Dear fellow reader,
I hate to annouce it, but from today on I’ve set the comment-function to “need moderator approval”. This is due to a very stupid ruling of the District Court of Hamburg.
What was the situation before the ruling?
If nasty comments appeared in blogs which aren’t covered by free speech – means hate-speech, obvious lies and insulting comments to third parties – the moderator or owner of the blog had to “act on time” (means in the matter of hours) to remove the comment manually. It wasn’t a perfect system, but it was the smallest common denominator the blogosphere had in common with the law. Luckily there were only very little comments since I have this blog. I can only remember of two postings which were such degratory that I felt I need to remove them. I strongly believe in free speech and public discourse so I could live with this system.
What’s the situation now?
An insulting comment against a company which appeared in a blog 3:37 AM was deleted by the moderator on the same day at 11:06. Considering that the comment appeared during the night and that people have a job and also need some sleep, this wasn’t too bad after all.
However, the Court ruled that the timespan was too long and that it’s unacceptable that “possible insulting comments are published without and prior check”.
The consequence is that this blogger now has approve every comment manually in order to comply with the court’s ruling.
Why is the ruling bad?
Since bloggers and forums now need to approve every posting manually, bloggers might feel inclined not to approve controversial postings. Bloggers ain’t lawyers after all, how could they possibly be sure if the comment is rightful or not? I get the feeling that bloggers might think not to approve “sensitive” comments not to get in trouble.
The German Constitution says in Article 5 (1):
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
But also it says:
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.
The law doesn’t say that the blogger is responsible for the comments of other people. If the poster writes a comment which violates (2), it’s his fault and not the bloggers. Putting the blogger in the situation to decide if this is unlawful or not, you end up violating (1) – freedom of expression – if he censors it.
Why did I follow the same path?
At the moment the law does not precisely define how to deal with the “ugly comment”-situation. Every court is ruling differently right now, with Hamburg’s Court on the outer edge of insanity. As long as the situation isn’t clarified in the law, I’ll be moderating the comments manually.
Considering that I got in trouble quite often in the last two years, I decided to go the safe cowardish path. I’ll try to do my best.
Alexander W. Janßen.