Germany's Supreme Court Confirms That Adblocking Is Legal, In Sixth Consecutive Defeat For Publishers

from the never-gonna-give-you-up dept

Adblocking is something that many people feel strongly about, as the large number of comments on previous posts dealing with the topic indicates. Publishers, too, have strong feelings here, including the belief that they have a right to make people view the ads they carry on their sites. (Techdirt, of course, has a rather different position.) In Germany, publishers have sued the makers of AdBlock Plus no less than five times -- and lost every case. It will not surprise Techdirt readers to learn that those persistent defeats did not stop the German media publishing giant Axel Springer from trying yet again, at Germany's Supreme Court. It has just lost. As Adblock Plus explains in a justifiably triumphant blog post:

This ruling confirms -- just as the regional courts in Munich and Hamburg stated previously -- that people have the right in Germany to block ads. This case had already been tried in the Cologne Regional Court, then in the Regional Court of Appeals, also in Cologne -- with similar results. It also confirms that Adblock Plus can use a whitelist to allow certain acceptable ads through.

Reuters notes that Springer's case was just the first of five against Adblock Plus to reach the Supreme Court in Germany, although the others are presumably moot in the light of this definitive decision. However, that does not mean Springer is giving up. There remains one final option:

Springer said it would appeal to the [German] Constitutional Court on the grounds that adblockers violated press freedom by disrupting online media and their financial viability.

Yes, that's right: if you are using an adblocker, you are a bad person, who hates press freedom....

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Filed Under: adblocking, germany, legal
Companies: adblock plus, axel springer

Inverting The Expected Order Of Things, German Court Orders Facebook To Reinstate 'Offensive' Content

from the just-keeping-things-unpredictably-dystopian dept

Germany's ridiculous hate speech law continues to wreak havoc in the stupidest ways possible. Giving social media companies 24 hours to remove poorly-defined "offensive" content has resulted in proactive removals targeting anything marginally questionable. Official complaints aren't much better. Government demands for removal have been no less idiotic than proactive deletions by Facebook and Twitter.

It's a bad law. The only way bad laws can be followed is badly. Facebook is dealing with something new, thanks to its adherence to its own content policies. It's an argument over deleted content, but the push/pull tension has been reversed.

A Berlin court has ordered Facebook not to block a user and not to delete a comment made by that user, even though it breached the social network's community standards.

This order follows a legal complaint by Facebook user "Gabor B." The court will still allow Facebook to argue in its defense, but it wants the content reinstated while this is sorted out. Facebook, following its internal content rules, decided Gabor B's insults weren't the sort of content it was willing to host.

"The Germans are becoming ever more stupid," Gabor B's comment, posted in January, read. "No wonder, since they are every day littered with fake news from the left-wing Systemmedien about 'skilled workers', declining unemployment rates or Trump."

Systemmedien can be inelegantly translated as 'system media'. The phrase carries echoes of the term Systempresse, or 'system press', that was used by the Nazis before they came to power.

Gabor B had his post deleted and his account suspended. He took his complaint to the German court which now wants Facebook to violate its own policies to restore Gabor B to his rightful position of truth-to-power-speaker or whatever. This isn't what's expected from the German government, which has spent much of its time trying to find new ways to limit free expression by Germans.

But there is internal consistency, even if it's not readily apparent. The German government feels its laws trump Facebook's policies. This applies even when Facebook's content policies are more restrictive than German law. That's why it demands takedowns of posts violating its speech laws (but not Facebook policy) and demands the restoration of posts violating Facebook policies (but not German law). Unfortunately, applying German speech laws consistently is almost as terrible as applying them inconsistently. In both cases, Facebook moderation policies no longer matter.

The only way out of this mess is to handle this with logic. If a German Facebook user has violated a German law, the German government can go after the user, not the platform hosting the content. Instead, the law holds Facebook responsible for users' posts -- to the tune of €50m a violation. The law prompts overzealous deletion and the courts seem willing to punish Facebook for trying to remain in compliance. Facebook's more stringent moderation standards are a natural response to multiple governments with different free speech ideals all pushing their own agendas. Punish the wrongdoers, not the intermediaries, and you won't have these problems.

