Niche-Niche: Wikipedia refuses to remove content contrary to German lawyer’s cease and desist letters

The First Amendment provides American-based websites with the freedom to report on newsworthy events, including those that happen in other countries to citizens of other countries. Yet, the global nature of the Internet opens it up to legal challenges from countries with more restrictive speech regimes.

Last fall, for instance, lawyers for the convicted murderers of German actor Walter Sedlmayr sent Wikimedia, an Internet content provider located in the United States that runs Wikipedia, a cease and desist letter demanding that Wikimedia remove from its Wikipedia article the names of Sedlmayr’s killers in compliance with the German law that protects the privacy of individuals.

German courts have reasoned that criminals are no longer public figures nearly 20 years after being convicted, and thus should be afforded privacy by not having their names published.

The issue here is whether American-based producers of online media are required to comply with foreign restrictions of free speech. As laws regulating the Internet are still evolving, and most of the compliance has been voluntary, we have yet to find a definitive answer to this question.

In the case of Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Societe Yahoo! France (LICRA v. Yahoo!), LICRA, a French based human rights organization sued American-based company Yahoo! because Yahoo! permitted users to auction off Nazi memorabilia.  LICRA claimed that these auctions violated a French law against displaying Nazi memorabilia.  LICRA argued that because French citizens could theoretically access and participate in Yahoo’s American-based and -run auctions, the auctions’ content were covered under French law, and thus illegal. A French court ruled in favor of LICRA.

Yahoo!, instead of appealing the French court’s ruling, sued LICRA in the United States, arguing that the organization had violated Yahoo’s First Amendment right to free expression.  (See Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisémitisme, 433 F.3d 1199 (9th Cir. 2006).)

Yahoo’s case against LICRA was eventually dismissed by the federal court in the Northern District of California on an order from an en banc panel at the Ninth Circuit Court of Appeals.  The appellate court determined that it lacked personal jurisdiction over LICRA. This decision overturned an earlier finding that LICRA had violated Yahoo’s First Amendment rights of free expression.

As it stands, American courts are not even sure if they have jurisdiction over foreign entities that wish to restrict the expression of American-based companies.  This is a story worth watching.

Thus far, Wikipedia has asserted its right to free expression and not removed the names of Sedlmayr’s murderers from its English article.

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4 Responses to Niche-Niche: Wikipedia refuses to remove content contrary to German lawyer’s cease and desist letters

  1. Jim Pivonka says:

    Is it not a general principle that the writ of a nation’s law does not extend actions of people who are neither citizens of nor present in that nation?

    The only exception to that general principal should be through treaty or ratified international law. Where no treaty or international law exists covering an action, the law of one nation cannot be applied to a citizen of any other nation who is not present in the first.

    How would this be applied to a noise oridinance in jurisdiction A when a citizen of adjoining jurisdiction B produced noise extenting over the border exeeding A’s limits? Billboard advertising visible in A with depictions & information illegal there, but located in B? Chemical vapor releases? Ground water contamination? Absent an international agreement, the law of jurisdiction A cannot reach into jurisdiction B.

    Yahoo had to yield in France, because it has business presence and interests in France to which French law & sanctions could be applied. Yahoo attempted to extend US rights into French law and got slapped down. The Wikipedia case seems different, in that Wikipedia is relying on its lack of presence in Germany to assert rights it holds in the US. German law, absent international agreements covering the matter clearly, cannot be extended into the US. IMO.

  2. Jim Pivonka says:

    Notify me of follow-up comments via email. Thanks

  3. Hi Jim,

    Thank you for your questions.

    In general, you are right. Because of how Internet content is transmitted and accessed, however, what makes a company “present” in a nation is up for debate. The German lawyers in this situation are acting on the belief that Wikipedia’s English content is “located” in Germany, while supporters of free expression online, such as the Electronic Frontier Foundation, have made the argument that German law shouldn’t apply to an American company as its First Amendment protections trump foreign law. In contrast, the lawyers for Sedlmayr’s murders did obtain a judgment against Wikimedia’s German chapter, and as a result, Wikipedia’s German version has removed the killers’ names.

    What is at issue is whether foreign law applies to English language content provided by an American not-for-profit corporation, which is not specifically intended for foreign viewers.

    The Yahoo! Case was analogous to Wikimedia’s, only in the case of Yahoo!, the French tribunal ordered not only Yahoo!France, but also its American parent company, Yahoo!, to take steps to prevent users located in France from accessing the objectionable content. While Yahoo!France complied with the tribunal order, parent company Yahoo! did not comply with the order, and instead sought to fight its enforcement using the American court system and relying on protections provided by American law.

    The issue remains unresolved.

    Indeed we may expect international regulations and new online content laws to address those novel issues.

    I hope I addressed your concerns.


  4. Pingback: Internet freedom under threat « Blogging Censorship

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