German Court Tells Wikimedia Foundation That It's Liable For Things Users Write
from the that's-a-problem dept
I've spent a bit of time in Germany over the past few years, and the entrepreneurial community there is really interesting. It's become a hot place for emerging startups and there's a lot of excitement, especially in Berlin. Similarly, it appears that a number of internet activists have been flocking to Berlin. So it's become a really vibrant community of folks trying to make the internet better.But the one thing that worries me quite a bit about the German internet scene is its very dangerous view of secondary liability -- in that German law and courts tend to lean towards blaming the intermediary for the actions of their users. I learned this the frightening way on stage at conference in Germany, under some very hot lights (in a decommissioned airport) where a somewhat angry questioner in the audience insisted that some comments written on Techdirt by some of our users were "illegal in Germany" and that, under German law, I was liable for them. He stood at the microphone with a laptop reading the comments and demanding I answer for them, despite never having even read those comments, let alone created them. I suddenly started mentally counting down the time until my flight home. I defended secondary liability (and basic free speech concepts) and was able to leave the country without problem (and have been back a couple times since then). However, as a few people explained to me on that trip, a real hindrance to innovation in Germany is this antiquated view of secondary liability whereby sites can almost always be declared liable for actions of their users.
It appears that this tragic view has struck again -- this time against the Wikimedia Foundation, the organization behind Wikipedia. The Higher Regional Court of Stuttgart, has found that the Foundation can be held liable for content on Wikipedia. In this specific case, someone argued that some Wikipedia content was libelous. While the court says that the organization doesn't need to proactively police its content, it does say that if anything has received any sort of complaint, suddenly the Foundation can be held liable.
Of course, this is a recipe for easy censorship. If you don't like something in Wikipedia, just file a complaint, and to avoid liability, the Wikimedia Foundation will have strong incentive to delete the contested language. Of course, this goes against nearly everything that Wikipedia stands for in terms of how content gets edited on the site. Even if legally required to, it's ridiculous for a German court to basically tell the Foundation that it needs to effectively delete passages of Wikipedia editors and then block that content from being put back. Rulings like this make true user-supported media operations legally difficult to maintain, and will increasingly scare top internet companies out of Germany.
If someone posted libelous information, go after them. Putting the blame on an intermediary isn't just misguided, but it also creates a strong chilling effect on innovation.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: germany, secondary liability, wikipedia
Companies: wikimedia foundation, wikipedia
Reader Comments
Subscribe: RSS
View by: Time | Thread
Oh hey, I got an idea...
Surely that won't cause a problem, right?
[ link to this | view in chronology ]
Re: Oh hey, I got an idea...
And oil and gas companies helped them to, by fueling the transportation methods of all those criminals.
We should also prosecute farmers for feeding criminals. If farmers starved criminals then there wouldn't be any criminals left!
[ link to this | view in chronology ]
Re: Re: Oh hey, I got an idea...
If you say to FedEx "I have a bomb and I want it delivered" that is a crime to ship that bomb.
If you try to launder money thru a bank and the bank suspects that you are doing that, they are liable for that.
The reason that Wikipedia is liable is that they are publishing it without checking the content.
[ link to this | view in chronology ]
So ootb is German. Suddenly a lot of things make sense now.
Ahem. Jokes apart, you could have replied that every bit of the site operation falls under American jurisdiction since TD has no operations in Germany and then proceeded to ask him if he would like to police thousands of comments daily looking for something that someone could subjectively think it's offensive to someone around Germany. You know, because everybody shares the same opinion.
Could this sort of behavior be due to knee jerk reactions to the Nazism?
[ link to this | view in chronology ]
Re:
I did point out the US jurisdiction. And further pointed out that if he believed that someone had made an incorrect statement that the great thing was that he and others could correct that ignorance.
Could this sort of behavior be due to knee jerk reactions to the Nazism?
The comment he was referring to was about Germany's Nazi past -- and, yes, I believe that some of this is a reaction to the country's history. They're (for very good reason!) quite sensitive over that subject, and have gone above and beyond in trying to prevent that sort of thing from happening again. That's a good thing, but it shouldn't lead to blaming third parties for comments, and it shouldn't lead to stifling free speech.
[ link to this | view in chronology ]
Re: Re:
Because that's the kind of thing Nazis would do.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Great News!
[ link to this | view in chronology ]
Re: Great News!
[ link to this | view in chronology ]
Nazism
[ link to this | view in chronology ]
Wikipedia reaction?