Filed Under: gabor b, germany, hate speech, insults, offensive content, social media
Companies: facebook

Crowdfunded OpenSCHUFA Project Wants To Reverse-Engineer Germany's Main Credit-Scoring Algorithm

from the opening-the-black-boxes dept

We've just written about calls for a key legal communications system to be open-sourced as a way of re-building confidence in a project that has been plagued by problems. In many ways, it's surprising that these moves aren't more common. Without transparency, there can be little trust that a system is working as claimed. In the past this was just about software, but today there's another aspect to the problem. As well as the code itself, there are the increasingly-complex algorithms, which the software implements. There is a growing realization that algorithms are ruling important parts of our lives without any public knowledge of how they work or make decisions about us. In Germany, for example, one of the most important algorithms determines a person's SCHUFA credit rating: the name comes from an abbreviation of its German "Schutzorganisation für Allgemeine Kreditsicherung", which means "Protection Agency for General Credit Security". As a site called Algorithm Watch explains:

SCHUFA holds data on round about 70 million people in Germany. That's nearly everyone in the country aged 18 or older. According to SCHUFA, nearly one in ten of these people living in Germany (some 7 million people) have negative entries in their record. That's a lot!

SCHUFA gets its data from some 9,000 partners, such as banks and telecommunication companies. Incredibly, SCHUFA doesn't believe it has a responsibility to check the accuracy of data it receives from its partners.

In addition, the algorithm used by SCHUFA to calculate credit scores is protected as a trade secret so no one knows how the algorithm works and whether there are errors or injustices built into the model or the software.

So basically, if you are an adult living in Germany, it's a good chance your financial life is affected by a credit score produced by a multimillion euro private company using an automatic process that they do not have to explain and an algorithm based on data that nobody checks for inaccuracies.

A new crowd-sourced project called OpenSCHUFA aims to change that. It's being run by Algorithm Watch and Open Knowledge Foundation Germany (full disclosure: I am an unpaid member of the Open Knowledge International Advisory Council). As well as asking people for monetary support, OpenSCHUFA wants German citizens to request a copy of their credit record, which they can obtain free of charge from SCHUFA. People can then send the main results -- not the full record, and with identifiers removed -- to OpenSCHUFA. The project will use the data to try to understand what real-life variables produce good and bad credit scores when fed into the SCHUFA system. Ultimately, the hope is that it will be possible to model, perhaps even reverse-engineer, the underlying algorithm.

This is an important attempt to pry open one of the major black boxes that are starting to rule our lives. Whether or not it manages to understand the SCHUFA algorithm, the exercise will provide useful experience for other projects to build on in the future. And if you are wondering whether it's worth expending all this money and effort, look no further than SCHUFA's response to the initiative, reported here by netzpolitik.org (original in German):

SCHUFA considers the project as clearly directed against the overarching interests of the economy, society and the world of business in Germany.

The fact that SCHUFA apparently doesn't want people to know how its algorithm works is a pretty good reason for trying to find out.

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Filed Under: algorithms, credit scores, germany, open source, schufa

German Lawyers Call For Their Profession's Bug-Ridden, Soon-To-Be Mandatory, Email System To Be Open Sourced

from the public-trust,-public-code dept

Given the sensitive nature of their work, lawyers need to take particular care when communicating online. One way to address this -- quite reasonable, in theory -- is to create a dedicated system with strong security built in. That's the route being taken by Germany's Federal Bar Association (Bundesrechtsanwaltskammer -- BRAK) with its "besondere elektronisches Anwaltspostfach" (special electronic mailbox for lawyers, or beA). However, the reality has not matched the theory, and beA has been plagued with serious security problems. As a post on the Free Software Foundation Europe (FSFE) site explains (original in German)

Numerous scandals and a questionable understanding of security characterize the project, which has been in development for several years. Lawyers should have been reachable through this software since January 1, 2018, but numerous known vulnerabilities have prevented the planned start of the service.

...

Although a security audit was commissioned and carried out in 2015, its scope and results have not been published to date; the full extent of the faulty programming became known only at the end of 2017. Thus the project, which has cost lawyers so far about 38 million euros, has already lost people's trust. In view of the numerous errors, the confidentiality of the sent messages can no longer be guaranteed -- and this is for software whose use from 2022 onwards becomes mandatory for all court documentation traffic.

Because of the continuing lack of transparency about the evident problems with the project, a number of German lawyers are supporting a petition that asks for an alternative approach, reported here by the Open Source Observatory:

The petition calls on Germany's Bundesrechtsanwaltskammer (Federal Bar Association, or BRAK) to publish the beA software under a free and open source software licence and open the software development process. "Only in this way can it slowly restore the trust of the users -- all lawyers, authorities and courts," the petition says.

