https://blog.wikimedia.org/2012/12/04/two-german-courts-rule-in-favor-of-fr…
Posted by Michelle Paulson <https://blog.wikimedia.org/author/mpaulson/> on
December 4th, 2012
German courts handed down two decisions this summer that represent
significant legal victories for the Wikimedia community and the entire
free-knowledge movement in Germany. The District Court of
Tübingen<http://en.wikipedia.org/wiki/T%C3%BCbingen>
in *Prof. Dr. Matthias Asche v. Wikimedia Foundation, Inc*. and the* *
District* *Court of Schweinfurt <http://en.wikipedia.org/wiki/Schweinfurt>
in *Peter Deeg v. Wikimedia Foundation, Inc.***each issued rulings in two
different cases in favor of the Wikimedia Foundation. The former case
concerned the German right of personality of a living person; the latter
concerned the post-mortem right of personality. Both decisions contain
several insightful legal observations on the right of personality online,
which we feel are worth highlighting and sharing with the Wikimedia
community.
*Asche v. Wikimedia Foundation*
In June 2012, Professor Matthias Asche brought suit against the Wikimedia
Foundation, objecting to content in a German-language Wikipedia article and
asserting a violation of his personality rights.[1] In particular, he
wished to eliminate any mention of his membership in several Catholic
student associations.
Asche offered to settle the suit if the Foundation would remove the content
that Asche found objectionable, thereby circumventing community processes.
We could not consent to a settlement that set the precedent of censoring
lawful and accurate content, which community members had already determined
to meet the high standards of sensitivity, veracity and neutrality laid out
in Wikipedia’s Biographies of Living Persons (“BLP”)
policy<http://de.wikipedia.org/wiki/Wikipedia:Artikel_%C3%BCber_lebende_…en>.
It was also undisputed that the information at issue was both accurate and
freely available on several other websites under Asche’s authorization.
With this lawsuit, the right of individuals and entities to publish and
disseminate truthful biographical information on the Internet came under
attack. The Foundation’s mission is to facilitate the robust exchange of
ideas and information and, more ambitiously, to provide global unfettered
access to free knowledge. Thus, rather than compromise on the movement’s
core principles, we chose to defend our community’s right to contribute
factual information to biographical articles.
The German right of personality is broader than the analogous U.S. right of
publicity. U.S. law prohibits unauthorized*commercial* use of individual’s
name or likeness,[2] but German law goes further in securing an autonomous
area of private life for the individual regardless of commerciality. To
that end, Germany often protects the right to informational
self-determination, i.e. the right of the individual to decide when and to
what extent personal facts are publicly disclosed. Asche argued that, under
German law, it was unlawful to make content available concerning an
individual without that individual’s prior explicit consent in spite of the
availability of that same information elsewhere on the Internet.
However, the Foundation maintained–and the court ultimately agreed–the
right of personality in Germany is not absolute; rather, the subject’s
interest in informational self-determination must be weighed against the
interests of Wikimedia users and the general public.[3]
As the German Federal Constitutional Court has previously ruled, absent a
truly compelling justification, the individual must tolerate adverse
effects resulting from third party reactions to publication of true
facts.[4] “Compelling” justifications may include discrimination against
the individual in question, social exclusion and isolation, and likeliness
of a widespread impact. Such justifications were absent in this case.
Furthermore, the court recognized that the rigid enforcement of the right
of personality would inevitably impede the shared mission of the Wikimedia
movement to create and grow, among other projects, a “free encyclopedia.”
The court determined that the public has a significant interest in having a
comprehensive and freely accessible source of knowledge[5] and Wikimedia
similarly has an interest in making available truthful facts under freedom
of the press. The court found that this public interest and the need to
preserve the freedom of the press constituted substantially important
interests that outweighed Asche’s right of personality.
Thus, in a victory for our community and the wider Wikimedia movement, the
court ruled that the balance of interests favors the Foundation and that
the content at issue could remain in the article undisturbed.
***Peter Deeg v. Wikimedia Foundation*
<http://commons.wikimedia.org/wiki/File:Schweinfurt-009.jpg>
Schweinfurt courthouse.
Another recent decision concerns the German right of personality of a
deceased individual. In this case, the plaintiff, Peter Deeg, claimed that
he had asked the Foundation to delete a German-language Wikipedia article
featuring biographical information about his deceased father (also named
Peter Deeg).[6] The plaintiff objected to a statement in the article that
his father was re-admitted into the legal profession in 1952. The plaintiff
also asserted that his father left the NSDAP (National Socialist German
Worker’s Party) earlier than the article stated. The plaintiff filed a
complaint to take down the article altogether.
The Foundation decided to contest the claim on behalf of the German
Wikipedia community. Ultimately, the district court ruled that there was no
violation of the post-mortem right of personality, and refused to grant a
judgment to forcibly remove the article from Wikipedia.