[ link to this | view in chronology ]
At the same time, I think that website owners should have a certain limited period of time to identify the libel content and to remove it within an appropriate period of time.
Website owners should be held libel if they don't take appropriate steps to ensure that its users aren't posting such content. After all, website owners cannot immediately remove some content while denying the ability to remove other similar libel content.
[ link to this | view in chronology ]
Re:
Posting something inflammatory is not illegal in the US.
Here's the thing, though. Determining if something is libelous isn't so easy. Insulting or defamatory remarks aren't necessarily libel -- in the US, truth is an absolute defense, and opinion is protected.
What you're saying is that website owners must incur the significant expense to research and/or get legal assistance to determine if something really should be taken down or not. In effect what you're asking for is the end of any real user comments or user-generated content except in forums run by major corporations who could afford it.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Actually quite a lot of people realise that the website administrator/owner should not be held LIABLE for that content posted by others. It has been explained many times at great length why this is such a bad thing, including in this article.
You do realise that liable and libel are two quite different words right?
[ link to this | view in chronology ]
Re: Re:
I actually suspect that this may be a spellchecker typo. I.e., the person types "lible", and the spellchecker autocorrects it to "libel", since that's a closer match (swap two letters rather than insert a letter) than "liable".
That's no excuse for not catching it on review before posting, but it would help explain the prevalence of the error.
[ link to this | view in chronology ]
Re:
Which makes you as silly as they are. this is the 21st century, there are literally thousands to millions of comments on a typical large website and it is as impractical and impossible to police their content as it is to police an individual on a sidewalk carrying on a conversation. Even if you delete a comment, or even bar a user, they can be back inside of 15 minutes under another name or repost their comment elsewhere on the site or in the article comments. Not to mention the fact that making a fuss inevitably ends up with the offending comments being driven to the top of the rankings and likely being reposted elsewhere on line.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Response to: kenichi tanaka on Dec 2nd, 2013 @ 10:33am
2) please learn the difference between "libel" and "liable". They are two different words that mean very different things.
3) bonus: learn how word endings can turn nouns into adjectives.
P.S. kudos for not using an apostrophe for possessive "its".
[ link to this | view in chronology ]
Re: Response to: kenichi tanaka on Dec 2nd, 2013 @ 10:33am
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Free speech, not strong in Europe
There are two or possibly more problems for Germany's ability to assert jurisdition.
(1) A US service provider is immune under § 230 of the CDA.
(2) The German law of libel is almost certainly violative of the First Amendment.
(3) The Speech Act bars enforcement of foreign libel judgments which are inconsistent with the First Amendment.
Just to give foreign libel laws the finger, we should set up US based libel zzones where foreign nationals can vent every libelous thought without fearing from their own country's laws.
In Germany, there is an idiotic cause of action allowing a family member to sue for defamation of a dead person, and even public institutions, the flag and the national anthem is protected from disparagement.
In other words, you can go to jail for saying bad things about the republic, president, flag and national anthem.
Similar fascist laws exist in almost other European countries.
Europe has no free speech tradition, and the First Amendment, § 230 in conjunction with Tor and IP obfuscation makes it easy to run free speech hosting from the US.
The only area where some European nations might be better is in regard to some hardcore pornography.
But political, racial, antireligious or offensive speech is more protected in the US by law than is the case in Europe.
[ link to this | view in chronology ]
Re: Free speech, not strong in Europe
Beijing Threatens "Severe" Retaliation Against Canada If Huawei CFO Is Not Released
https://www.zerohedge.com/news/2018-12-08/beijing-threatens-severe-retaliation-against-canad a-if-huawei-cfo-not-released
If you are a member of Wikipedia you risk arrest on an Euro Union Arrest Warrant if you are imprudent enough leave the US.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: wikipedia.de
[ link to this | view in chronology ]
Re: Re: wikipedia.de
Think of all the hacking cases: If a foreinger hack a computer in you country, do want that person to be liable according to your laws or the country shes in?
[ link to this | view in chronology ]
Re: Re: wikipedia.de
Lets just hope for your sake that it is not in some dark place where the sun does not shine.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Personal responsibility
[ link to this | view in chronology ]
Re: Personal responsibility
One reason why governments might want to get involved, however, is that it is easier for you to set up a campaign of libel against someone if you are rich and powerful. You can pay people and companies to spread the word, make advertisements. So that might be where a government might want to level the playing field, as it were.
[ link to this | view in chronology ]
Re: Personal responsibility
We have people here who are from almost every country.
All country base their laws on the moral and ethics of their respective society.