As the petition notes (original in German):

Disclosure of the program code allows independent IT professionals to report potential security vulnerabilities early on so that they can be fixed; it has been shown once more that keeping the source code secret, and carrying out the audits as agreed in the contract [for creating the beA system] does not lead to the desired result. Free software also guarantees much-needed manufacturer independence.

Over and above the increased transparency that open-sourcing the beA code would bring, and the hope that this would allow security issues to be caught earlier, there is another good reason why the German system for lawyers should be released as free software. Since it will perform a key service for the public, it is only right for representatives of the German public to be able to confirm its trustworthiness. This is part of a larger campaign by the FSFE called "Public Money, Public Code", which Techdirt wrote about last year. Unfortunately, what ought to be a pretty uncontroversial idea still has a long way to go, as the painful beA saga demonstrates.

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Filed Under: germany, lawyers, open source

Project Gutenberg Blocks Access In Germany To All Its Public Domain Books Because Of Local Copyright Claim On 18 Of Them

from the worse-to-come dept

Project Gutenberg, which currently offers 56,000 free ebooks, is one of the treasures of the Internet, but it is not as well known as it should be. Started in 1991 by Michael S. Hart, who sadly died in 2011, Project Gutenberg is dedicated to making public domain texts widely available. Over the last 25 years, volunteers have painstakingly entered the text of books that are out of copyright, and released them in a variety of formats. The site is based in the US, and applies US law to determine whether a book has entered the public domain. Since copyright law is fragmented and inconsistent around the world, this can naturally lead to the situation that a book in the public domain in the US is still in copyright elsewhere. To deal with this, the site has the following "terms of use":

Our eBooks may be freely used in the United States because most are not protected by U.S. copyright law, usually because their copyrights have expired. They may not be free of copyright in other countries. Readers outside of the United States must check the copyright terms of their countries before downloading or redistributing our eBooks. We also have a number of copyrighted titles, for which the copyright holder has given permission for unlimited non-commercial worldwide use.

That approach seemed to be working, at least until this happened to the Project Gutenberg Literary Archive Foundation (PGLAF):

On December 30, 2015, PGLAF received notification that a lawsuit had been filed in Germany against it, and its CEO. The lawsuit was concerned with 18 eBooks, by three authors, which are part of the Project Gutenberg collection.

The lawsuit was filed in the Frankfurt am Main Regional Court, in Germany.

The Plaintiff is S. Fischer Verlag, GmbH. Hedderichstrasse 114, 60956 Frankfurt am Main, Germany. They are represented by the law firm, Waldorf Frommer of Munich.

The essence of the lawsuit is that the Plaintiff wants the 18 eBooks to no longer be accessible, at least from Germany. It also seeks punitive damages and fines.

Based on legal advice from its US attorneys, PGLAF declined to remove or block the items. The lawsuit proceeded, with a series of document filings by both sides, and hearings before the judges (all of which occurred in German, in the German court). PGLAF hired a German law firm, Wilde Beuger Solmecke, in Köln, to represent it in Germany.

On February 9 2018, the Court issued a judgement granting essentially all of the Plaintiff's demands.

Court's original decision (in German). [pdf]

Decision translated into English. [pdf]

PGLAF complied with the Court's order on February 28, 2018 by blocking all access to www.gutenberg.org and sub-pages to all of Germany.

The German court agreed with the publisher that since people in Germany could access Project Gutenberg files stored in the US, and freely download the 18 ebooks in question, they were making unauthorized copies in Germany, even though they had entered the public domain in the US. A recent EU-funded study showed that unauthorized copies have almost no effect on sales, and can even be beneficial, so it is likely that the German publisher in this case suffered negligible losses as a result of these downloads. This legal action is evidently more about enforcing copyright to the hilt, than about seeking redress for serious harm suffered.

The most famous among the three authors mentioned in the lawsuit, Thomas Mann, died in 1955, so his writings will enter the public domain in Germany in 2025. The fact that the publishing house is trying to stop Project Gutenberg from distributing works written between 1897 and 1920 (listed in the court documents above) shows how absurdly long the term of copyright has become -- the first modern copyright law envisaged just 14 years' protection. The lawsuit also underlines that it is always the longer copyright term that trumps a shorter one, never the other way around.

There's another important point that this case raises. As the Project Gutenberg page on the lawsuit explains:

PGLAF is a small volunteer organization, with no income (it doesn't sell anything) other than donations. There is every reason to fear that this huge corporation, with the backing of the German Court, will continue to take legal action. In fact, at least one other similar complaint arrived in 2017 about different books in the Project Gutenberg collection, from another company in Germany.

