In October, the Higher Regional Court of Stuttgart issued a ruling (in German) affirming that the Wikimedia Foundation is a “service provider” and not a “content provider,” a win for the Wikimedia movement and the Wikimedia Foundation. This decision marks the first time a German appellate court has ruled so clearly on this issue for Wikipedia, and it will have a beneficial impact on future claims brought in German courts. The finding is based on the fact that content on Wikipedia is created and managed by a global community of volunteer editors and contributors, as opposed to the Wikimedia Foundation. The detailed verdict was published on juris.de on November 5. Recent press has misinterpreted the positive impact of this decision, with a number of writers incorrectly summarizing the decision.
One key distinction that was important to the court in its determination was whether Wikipedia was “alleging” statements in the German-language Wikipedia article (as the plaintiff argued) or simply “distributing” them through publication. A lower court in Germany had agreed with the plaintiff, but the Stuttgart court, a higher appeals court, reversed that ruling and confirmed that Wikipedia was only “distributing” the information through publishing.
The court accordingly ruled that, as a service provider, rather than a content provider, the Wikimedia Foundation is not liable for user-generated content, nor does it have a duty to proactively check articles for allegedly illegal or inaccurate content. Furthermore, because it is a service provider, the Wikimedia Foundation may not be held liable for financial damages. If, however, the Wikimedia Foundation is informed of certain content allegedly in violation of local law, according to the court, that content should be removed to maintain immunity from liability – this is a position consistent with traditional online hosting liability under which Wikipedia has historically operated.
The plaintiff, a TV station owner, also alleged that the German-language Wikipedia article about him contained inaccurate information. He argued that, under German privacy principles, the Wikipedia article improperly suggested that he intimidated or brainwashed his employees and that “cult-like” conditions existed at his TV station. Weighing heavily the right to express one’s opinion, the court squarely rejected these claims.
The Stuttgart court did rule that two other statements about the plaintiff should be removed from the article because, under German privacy law, certain types of allegations must be successfully proven or resolved within a reasonable period of time. Otherwise, reports of such allegations should be removed. The two statements in question have apparently now been removed from the article because Wikipedia’s editorial community members determined them to be unsuitable for Wikipedia, though there is an ongoing discussion about this issue within the German Wikipedia community.
The Wikimedia Foundation believes these statements are justifiable under general principles of free speech, but understands why the Stuttgart court ruled the way it did. The Wikimedia Foundation still believes, however, that the inclusion or exclusion of these statements are content and editorial decisions for the German Wikipedia community.
The community of Wikipedia contributors seeks to continuously improve Wikipedia as a neutral and reliable source of encyclopedic information and does so by evaluating Wikipedia content with numerous content-related policies–such as the Biographies of Living Persons policy–in mind. The Wikimedia Foundation encourages those who have concerns about the inclusion or accuracy of certain content to engage and work with the community directly. The Wikimedia Foundation will continue to respect and defend the decisions of the community, as it did last year in two other content-related cases in German courts.
Legal Counsel, Wikimedia Foundation
Dr. Holger Müller
Partner, Schlüschen Müller Rechtsanwälte, Berlin