the masses in the sense § to 130 exp. of the 1 or § 130 exp. the 3 StGB (“Auschwitzluege “, on a foreign server into the InterNet, which is
accessible to InterNet users in Germany, then a success belonging to the facts
steps (§ 9 exp. 1 3. Alternative StGB) in the inland, if these expressions are
concretely for the disturbance of the peace in the inland suitable.Here is the original German:

bq. Leitsätze

bq. (1) Stellt ein Ausländer von ihm verfaßte Äußerungen, die den Tatbestand der Volksverhetzung im Sinne des § 130 Abs. 1 oder des § 130 Abs. 3 StGB erfüllen (“Auschwitzlüge”), auf einem ausländischen Server in das Internet, der Internetnutzern in Deutschland zugänglich ist, so tritt ein zum Tatbestand gehörender Erfolg (§ 9 Abs. 1 3. Alternative StGB) im Inland ein, wenn diese Äußerungen konkret zur Friedensstörung im Inland geeignet sind. (BGHSt)

which means something like

bq. Headnotes [there is more than one headnote]

bq. (1) If a foreigner puts on the Internet on a foreign server statements made by him or her that satisfy the definition of incitement to hatred and violence against segments of the population (Volksverhetzung) as defined in section 130 (1) or section 130 (3) of the German Criminal Code (known as the “Auschwitzlüge” – holocaust denial), and this server is accessible to Internet users in Germany, then if these statements are specifically suited to cause unrest in Germany, this constitutes a result that is one of the elements of the offence (section 9 (1), third alternative, German Criminal Code).

This is just a rough translation, done without research. I have left it as one sentence, but maybe it could be broken down. I don’t think I can use ‘breach of the peace’ for ‘Friedensstörung’, because I think the former has a different meaning in English law and the latter is not an offence.

The biggest obstacle to comprehension in the machine translation is ‘(ein Erfolg) tritt ein’: ‘a success … steps’ instead of ‘a result … occurs’.

I know there must be more on this judgment in English on the Internet, and possibly even a translation. There is an article in Wired News. Certainly there are articles in Australia: at ABC, and here is a decision of the Federal Court of Australia against the Australian in question, Frederick Toben, ordering him to take down his website (via Weatherall’s Law weblog).

But I think nearly all other legal weblogs know more about this German case than I do, so I will stop here.

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