Physical presence is necessary, argues German government - not quite convincingly - in online demonstration case

Do demonstrators need to leave their computer to be 

protected  by human rights law? Yes, says the German 

government.  (c) Kettemann  [Rome, 2011]

As I wrote here on 24 July 2012, German MPs from the Left party, have  asked the German government to provide information on the prosecution of teenagers who had participated, in June 2012, in a virtual protest action against the German music industry rights management company GEMA.

Summing up the questions I wrote that the 

MPs argued that the action was not "Computersabotage" (computer sabotage, as penalized by the German Criminal Code), but rather a „eine Protestaktion, die die Kriterien einer Onlinedemonstration erfüllt“ ["a protest, that meets the criteria for online demonstrations"]."

As Thomas Pany reports on heise.de, the German federal government has now responded in the negative: Though not all DDos attacks necessarily amount to crimes, only 'real' meetings are protected by the constitution's guarantee of freedom of assembly.

"Was die Frage des Versammlungsrechts angeht, so ist darauf hinzuweisen, dasseine Versammlung im Sinne von Artikel 8 des Grundgesetzes die gleichzeitigekörperliche Anwesenheit mehrerer Personen an einem Ort erfordert. MangelsKörperlichkeit sind virtuelle Versammlungen etwa im Internet daher im verfassungsrechtlichen Sinne keine „Versammlungen“."

The government thus interprets the Constitution to only protect assemblies characterized by the "simultaneous physical presence of a number of people at one place". Due to the lack of physicality virtual assemblies are not "assemblies" in the constitutionally protected sense.

But as Thomas Pany rightly argues, the federal government does not inform us why they are so sure that physical presence is necessary for a demonstration to be protected by the constitution. 

After all, we need to read national human rights clauses it in light of European and international human rights guarantees and the recent resolution of the HRC that calls on states to apply offline human rights to online environments.

Let us recall that Internet's central freedom - freedom of expression - is technologically neutral. Pursuant to Article 19 of the UDHR, expressions "through any media" are protected.

Further, Article 20 UDHR protects the righ to freedom of peaceful assembly. It knows no specific exceptions. It does not demand corporal presence.

Similarly, Article 21 of the ICCPR protects the "right of peaceful assembly". The article contains exceptions, but not related to the physicality of the protest:

"No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

In aplying the similarly worded Article 11 of the ECHR, the European Court of Human Rights has protected the meeting of people to exchange or express views (cf. ECtHR 21 June1988 - Ärzte für das Leben/Austria). On a first glance, online meetings - targeted at exchanging views and expressing them - could also be protected. Though I will have to look some more into the questions of how 'organized' a distributed DoS action would have to be to meet this level.

To sum up: I would not be quite as sure as the German government is that freedom of assembly in the Internet age demands physical presence.

On a less serious note: Perhaps playing "A Physcial Presence" during online demonstrations might help?