Project Gutenberg's focus is to make as much of the world's literature available as possible, to as many people as possible. But it is, and always has been, entirely US-based, and entirely operating within the copyright laws of the US. Blocking Germany, in an effort to forestall further legal actions, seems the best way to protect the organization and retain focus on its mission.

This is a classic example of the chilling effect of heavy-handed moves by the copyright industry. In order to forestall further legal action, organizations lacking resources to stand up to legal bullying often decide it is safer to over-block. In this case, the whole of Project Gutenberg is now inaccessible to people in Germany. That's a serious loss of an important public domain resource, but it's just a taste of what could become routine in Europe.

As Techdirt has reported, there is a new Copyright Directive currently working its way through the EU legislative process. One of its key elements, Article 13, is a requirement for all major sites that make user-uploaded material available to filter those beforehand to remove possible copyright infringements. Such an upload filter would not only represent a gross invasion of privacy, but could lead to sites opting to block access to users in the EU when they receive legal threats for not filtering certain material, rather than contesting the claim in court. The Gutenberg Project's experience should stand as a warning to EU politicians not to allow the copyright industry to take away people's rights to privacy and freedom of expression in this way.

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Filed Under: copyright, eu, geoblocking, germany, michael hart, project gutenberg, public domain, thomas mann
Companies: project gutenberg

German Court Says Facebook's Real Names Policy Violates Users' Privacy

from the really? dept

With more and more people attacking online trolls, one common refrain is that we should do away with anonymity online. There's this false belief that forcing everyone to use their "real name" online will somehow stop trolling and create better behavior. Of course, at the very same time, lots of people seem to be blaming online social media platforms for nefarious activity and trollish activity including "fake news." And Facebook is a prime target -- which is a bit ironic, given that Facebook already has a "real names" policy. On Facebook you're not allowed to use a pseudonym, but are expected to use your real name. And yet, trolling still takes place. Indeed, as we've written for the better part of a decade, the focus on attacking anonymity online is misplaced. We think that platforms like Facebook and Google that use a real names policy are making a mistake, because enabling anonymous or pseudononymous speech is quite important in enabling people to speak freely on a variety of subjects. Separately, as studies have shown, forcing people to use real names doesn't stop anti-social behavior.

All that is background for an interesting, and possibly surprising, ruling in a local German court, finding that Facebook's real names policy violates local data protection rules. I can't read the original ruling since my understanding of German is quite limited -- but it appears to have found that requiring real names is "a covert way" of obtaining someone's name which raises questions for privacy and data protection. The case was brought by VZBZ, which is the Federation of German Consumer Organizations. Facebook says it will appeal the ruling, so it's hardly final.

On the flip side, VZBZ is also appealing a part of the ruling that it lost. It had also claimed that it was misleading for Facebook to say that its service was "free" since users "pay" with their "data." The court didn't find that convincing.

It will certainly be interesting to see where the courts come out on this after the appeals process runs its course. As stated above, I think the real names policy is silly and those insisting that it's necessary are confused both about the importance of anonymity and the impact of real names on trollish behavior. However, I also think that should be a choice that Facebook gets to make on its own concerning how it runs its platform. So I'm troubled by the idea that a government can come in and tell a company that it can't require a real name to use its service. If people don't want to supply Facebook with their real name... don't use Facebook.

But, honestly, what's really perplexing is that this is all coming down at the same time that Germany -- especially -- has been trying to crack down on any "bad content" appearing on Facebook, demanding that Facebook wave a magic wand and stop all bad behavior from appearing on its site. I'd imagine that's significantly harder if it has to allow people to use the site anonymously. This is not to say that anonymity leads to more "bad" content (see above), but it certainly can make moderating users much more difficult for a platform.

So, if you're Facebook, at this point you have to wonder just what you have to do to keep the service running in Germany without upsetting officials. You can't let anything bad happen on the platform, and you can't get user's names. It increasingly seems that Germany wants Facebook to just magically "only allow good stuff" no matter how impossible that might be.

Filed Under: anonymity, data protection, free speech, germany, privacy, real names
Companies: facebook, fzbz

Quack Doctor Treating Cancer With Baking Soda Sues Skeptic For Questioning Her Cancer Treatment Methods

from the playing-the-'batshit-crazy-German-law'-wildcard dept

Very little attracts legal threats faster than someone calling a quack a quack. If it energizes tap water like a duck and promotes off-label use of dangerous drugs like a duck, it's probably a duck. The legal history of "alternative" medical practices is littered with cease-and-desist orders and failed lawsuits. The legal present is just as cluttered.

