In Germany, a new treaty on gambling might open the door to Internet filtering

An inter-state treaty that will overhaul Germany’s gambling regulation could prove a threat to the open net. Should a recent draft be adopted, ISPs would be obliged to prevent users from accessing unauthorized gambling websites, which critics fear will mean the establishment of a censorship infrastructure that would breach constitutional rights.

A draft of the treaty (in German) sent to the European Union for approval in April includes a paragraph which has been widely interpreted as a provision for the introduction of Internet filtering as a means of blocking out foreign and unlicensed gambling websites:

"Die Glücksspielaufsicht kann [...] Diensteanbietern im Sinne des Telemediengesetzes, insbesondere Zugangsprovidern und Registraren, nach vorheriger Bekanntgabe unerlaubter Glücksspielangebote die Mitwirkung am Zugang zu den unerlaubten Glücksspielangeboten untersagen."

[Transl.] "The gambling superintendent can [...], after prior publication of unauthorized gambling services, interdict service providers in the sense of the tele-media act, in particular access providers and registrars, participation in providing access to unauthorized gambling services."

Commenting on an earlier draft of the same treaty, the Chaos Computer Club (in German) had warned that Internet service providers might be forced to implement deep packet inspection in order to prevent clients from accessing foreign gambling websites. In particular, mention of an impact on the constitutional right to telecommunications secrecy, meaning that content information would be accessed, makes an intention to introduce deep packet inspection plausible.

The new gambling treaty has to be signed by 13 of Germany’s 16 federal states to become effective. So far, the issue has raised controversy in a range of states governed by coalitions of Greens and Social Democrats (SPD). In Northrine-Westphalia, prime minister Hannelore Kraft and minister of the interior Ralf Jäger (both SPD) have voiced support (in German) for website blocking, while Greens MP Matthi Bolte (in German) has repeated his party’s commitment against website blocking.

The issue has become particularly controversial in Northrine-Westphalia when recently it was discovered that for more than a year, there are already two district-level blocking orders (in German) against gambling websites. These were based on the old gambling treaty, but have been disputed in court by the two ISPs in concern. As a Telekom speaker explained, the company perceives website blocking as requiring an unconstitutional breach of telecommunications secrecy.

In another state, a coalition of Christian Democrats (CDU) and Liberals (FDP) have decided to abandon the treaty altogether (in German). Unhappy with a clause that would restrict the number of nationwide licenses for the operation of sport betting services, Schleswig-Holstein will enact its own, liberalized legislation, which will presumably not include any provisions for website blocking.

Activists have reacted alarmedly to the threat of website blocking. Early on, Benjamin Stöcker of the working group on censorship (in German) warned that “we experience another attempt to establish censorship infrastructure in Germany.” Stöcker was in particular referring to earlier efforts to introduce website blocking in the fight against child pornography, since discontinued, which have largely been accepted as ineffective by members of all parties.

On a meeting today, the prime ministers of the federal states decided to delay a final decision (in German) on the gambling treaty to October. Whether website blocking is still provided for in the current draft is not clear, but has likely to be expected.

Germany’s federal states had to negotiate a new gambling treaty subsequent to a September, 2010 decision by the European Court of Justice, in which the judges ruled that the existing state monopoly on sport betting was no longer justified.