BVerwG confirms ban on linksunten.indymedia

As a rule, only the prohibited association itself is entitled to challenge the prohibition of an association, not, however, association members or third parties. Upon the complaints of individual persons belonging to the prohibited association of persons, it can only be examined whether the prohibited association is subject to the Law on Associations and has the structural features specified in the Law on Associations. A further examination of the legality of the ban on the association, in particular of the existence of the substantive grounds for the ban, can only be considered in response to an action brought by the banned association itself. This was decided by the Federal Administrative Court in Leipzig.

Key Facts

• Challenging the ban: Only the banned association itself can challenge the ban, not members of the association or third parties.
• Legal action: Individuals can check whether the law on associations is applicable, not the legality of the ban itself.
• Ruling of the Federal Administrative Court: Lawsuits against the ban on "linksunten.indymedia" were dismissed, association law applies.
• Purpose of the association: The association aims to create a left-wing counter-public and network social movements.
• Freedom of expression: The ban on associations may not be based on expressions of opinion that are protected by Article 5 of the Basic Law.
• Review: It was not possible to examine the substantive grounds for prohibition due to other aspects asserted.
• Association remains in existence: linksunten.indymedia fulfilled the legal requirements and still existed at the time of the prohibition order.

By decision of August 14, 2017, the Federal Ministry of the Interior banned the association “linksunten.indymedia”. He is said to have operated the Internet portal “linksunten.indymedia.org,” which, according to the statement in the ban notice, is the most important platform of violence-oriented left-wing extremists in Germany. The prohibited association pursues purposes contrary to the criminal laws and is directed against the constitutional order. According to the assessment of the prohibition authority, the plaintiffs were members of “linksunten.indymedia”. In their action, they are seeking the annulment of the prohibition notice. Among other things, they argue that the Law on Associations should not be instrumentalized to ban a news portal.

The Federal Administrative Court dismissed the claims. Individuals may appeal against a ban on an association only to the extent that they claim a violation of their rights guaranteed by Article 2 para. 1 of the Basic Law to continue to operate together in the same way as before. This alone justifies the judicial examination as to whether the Associations Act is applicable and whether an association within the meaning of this Act exists. A complete review of the legality of the ban on the association can only be achieved by the association itself. This is because the prohibition order is merely aimed at collectively guaranteeing freedom of association (Article 9 (1) of the Basic Law). The individual guarantees of fundamental rights take a back seat to this, because the members can only act within the framework of the collective formation of will in the association.

The law on associations is applicable here because it also covers organizations whose purpose is press activities within the meaning of Art. 5 Para. 1 sentence 2 GG is. The media’s special right to protection must be taken into account when examining the grounds for prohibition, in particular the proportionality of the prohibition. The ban on associations may not be based on expressions of opinion that violate the protection of freedom of opinion under Article 5 para. 1 sentence 1 GG enjoy.

According to the content of the self-representations, the prohibited association fulfills the legal requirements of the concept of association. linksunten.indymedia” is an association that several people voluntarily joined together at the founding meeting in 2008 for the common purpose of creating a “left-wing counter-public” through the operation of the Internet platform and to network social movements more strongly at the local level as well. The Association has organized its activities on the basis of division of labor and the members have accepted the results of the autonomously organized formation of wills as binding for themselves. The association continued to exist at the time of the prohibition order.

The required review of the existence of the substantive grounds for prohibition was also not possible with regard to other aspects asserted by the plaintiffs.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.