Blogger/skeptic Britt Hermes could have gone down the road to quack infamy. She was on the "naturopathic" career path when she came to the realization the whole things was horseshit. Rather than exploit the horseshit to make sick people sicker, Hermes decided to let the world know just how much horseshit her former colleagues were peddling.

One of her targets is Colleen Huber, an Arizona naturopath who is in the process of duping cancer patients out of their health, if not their lives. Here's what Hermes has to say about Huber:

Colleen Huber does not use conventional chemotherapy or radiation. She treats cancer with intravenous baking soda, vitamin C, and other “natural” substances, while instructing patients to cut out sugar from their diets. She thinks sugar feeds cancer.

Steven Novella, who has stared down lawsuits filed by angry quacks, has more to say about Huber's dubious treatments and even more dubious "science."

[Huber's clinic] specifically states that they do not treat their patients with chemotherapy or radiation. Further, they appear to discourage standard treatment as evidenced by this statement on their website:

Your best opportunity is to begin the natural treatments before the conventional treatments (chemo, radiation, etc.) sicken and weaken you and ultimately strengthen the disease. Many of the patients who opted for only natural treatments never even got sick and saw no side effects.

So in their view chemotherapy strengthens the cancer. Meanwhile they recommend implausible treatments that are not evidence-based. David Gorski has already done an excellent job reviewing the literature on vitamin C and cancer – bottom line, it doesn’t work.

Huber likes to claim her research backs up her outlandish claims. But as Hermes has pointed out, there's no way her research is ever going to be questioned, considering Huber's position gives her the power to grade her own papers.

Nowhere in any of her “research” that I could find did she write that she obtained written, informed consent from her patients/research subjects. Nor did she write that her “research” was approved by an Institutional Review Board (IRB) or was registered with ClinicalTrials.gov. These are fundamental ethical requirements for research on human subjects.

But don’t worry, Colleen Huber is a founding member of a naturopathic Institutional Review Board that has apparently approved her research. The board, which also oversees several other naturopathic organizations, including the Naturopathic Oncology Research Institution (NORI), was established in 2010, and from what I can tell, was registered with the FDA in 2013. This registration is legally required in order to approve research on human subjects. According to the IRB’s meeting minutes from November 8, 2013, the first study approved was a study on an herbal gel for cold sores. But Huber says she started her research in 2006…before her IRB was formed.

What comes next is unsurprising. (You did read the headline, right?) Huber didn't like having her horseshit exposed and sent a cease-and-desist to Hermes last fall. Hermes, secure in her conclusions and statements, ignored the C&D. Huber has now taken the next step and is suing Hermes for factually reporting on Huber's dubious… everything.

Arizona naturopath Colleen Huber is suing me in Germany for defamation over my opinions about her so-called natural cancer treatments and research. The lawsuit was filed in Kiel, Germany (where I live) on September 17th, 2017. This legal action came four weeks after Huber’s lawyers sent me a cease and desist letter that demanded I remove a blog post about Huber and pay Huber’s legal fees. My lawyer responded that allegations laid out in the letter were not correct and therefore, I would not comply. I believe Huber is attempting to stifle my right to freedom of speech with this SLAPP (strategic lawsuit against public participation).

The first sentence of Hermes' post spells trouble for the naturopath-turned-skeptic: Germany is not a great place to defend critical speech. Defamation is a criminal offense in Germany, rather than a civil offense. A lawsuit can result in criminal charges, fines, and prison sentences. Truth is still a defense against defamation claims, but somehow the German government still manages to secure over 20,000 defamation convictions every year. And, of course, there's no such thing as an anti-SLAPP law in Germany, meaning Hermes must foot the bill for legal fees defending herself from Huber's transparent attempt to silence a noisy critic.

Fortunately, Hermes has secured one of the best for her legal representation. Dr. Daniel Kötz comes highly recommended by none other than Marc Randazza and is the only European member of the First Amendment Lawyers Association. She has also set up a crowdfunding page for her defense against Huber's attempt to have "might" triumph over "right." Hopefully, this will be dispensed of cheaply and quickly and Huber can go back to having her "medical" practice thoroughly and factually disparaged by actual medical professionals and well-qualified skeptics.

Filed Under: anti-slapp, britt hermes, colleen huber, defamation, free speech, germany, naturopathic, opinion, quacks, skeptics, slapp