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Nutzwerk/SaferSurf: Creative Marketing, Patent Hype and Litigation
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At the moment, FFII is barred from reporting about the Leipzig-based Internet company Nutzwerk GmbH and their product SaferSurf. Our documentation does not contain any forbidden statements, let alone defamating untruths. But Nutzwerk has succeded in pushing the cost risks for any critical reporting about their activities to such levels that attempting this is currently beyond our means. They have achieved this by ever-new preliminary injunctions with court fees based on high amounts in controversy before a ever more courts (six injunctions in three courts) and by sending threat letters to fearful third parties, e.g. Internet service intermediaries or web authors who have been placing links to this site.
The current documentation is temporarily inaccessible because of the cost risks generated by the German litigation system. An older version of some pages is being published by a Swiss Initiative against German Judicial Censorship. We must for the time being desist from any publication of newer texts, as this could further augment the number of courts involved and drive up our costs.

We can not even risk to report, which sentences were forbidden by the courts, as this would once more set Nutzwerk's cease-and-desist letter writing machineries in motion against third parties whom we will then have to indemnify, thereby further increasing the number of involved courts. The same is true of any statement that even remotely resembles those few narrowly defined statements that were actually forbidden.

We believe that with a 6digit budget, as we had for our successful fight against software patents in the EU, we would be able to secure our freedom of publication against Nutzwerk. However FFII is currently able to accomplish work of this scale only on a very limited number of high-priority issues.

The Internet has changed public communication. Numerous financially uninterested players participate in a self-regulating game of in-depth public discourse and long-term collective memory which did not exist in the paper-based media world. The judicial system is not adapting to these circumstances. On the contrary, many judges seem to be stubbornly asserting traditional overregulation against the new medium, thereby further exacerbating the imbalances. In order to report about some common inglorious corporate activities on the Net today, you should better be a media corporation. Unless you have allocated a big litigation budget in advance, free speech is today an irresponsible endeavour for any private person or association.

So far most companies still shy away from fully exploiting the repression potential which the "law" offers them. They stand to lose a reputation. Smaller players are not protected by the "law" but by social norms. The companies are normally too civilised to resort to "law". They know that society respects mimosas as little as defamators, and that usually there is no need for anyone to react harshly to criticism, unless there is a substantial amount of truth in that criticism. We were however just reminded by Nutzwerk that such social norms can not be relied upon. And much of what we hear from other organisers of net-based public sphere suggests that Nutzwerk's methods match a general trend.

The European Court for Human Rights (ECtHR) regularly demands effective protection for the freedom of expression, such that all limitations of this freedom must be justified as "necessary in a democratic society". By litigating all the way up to Strasburg, or even to the constitutional court in Karlsruhe, it is possible to obtain compensation for injustice, but this fact seems to have little influence on the practise of the district courts. The distribution of burdens, which in practise voids the legal protection of basic rights, seems to be too firmly rooted in the routine practise of the courts.

It is probably necessary to undertake special efforts so as to reestablish the freedom of expression for the Internat age. Lawmakers must ensure that constitutional declarations about "freedom of publication", "freedom of opinion" etc are filled with meaning. They must distribute the burdens and costs in such a way that this basic right, which, as the Strasburg court says, "constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment", is effectively guaranteed under the conditions of present-day communication.