All countries believe that their laws are just and fair and that the internet fall within THEIR law.
The basic reasons for countries is that people in one reagon do not agree with people in another region on such things as language, moral ethics, and especially law.
If you have a situation, such as the internet, where every country claims control of, where the action being taken in one country fall under the law of ALL countries you have to expect that the simplest of expressions posted in one country fall fail of the law in some other country you basically have chaos.
Give you a good example. Twenty something good looking girl wares bikini. Picture is posted to internet. There is at least one quarter of the world will declare that the picture is pornographic and that her and the poster should go to jail. If the poster is in this quarter most likely it is off to jail. If the poster is not in that quarter it would not be a wise thing to go into the banning quarter as they would risk going off to jail. The beliefs of Europe and the US are not comparable with the banning quarter.
What I do not get is why people on this list assume that the laws in there country are the only concept of law and make all these stupid computer level, binary type - one or zero, level proclamations that they are right and everyone else is wrong.
[ link to this | view in chronology ]
"All countries believe that their laws are just"
Refuted in the preamble of the Constitution of the United States, ...in order to form a more perfect union...
This is to say our constitutional framers were aware of quite the opposite, that the foundation laws of the US were not perfect at all (and in fact, were the product of compromise between differing ideologies).
Here in the US, those of us who are not fanatical jingoist patriots are aware that our system of laws is (and has always been) a hot mess, only slightly less of a hot mess than the constitutional monarchy from which we came. And nowadays that even that might be challenged.
To the contrary, we have numerous changes we could make by which the Constitution of the United States could be made indisputably better, if only we had the capacity to change it from within the system. (We don't have that capacity, even though there is allegedly a process.)
Our laws aren't just, and our law enforcement doesn't even bother to do its job of enforcing them.
So, this nation is at least one counterexample.
[ link to this | view in chronology ]
Wikipedia has a responsibility to follow the laws of other countries and if a court finds that a website can be held liable then the owner of that website either needs to block Germany from accessing Wikipedia or start monitoring what its users are posted.
For those who say that Wikipedia doesn't do this, your argument is non-existent. Because Wikipedia already logs every change made to its website and they have thousands of assigned moderators and editors who actively monitor their website.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Excellent suggestion. Wikipedia should not be forced to operate under legal threat from one country with outdated laws on secondary liability. Perhaps if Wikipeia was blocked in Germany for a while, a couple of million grumpy German Wikipedia fans might be able to show the government the error of their ways.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
That should be interesting ^^
[ link to this | view in chronology ]
Wikipedia NEVER DELETES ANYTHING EVER.
It's going to present some interesting problems if courts hold Wikimedia accountable for what's in their archives.
Frankly, I think blocking Wikipedia from German access for a month would probably solve the problem right quick.
As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Monday, December 02, 2013 11:30:06 AM
lover rescue massage toothbrush bowl religion parish beard
[ link to this | view in chronology ]
Re: Wikipedia NEVER DELETES ANYTHING EVER.
Normal Wikipedia admins can delete not only whole pages, but also previous versions of it, selectively. In the past, this was done by deleting the whole page and undeleting all the revisions except the ones you wanted to hide; I believe there is a simpler method now. Other Wikipedia admins can see the deleted content, and undo the deletion if it was made in error.
Oversight goes deeper than that. Not even Wikipedia admins can see content that was oversighted. Only a select few have access to the oversight system.
[ link to this | view in chronology ]
Re: Wikipedia NEVER DELETES ANYTHING EVER.
[ link to this | view in chronology ]
Re: Wikipedia NEVER DELETES ANYTHING EVER.
[ link to this | view in chronology ]
Re:
The problem is that all Germany's laws regulating free speech fall short of American standards.
This goes back even further than 1945.
Defamation is not only civilly actionable but a crime for which you may go to jail.
Germany has the strange notion of collective defamation -- statements impugning the reputation of a group without the statement being of and concerning an identifiable person.
So sayin that lawyers are criminals, or that Poles are monkeys is likely legally actionable.
Under the First Amendment only an identifiable indivvidual may recover for defamation, and if the said is on a matter of public concern the plaintiff must prove the implied fact is false.
But Germany is not alone. The UK, France, and virtually every other nation in Europe censors speech to
an extend unthinkable in the US.
[ link to this | view in chronology ]
This all started with bit torrent and filesharing sites. Did anyone honestly believe that courts would keep that contained to just filesharing sites?
