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.[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. 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

Schweinfurt courthouse.

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. [UPDATE 2/7/13: After hearing arguments from both parties, the Appellate Court of Bamberg strongly indicated in the oral hearing on the appeal that, as it concurs with the legal findings of the District Court of Schweinfurt, it would uphold the decision of the District Court in favor of the Wikimedia Foundation. The Plaintiff has consequently withdrawn his appeal, and the Schweinfurt decision stands as the final ruling on this matter.]


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_Postage_Stamps