Under German law, the post-mortem personality right protects the deceased
from false assertions, defamation, humiliation and damaging statements
concerning his life and achievements.[7] However, while the right of
personality of living persons can be far-reaching (as discussed above), the
post-mortem right is narrower in scope. Immediate relatives may forbid
statements about the deceased only if the statements violate criminal
defamation law or heavily distort the facts.
The court held that even if, as the plaintiff claimed, certain allegedly
false statements were in fact inaccurate, the article in its entirety did
not constitute a distortion of the subject’s life and achievements. The
court ruled that the article on the plaintiff’s father did not contain any
statements that violated the subject’s post-mortem personality rights.
*Conclusion*
The Wikimedia Foundation continues to defend the rights of our community
around the world to create, edit, teach, learn and inspire. We hope that
this snapshot of two recent legal victories helps give a glimpse into the
kinds of challenges and opportunities facing Wikimedia and our shared
mission on the frontlines of the free knowledge movement.
*Michelle Paulson, Legal Counsel*
*Rubina Kwon, Legal Intern*
* Because Germany is a civil law jurisdiction and not a common law country
(like the U.S.), the Tübingen and Schweinfurt decisions are not binding on
other German courts.[8] However, the judicial analysis creates a “practical
precedent” with significant persuasive authority.
** Mr. Deeg recently filed an appeal in his case, which the Wikimedia
Foundation is committed to oppose.
------------------------------
*References*
1. Professor Asche specializes in history and political science at the
University of Tübingen.
2.
http://en.wikipedia.org/wiki/Personality_rights#United_States
3. The court recognized that true statements must generally be accepted
even if they are disadvantageous or inconvenient to the individual. A true
statement can violate a person’s personality rights only if it threatens to
damage the person in a way that is disproportionate to the interest in
publication of that fact.
4. BVerfG, NJW 2011, 47; BVerfG NJW 1998, 2889.
5. Art. 5 I 1 2.Alt. GG, 10 I 1 EMRK.
6. We have no record of any correspondence from Mr. Deeg prior to the
filing of the lawsuit.
7. German Federal Constitutional Court, BVerfG, Beschluss v. 24.2.1971 BvR
435/68.
8.
http://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Images_in_German_Post…
- Copyright Notes::
"Schweinfurt-009"<http://commons.wikimedia.org/wiki/File:Schweinfurt-009.jpg>
by
Dr. Volkmar Rudolf, under CC-BY-SA 3.0
Unported<https://creativecommons.org/licenses/by-sa/3.0/legalcode>de>,
from Wikimedia Commons
-
2012/12/2 Chico Venancio <chicocvenancio(a)gmail.com>
I am entirely unsure on how to respond to this, but
I'll give it a try.
First, I'd like to state clearly that while WMF legal department did ask to
be kept informed no assistance was given to me beyond a simple, "it is
probably in your best interest to take legal counsel with you when you are
questioned".
The feeling I got from the responses received was that it was entirely my
responsibility to procure adequate counsel. A feeling that was only
heightened by not only the refusal to ask WMF employees to speak about
Wikipedia's very basic rules but also by the request to stop copying a few
friends that are also WMF employees on the emails.
In fact I was told on no uncertain terms that due to the case taking place
in Brazil WMF and its employees could not "directly participate in the
process". Leaving a seemly empty promise to "work behind the scenes to
support" me. My response to these statements remained unanswered, all of
witch contributed to my statement that I did contact WMF's legal department
and got no assistance from it.
Furthermore, I do not even see in you statement, Mr. Brigham, anything
that would speak to the contrary. What I do see are justifications on why
the correct procedure is to not give a person in my situation any
assistance, primarily due to me not being (yet) cited as a defendant on a
legal action.
Of course, WMF is not answerable criminally to this situation as I am; and
the license is very clear in trying to remove all civil liability from the
foundation as well. I did however, expect a higher standard from WMF and I
was undoubtedly disappointed by the lack of assistance.
If my view of the situation is mistaken and WMF in fact intends on
assisting me in this case I offer my deepest apologies for the
misunderstanding.
With warm regards,
Chico Venancio <http://pt.wikipedia.org/wiki/Usu%C3%A1rio:Chicocvenancio>
(
discussão<http://pt.wikipedia.org/wiki/Usu%C3%A1rio_Discuss%C3%A3o:Chico…)
22h01min de 2 de dezembro de 2012 (UTC)
ps: Pretendo traduzir a colocação original e minha resposta em breve (se
ninguém o fizer antes).
2012/12/1 Béria Lima <berialima(a)gmail.com>
que o programa de ajuda legal não se aplica ainda
pq o chico ainda n
--
Chico Venancio
@chicocvenancio <http://www.twitter.com/chicocvenancio>
http://www.chicocvenancio.com
_______________________________________________
WikimediaBR-l mailing list
WikimediaBR-l(a)lists.wikimedia.org
https://lists.wikimedia.org/mailman/listinfo/wikimediabr-l