[kictanet] German high court establishes online libel rules

[Victor Bwire]

German high court establishes online libel rules
 
Federal Court of Justice

The Federal Court of Justice has ruled that foreign companies can be held liable for content that appears on German websites. It has also set out steps online services need to follow when it comes to libel accusations.
 
The German Federal Court of Justice in Karlsruhe ruled on Tuesday that German law applies in an online libel case involving German-language content posted to Blogspot, a blogging service owned by Google. The court also remanded the question of Google's liability with respect to the libel allegations back to the state court in Hamburg.

The decision could have wide-reaching implications for online service providers that operate in Germany. The same court last year ruled the American newspaper The New York Times can be sued in Germany over statements on the newspaper's website if there is a strong connection to the country in an article.

 In late September, the Karlsruhe court, which is the country's highest criminal court, heard a case argued between an anonymous plaintiff and Google. A German man sued Google over a Blogspot blog entry claiming that he used a business credit card to pay for "sex club bills."

 The blog was generally about life on the Spanish island of Mallorca, where the plaintiff resided.

 "Google is pleased that the decision from the Federal Court specified the standards [of] how hosting providers deal with future complaints," wrote Arnd Haller, Google's general counsel for Germany, in a German-language statement sent to Deutsche Welle by e-mail.

"The court has confirmed that neutral services like Google are not obligated to pre-check the legality of content stored with a hosting service. There is also not an obligation on the part of Google to be 'on call' for people who feel their rights have been infringed upon to remove statements of fact. In this regard, Google was concerned that such an obligation would be dangerous to freedom of expression and information on the Internet."

Google lost two lower court decisions

 Google Bildunterschrift: Großansicht des Bildes mit der Bildunterschrift:  Google lost two previous decisions in this case

Google argued that German law did not apply in this situation as Google is an American company, but the court rejected this argument as two previous courts had also done.

 

The Karlsruhe court clarified the rules in such a situation, saying that "the first complaint of the person concerned is to be forwarded to the person responsible for the blog entry [to comment on it]."

 If the person does not respond to the potentially libelous statements "within a reasonable time," then it can be assumed that the charges are true. But if the accused does complain, the author must provide further evidence to support the statement.

The court added that if the author does not provide evidence of the claim - in this case, that the accused used a business credit card for sex club bills - then, there is an "unlawful violation of personal rights," and the service must "delete the entry objected to."

The Federal Court of Justice has remanded the second part of the case - whether Google is liable for these potentially libelous statements - back to the high court in Hamburg to see if Google followed this procedure.

 A surge of 'precautionary deletion'?

 

Markus Beckedahl criticized the court's decisionBildunterschrift: Großansicht des Bildes mit der Bildunterschrift:  Markus Beckedahl criticized the court's decision

There was a mixed reaction from the European Internet activist community.

 

"We criticize the Federal Court's decision to make platform-providers liable for user-generated content, as it forces providers to act as judges in order to avoid prosecution themselves," wrote Markus Beckedahl, chairman of the German digital rights advocacy group digitale Gesellschaft. "However, we acknowledge that the court has defined strict requirements for this liability, that aim at safeguarding free speech."

 

Many Internet activists remain concerned, however, that the ruling could have a chilling effect of online speech.

 

"This can only logically lead to precautionary deletion of innocent blogs and websites and contravene fundamental rights, wrote Joe McNamee, of European Digital Rights, a Brussels-based Internet activist group, in an e-mail to Deutsche Welle.

 

Viktor Mayer-SchönbergerBildunterschrift: Großansicht des Bildes mit der Bildunterschrift:  Viktor Mayer-Schönberger said the ruling was fair and predictable

"Such rulings are of major importance for society as a whole because undermining the legal certainty of Internet intermediaries will - and does, in many European countries - lead to innocent material being deleted as a precaution against strict liability rules. This ruling is about society’s rights to democracy and free speech far more than it is about the rights and obligations of one particular part of industry."

 

Some legal experts said the decision was expected and followed earlier legal precedents.

 

"[The Federal Court] affirmed jurisdiction in this case, which was to be expected, and reaffirmed that host providers can be held liable, but only under quite narrowly defined conditions," wrote Viktor Mayer-Schönberger, an Oxford Internet Institute professor in an e-mail sent to Deutsche Welle.

 

"They even went as far as laying out a procedure that when followed by host providers will insulate them from liability," he added. "Incidentally, this is the same procedure that lawyers, courts, and academics have been applying and writing about for a decade and a half."

 
________________________________________
From: kictanet-bounces+victor=article19.org at lists.kictanet.or.ke [kictanet-bounces+victor=article19.org at lists.kictanet.or.ke] on behalf of justus wamukoya [jwamukoya1 at yahoo.com]
Sent: 26 October 2011 11:21
To: Victor Bwire
Cc: kictanet at lists.kictanet.or.ke
Subject: Re: [kictanet] Freedom of Information laws and records management/More questions

Many thanks to Edith and all those who are contributing to this hugely important debate. Unfortunately I have not been able to contribute as much as I need to as I am on a rather tight mission in Kigali. However, very briefly, let us appreciate that knoledge goes from data to information, then to records, then to knowledge and in some cases to wisdom. This should answer the question as ti weather information can ultimately be converted to knowledge. Secondlly, is the question fir standards. Yes, there are well established standards for records managemenr, irrespective of the formats on is thinking of and also for data conversion and data interchange. So let us not reinvent the wheel. Lastly, records are critical to FOI and so as a country we shall be cheating ourselves ti think that FOI can work wthout RM. And finally finally, whereas information and knowledge are important for various reasons, value is added if the records that evolve out of these are
 captured into sound RM systems for continuing usabily as evidence as well as both institutional and societal memory. More later. Justua
On Wed Oct 26th, 2011 1:55 AM MSD Grace Githaiga wrote:

>
>Matunda, Harry, Edith and Macharia
>
>Your contributions are very important to this debate.
>
>It is true that in the course of the discussion, it has emerged that the topic may need further debate. It is emerging that records management is key in FOI, and that we need standards for records management including formats of storage.
>
>Matunda raises two key points:
>1. That we need to discuss what standards would allow data interchange, and
>2. Do we foresee a situation where we will be able to transform data to knowledge which informs decisions?
>
>Harry, you give a great suggestion on the need for a multistakeholder forum. Can ICT Board, e-goverment secretariat hear you on this one? I am sure listers will support your suggested theme Information Value Chain Management for Social Economic and Political Development .
>
>Macharia Gaitho, I have a feeling that you have echoed the sentiments of many Kenyans when you say your concern is about FOI as a basic right.
>
>Edith, great that you have provided us with themes that should be tackled in FOI. And you got me thinking: should we not start discussing/contributing to the FOI bill? We can be proactive so that article 35 of the the Constitution can be implemented...soon:)....I feel the energy from listers....
>
>
>Have a great day.
>GG

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