Current RealityDemand
Plaintiff sues wherever he wants. Nutzwerk has opened 6 litigation procedures against FFII in 3 courts within a few months. Preliminary injunctions take the respondent by surprise. She can not file any counter-argument in advance, because she does not know which court will be in charge.For publication offenses, the court of the respondent is in charge.
The accuser and judge jointly plan an ambush attack. In their cease-and-desist letter, the Nutzwerk lawyers typically list 40-50 utterances which they claim to be "provenly wrong factual statements", without offering any reasoning, let alone "proof". The judge is offered a completely different, much better reasoned text which remains secret. After a possible private dialog with the plaintiff, the judge will issue a preliminary injunction based on this better text, also without reasoning. Neither the plaintiff nor the court explain to the respondent what is wrong with the listed statements. The respondent is taken completely by surprise. His attorney can then, after a written submission, obtain the written part of the private dialog between the plaintiff and the judge. He thereby obtains an entry ticket for a new strain litigation through several instances, which can not be consolidated into one even at the higher levels.Before any court procedure can begin, the plaintiff must visibly explain how the statements of the respondent are wrong and what would be correct. He must first do this in a public counter-statement on the same medium (Internet). By referencing this counter-statement in his own statement, the respondent can at least remove the urgency and thereby prevent a preliminary injunction. Any application for an injunction must be sent to the defendant not any later than to the court, which is designated on the injunction application. The designated court can only accept or reject the application as a whole.
Burden of proof on the publishing party. You are only allowed to publish statements which you are ready to "prove" in front of a court. Conclusive proofs exist only in the realm of mathematics. In jurisdiction, a "proof" is understood to be the kind of indication that can exonerate judges from their responsibility of subjective judgement. For this purpose, "witness proofs" are particularly useful. Thus the plaintiff must in particular bear the costs that are necessary for motivating witnesses to burden themselves with legal risks. If the plaintiff succedes in "proving" the correctness of his statements, the plaintiff compensates the witnesses for the time they spent in court but not for the cost risk which they incurred.Initial burden of proof on the plaintiff: he must explain credibly in a counter-statement how the statements of the respondent are wrong and what would be correct. A court decision to censor any statement requires at least a proof of untruth on the part of the plaintiff --- normally courts do not censor any statement but rather impose an obligation to link to a counter-statement. With a false counter-statement the plaintiff exposes himself to the same cost risks as the respondent.
Freedom of publication has a very low priority compared to "personality right". In practise the burdensome judicial system all but abolishes this freedom. Contrastingly, the "personality right" is, contrary to the normal social norms, expanded into a kind of right of the corporate mimosa personality.The distribution of costs and burdens reflects the priority of freedom of publication over "personality right". Protection of "personality right" is largely left to society and its informal norms. Law interferes only where this can be shown to be insufficient. Companies do not have "personalities".
Amounts in controversy like those in competition law, mostly 10,000 eur and above for each incriminated utterance, based on an assumed financial damage suffered by the company.The amount in controversy is based on the economic interest of the publishing party. In case of economically uninterested parties, a default low value is chosen. Higher values may be deemed appropriate for sensationalist big media (tabloids, TV).
Internet service providers and web authors can be pressured by letters from the lawyers of one party switch off services for or remove links to the other party. Such a letter imposes costs, such as a need to study complex issues, to consult with a lawyer, and risks, such as those of possibly lengthy court procedures, which are not compensated. The normal reaction is to disconnect the machine or remove the link. The same logic could in the extreme be used for switching off the whole Internet at the root server.Lawyers can only prosecute the main offendant identified by the court, such as the author of an incriminated page. "Co-offendants" such as Internet service providers or other authors who reference the text can only be prosecuted through court decisions, and such court decisions can be obtained only if the main offendant is not available for prosecution. Any decision to target a "co-offendant" must be taken by a court, and the co-offendant must be notified by the court without charge before any prosecution can begin.
The Nutzwerk attorneys reference court decisions which hold Internet content hosters responsible for removal of "illegal content" of which they have been notified.Criminal and civil publication offenses should be treated differently. Notification must be performed by a court.
Lawyers letters can be used to enforce forgery of history. Archives, discussion fora and other timestampted contents which wholly or primarily fulfill the function of historical archiving, have to be doctored after the fact, whenever lawyers threaten to impose legal costs.Time-stamped archives need to be specially protected from censorship demands. Archiving of history must be permitted as much as reporting about court orders which contain forbidden utterances. If nevertheless censoring is deemed necessary, if must be done in the same lenient way as with "co-offenders": only courts can be authorised to ask anything from archivers, and the costs for the procedure must be born by the courts or the plaintiffs.
The court wages a war of paper on the parties. It issues cryptic "cost determination decisions" and asks the respondent to pay unclearly specified sums in a short time. Only an attorney can understand the decisions. The court has no e-mail address. It can be talked to only via attorneys. If the respondent or his attorney is in vacataions, the judicial organs are quick to order punitive payment, account freezing and imprisonment of the respondent.At least when dealing with Internet publication offenses, lawcourts communicate via Internet. They issue proper invoices and answer questions of the parties. They use the coercive powers of the law with restraint, as any normal service provider would. If lawcourts feel that they can not afford civilised communication with the parties in an area, then that should be taken as an indication of overregulation in that area.
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