Waibel v Wikimedia

With thanks to BadMachine, and all those who helped with translation.

People vandalize and add incorrect information to Wikipedia all the time, but whatever libelous statements they add are removed, and that is the problem solved, right?

Not exactly, no. Without an administrator removing the content from public view using the deletion tools that only administrators have access to, the content is still accessible in the revision history of a page.

Most vandalism is removed from articles by simply undoing the edit, however by design Wikipedia will retain the text of the edit in the revision history, which anyone can access.

For this reason, edits containing copyright violations, libel, and personal details should be reported to an administrator and deleted, and normally this happens and everything is fine.

For professor Alexander Waibel, a German born computer scientist, things did not go so well.

For legal reasons the libelous content has now been deleted from the German Wikipedia article about him and its revision history, however it is still detailed and quoted on the “diskussion” page of the article, as well as being detailed in the court documents.

Extract from German court documents published by the Wikimedia Foundation. (link to PDF)

On the German Wikipedia page in the publicly accessible entry to the person of the plaintiff it says under the heading “research”:

“As the ARD magazine Fakt reported, Waibel’s research was used for mass analysis ­of recorded voice data by the American intelligence and military authorities. According to documents available from FAKT, Waibel had been researching for years for an American government program called Total Information Awareness. The German Federal Government also participated in the financing. According to SPIEGEL, the project is said to have been funded by the US Department of Intelligence Research IARPA. The money was not paid directly, but flowed through a subcontract from an American university.Alexander Waibel noted that research itself is public (not “classified research”) and commented on his work: “All the knowledge that arises in speech recognition, it’s like road construction, you know, you can build roads and then drive Cars over it and eventually tanks go over it.” Waibel refers to his work in general. Although he has developed algorithms for multilingual speech recognition for government agencies, this is intended for disaster relief missions. ” (Attachment K1)

The entry refers to a TV program broadcast in the ARD magazine “Fakt” on 3 September 2013 , which the plaintiff rebuked at a press conference .

Approximate translation from the German.

The good professor complained firstly to the Wikimedia Foundation, sending them an email in December 2016. However as is detailed in their internal procedural policy, take down requests are not honored except in extremely narrow circumstances where the foundation has a legal responsibility to do so.

The Wikimedia Foundation did not remove the libelous information, and after a fruitless two years, the good professor and his lawyers Raue LLP finally won a libel case in the Berlin District Court, gaining 20,000 Euros in damages plus costs.

Extract from German court documents published by the Wikimedia Foundation. (link to PDF)

After this court decision in August 2018, the German Wikipedia article was duly rewritten by a volunteer called O. Koslowski. However, the libelous information was still present in the revision history, as no administrator had been involved, and the Wikimedia Foundation was following their policy of not doing anything.

The good professor went back to court, and in December 2018 won a second court order, this time being awarded 5000 Euros in damages, with the Wikimedia Foundation being required to delete the revision history of the article.

Extract from German court documents published by the Wikimedia Foundation. (link to PDF)

Administrators then duly deleted around 100 items from the revision history, in compliance with the court order.

Throughout this case, Wikipedian’s refused to remove the information, based mainly on the fact the information was not original research, and was cited to reliable sources.

Lawyers from the good professors firm successfully argued that the “reliable sources” that the Wikipedia article relied on were merely inaccurate media speculation, which had later been shown to be demonstratively false. It does not appear that any retraction was issued by the media sources involved, and they have not reported on the issue again.

In the past the issue of jurisdiction has been a major cause of failed actions in litigation involving the US based Wikimedia Foundation. The ruling of the German court on the subject of their jurisdiction over this case was as follows:

The action is admissible.
The district court Berlin is internationally and locally responsible. The international competence results from § 32 ZPO. The German jurisdiction rules specify both the local jurisdiction and the extent of German international jurisdiction. It is a German-language website. The specifically challenged article has an in-country connection that goes beyond mere availability, since the plaintiff is a scientist and professor who works and is known in Germany .

§ 32 ZPO regulates the local jurisdiction for violations of personal rights by mas ­ senmedial utterances. To decide on complaints for personality ­ The German courts are subject to international jurisdiction pursuant to § 32 ZPO (German Code of Civil Procedure) if the contents objecting to infringement objectively have a clear connection with the domestic context in the sense that a collision between the parties is contrary ­ interests actually occurred or may occur in the circumstances of the specific case in this is to be assumed if an acknowledgment of the complainant notification is considerably closer to the circumstances of the specific case in the country than it is on ­ the mere availability of the offer would be the case and the ­ would recognize his right to privacy by taking note of the notification in Germany (BGH of 25.10.2011, file reference VI ZR 93/10). According to these criteria be ­ the place of success relevant to international jurisdiction is also correct if suing the host provider as a disturber (BGH at specified place).

It is German law to apply. The applicable law is governed by Articles 40 et seq. EGBGB. For non-contractual obligations from the violation of the personality ­ on the right, according to Article 1 (2) (g) / Lit. g of Regulation No 864 of 2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II – Regulation), excluded from the scope of the Rome II Regulation. Decisive is therefore Art. 40 EGBGB, which also the personality ­ protection including consequential injunctive relief. In his application, the plaintiff exercised his right of determination in favor of German law. The relevant place of success lies in Germany. The plaintiff lives in Germany, where he also knows ­ is engaged in economic activity. Here, therefore, his interest in the omission collides.

Approximate translation from the German.

Another key issue is that Wikipedia is written by volunteers, and the Wikimedia Foundation doesn’t perform any editorial oversight or check the content, this the Wikimedia Foundation used to disclaim responsibility.

However they were unsuccessful in doing so, as the German court ruled that as a host the Wikimedia Foundation becomes legally responsible for content from the first moment it is reported to them. The court ruling was as follows (where the Wikimedia Foundation is referred to as “he” and “the defendant”):

He will only be responsible for verifying infringements submitted to users before publication , as soon as he becomes aware of the infringement . If an affected party notifies the host provider of a violation of his personal rights , he is obliged to prevent such injuries in the future if the reference is sufficiently specific (BGH judgments of 25.10.2011 – VI ZR 93/10 and 27.3.2012 – VI ZR 144/11). These standards also apply to the defendant with regard to the online encyclopedia operated by the defendant (OLG Stuttgart CR 2014, 393, 396).
Since the defendant by the e-mail of 22.12.2016, but at the latest by the application in the jurisdiction of the BGH has obtained sufficient knowledge of the infringement, but subsequently (unchanged to this day) left it on its website, it is liable to the plaintiff therefore on omission.

Approximate translation from the German.

In conclusion, if you encounter libelous information about you on Wikipedia, do not hesitate to inform their legal team immediately, making it clear that they have full responsibly for the content they host.

If you are a Wikipedian, give a thought to the 25,000 Euros plus two sets of legal costs that was spent on this case. The Biographies on Living Persons policy dictates to take care when writing negative information on Wikipedia, and this is an example of what happens when it turns out that people were relying on the wrong information.

Update: 11 April 2019.
The Wikimedia Foundation have issued a public statement regarding this case.

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