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 in Prof. Dr. Matthias Asche v. Wikimedia Foundation, Inc. and the District Court of 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. 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. 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, 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.
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. “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 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.