[ link to this | view in chronology ]
Re:
Not in the United States.
https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act
You realize (well maybe you don't, based on your previous comments) that you wouldn't have been able to post your comment here without Section 230 in place, right? Web 2.0 wouldn't exist at all because of the liability concerns.
[ link to this | view in chronology ]
Re:
How does inappropriate content behave?
"then the owner of the site SHOULD be held liable"
Why? You state that it's happening, but you don't give any reason why this is acceptable.
"Did anyone honestly believe that courts would keep that contained to just filesharing sites?"
No, which is one of the many reasons why I opposed the actions then, even in the face of lies about my motives for doing so. Sadly, my opinions and votes have no sway over German court decisions.
[ link to this | view in chronology ]
German justice system
What is more, I would not expect a German court to ever actually punish you if there is content on your website that is libelous, unless you ignore the verdict. And the verdict will always be "now that the other party has provided real proof that this is libelous, you must remove the content within x days or pay a daily fine". So for you, as a website, it is always safe to not act on complaints unless the a judge tells you to. So there is a significant barrier for complainants.
Further, it is easier and less expensive to defend yourself in a German court: courts are more active than in the common-law system, so you probably won't have to do anything if the complainant has no real proof accepted by the court as such: then the judge will acquit you. I imagine in some other countries you may be convicted if you do nothing, even if the complainant can't really prove anything.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:German justice system
Under the German Criminal Code, insults to honor and defamation of the dead is punishable, whereas in the United States only false statements of facts may be punishable.
So in the US, you can legally state that someone who is dead was a nazi war criminal, but in Germany you may be sued or even imprisoned for defaming a dead person.
Also refer to § 90 of the German Criminal Code.
[ link to this | view in chronology ]
Selective Enforcement?
So, did the German authorities then rush up and arrest the owner of the microphone? Or does such liability just apply to Americans?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
libel, and the owner of that website does not take adequate measures to remove that content, then the website administrator/owner SHOULD be held libel
for that content.
Fortunately, it is not the law in the US.
Read § 230 of the CDA and the caselaw interpreting it.
An online service has absolute, and it's absolute, immunity from civil liability for content written by others.
And this is good, because even if someone makes a complaint, the online service can't know if a statement is libelous.
Under the First Amendment, tarnishing another's reputation or good name is not actionable, unless the statement implies a matter of fact capable of being proven true or false.
If the person is a public figure, or the matter is of public concern, the plaintiff must always prove the allegation is false.
if I run a forum, and a user posts a message claiming that John Doe is a pedophile, drug addict or tax cheater, I have no opportunity to ascertain truth or falsit, and there is no easy way by which truth or falsity can be deduced from the message.
Nor should it be my problem.
Of course, if the law of defamation is different -- putting the burden on the defendant to prove truth or good faith -- I could see the point in requiring the owner to take adequate action.
[ link to this | view in chronology ]
Re: Re:
Several people in this thread have stated so, but I've never heard a compelling argument as to why this should be. You then contract yourself here:
"Nor should it be my problem."
So, which is it? Should it be your problem (in which case, why?) or not? If you're just saying it's right in Germany but not right in the US, why do you support this difference?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Liable...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
And stifling unpopular speech won't make it go away, it simply drives it underground.
Authoritarianism is a real threat to freedom and democracy. Let's not let their mealy-mouthed excuses convince us otherwise.
[ link to this | view in chronology ]
I disagree, wikipedia shouldn't block Germany but simply ignore the government.
[ link to this | view in chronology ]
This decision sure has created a furor. Nyuk, nyuk, nyuk….
[ link to this | view in chronology ]
Then go think again what makes sense in this time and age and what doesn't.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Food for thought
To summarise the content of the article, a website is facilitating an anonymous attack of a third party by an unspecified user, and the author of the article wants to see this practice protected, particularly in the jurisdiction of the alleged victim and giving the victim appropriate rights to defend itself.
How is the threatened subject going to defend itself against a cowardly attacker who is hosted or protected by somebody else? The USA under G.W. Bush and Barack Obama knew the answer and it wasn't by advice from Germany.
Clearly, service or product providers have to be held accountable for the information they are facilitating or helping of spreading, or alternatively they can go after or disclose the source of the threatening information.
In this sense, the author could have simply said 'I am only the service provider of information, and the unaffiliated voice behind those allegedly illegal comments is the *identified user* named ...' This is exactly how the Swiss banks are resolving the pressure by the US government in the banks' facilitation of tax evasion under US law. And neither the US nor the Swiss are acting by advice from Germany.
[ link to this | view in chronology ]