Wednesday, December 4, 2013

German Court: Wikipedia Must Act Upon Notice

Techdir few days ago reported that Higher Regional Court of Stuttgart (OLG Stuttgart) held that "Wikimedia is liable for contents of Wikipedia articles". This very inflated headline of course caught attention of many, including mine. The outcome, however, does not seem to be so dramatic as the headline suggests (Mike Masnick rectifies possible misunderstanding in the post itself, but I reckon that only few took it home after the bombastic opening statements). In reality, the German appeals court held that Wikipedia must modify or remove the allegedly libelous content upon the sufficiently substantiated notice.

The case was file by an owner a local TV station directly against US Wikimedia Foundation. Disputed German article on Wikipedia stated that plaintiff in the past trivialized sex with children and also made the Hitler salute on television. The Wikipedia article also stated couple of other things, e.g. that he intimidated his employees, subjected them to “brainwashing”, etc. Both instances found that only first two statements were libelous as they did not match the truth.

The Court in its ruling relies on similar case-law of the sixth senate of the German Federal Supreme Court (BGH). Namely, the case dealing with a liability of Google for Blogger service (Blog-Eintrag, VI ZR 93/10) and liability for RSS feeds (RSS-Feeds, VI ZR 144/11). This case-law of the sixth senate responsible for the personality rights issues, is qualitatively very different from the case of the first senate of BGH dealing with the intellectual property issues (see below).

The Court started with noting that Wikimedia acts as a hosting provider in a sense of Art. 14 of eCommerce Directive and that the safe harbor does not apply to injunctions (§§ 151, 154). The position of Wikipedia vis-a-vis its content, is similar to one of provider of a blogging platform or of a discussion forum. For this reason, the Court invoked above mentioned cases of BGH to conclude that injunctions need to be served by Wikimedia only if it receives a knowledge about libelous articles. The notice that might trigger injunctions need to be sufficiently concrete (§ 156). Wikipedia is, however, in no way obliged to monitor the articles prior to their publication. In this case, Wikipedia did not react to the notice and hence was ordered by the court to remove disputed statements.

In fact, the decision, despite being very long, is quite brief on intermediary liability issues. There are, however, several interesting points to be made.

First of all, it is interesting to see that cases of libel are treated very differently than IP cases. It is true that at the Federal Supreme Court level there are two different senates responsible for them, and sixth is definitely less experienced, but the divergence is quite remarkable. Whereas the first senate forces hosting providers (in the IP context) to implement filters and even to do some manual checks of externals websites like search engines, the sixth senate effectively rejects any proactive measures, and requires only reactive measures from the point when the safe harbor would be lost anyway. Of course, one can argue that this is understandable because libel is more difficult to establish than regular IP infringement, but same can be said about some copyright or trade mark infringements (e.g. those "lingering around" the fair use doctrine).

Second, the Court did not consider jurisprudence of the CJEU on passive hosts. I have personal doubts if Wikipedia with its positive endorsement of community of editors would still qualify for mere technical, automatic and passive host (§ 114, Google France). Especially when I see how English and German courts step by step deny passivity to eBay, Rapidshare and other providers. In fact, Wikipedia could be an excellent example of how this extended requirement for passivity of hosts invented by CJEU is more harming than helping. Consider how ironic it would be, if Wikipedia, fails to qualify for a safe harbor only due to its great efforts to establish vibrant and critical community of wikipedians.

Last but not least, it is interesting that despite the court qualifying Wikipedia as a hosting provider, it did not try to derive prohibition of general monitoring obligation from Art. 15 of eCommerce Directive or § 7(2) of the German TMG, but rather from proportionality and BGH case-law.

In a result, according to the German court, Wikipedia must act upon a notice. If its fails to act, as in this case, it can be ordered to do so. Please note that the decision was not about damages. The Court's conclusion on injunctions, does not necessarily imply also liability for damages.

I am very curious to hear opinion of my learned readers on this.

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