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Thread: Privacy vs. Free Speech

  1. #1

    Default Privacy vs. Free Speech

    Two German Killers Demanding Anonymity Sue Wikipedia’s Parent

    Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them. The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

    “They should be able to go on and be resocialized, and lead a life without being publicly stigmatized” for their crime, Mr. Stopp said. “A criminal has a right to privacy, too, and a right to be left alone.”

    Mr. Stopp has already successfully pressured German publications to remove the killers’ names from their online coverage. German editors of Wikipedia have scrubbed the names from the German-language version of the article about the victim, Walter Sedlmayr.

    Now Mr. Stopp, in suits in German courts, is demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, do the same with the English-language version of the article. That has free-speech advocates quoting George Orwell.

    “He who controls the past, controls the future,” said a bulletin on the case issued Thursday by the Electronic Frontier Foundation, an online civil liberties group. Jennifer Granick, a lawyer for the group, said the case “really is about editing history.”

    Floyd Abrams, a prominent First Amendment lawyer who has represented The New York Times, said every justice on the United States Supreme Court would agree that the Wikipedia article “is easily, comfortably protected by the First Amendment.”

    But Germany’s courts have come up with a different balance between the right to privacy and the public’s right to know, Mr. Abrams said, and “once you’re in the business of suppressing speech, the quest for more speech to suppress is endless.”

    The German law springs from a decision of Germany’s highest court in 1973, said Julian Höppner, a lawyer with the Berlin law firm JBB who has represented the Wikimedia Foundation, though not in this case.

    Publications generally comply with the law, Mr. Höppner said, by referring to “the perpetrator — or, Mr. L.” But with such a well-known case, he said, expunging the record “is difficult to accomplish — and, morally speaking, rightly so.”

    The court’s goals in the 1973 decision were laudable, he said, but the logic might not be workable in the Internet age, when archival material that was legally published at the time can be called up with a simple Google search. The question of excising names from archives has not yet been resolved by the German courts, he said.

    Collisions in court involving free speech, the Internet and differing national laws are not new. In 2000, French courts fined Yahoo and ordered it to block access to auctions of Nazi memorabilia. The company fought the ruling in American courts, which upheld Yahoo on First Amendment grounds, but that decision was later overturned on jurisdictional grounds by the federal appeals court in San Francisco. Yahoo removed the auctions.

    Michael Godwin, general counsel of the Wikimedia Foundation, a nonprofit organization in San Francisco, said the foundation “doesn’t edit content at all, unless we get a court order from a court of competent jurisdiction.”

    The online encyclopedia is written and edited by armies of independent volunteers, and “if our German editors have chosen to remove the names of the murderers from their article on Walter Sedlmayr, we support them in that choice,” said Mr. Godwin, adding, “The English-language editors have chosen to include the names of the killers, and we support them in that choice.”

    Wikipedians, as they call themselves, have removed or restricted information in the past. Wikipedia’s founder, Jimmy Wales, personally appealed to editors to keep off the site any information about the kidnapping of David Rohde, a Times reporter seized by the Taliban in Afghanistan, until his escape.

    Mr. Godwin noted there were more than 12 million articles on Wikipedia and just 30 paid employees of the foundation, who largely maintain the software and run the computer servers. “We have one guy who handles legal complaints,” he said. “Me.” The idea that this small crew could police such vastness “does not scale,” he said.

    Mr. Werlé, one of the killers, was released from prison in 2007, and Mr. Lauber, the other, in 2008.

    Their lawyer, Mr. Stopp, contacted Wikimedia about both men, citing cases since 2006 that had suppressed publication of their names in Germany. He has won a default judgment against Wikimedia for Mr. Lauber in a German court, and last month sent the foundation a letter regarding Mr. Werlé, whose case against Wikimedia is pending.

    “The German courts, including several courts of appeals, have held that our client’s name and likeness cannot be used anymore in publication regarding Mr. Sedlmayr’s death,” he wrote.

    The letter included a sample agreement in which the organization would remove Mr. Werlé’s name from the article or pay a “contractual fine” of no less than 5,100 euros — about $7,600 at the current rate of exchange — “for each case of infringement,” to compensate him for “all loss and emotional suffering incurred” because of prior publication.

    In a written response to Mr. Stopp, Wikimedia questioned the relevance of any judgments in the German courts, since, it said, it has no operations in Germany and no assets there.

    “We’ll see,” Mr. Stopp said in an interview. In an e-mail message after the interview, he wrote, “In the spirit of this discussion, I trust that you will not mention my clients’ names in your article.”
    tl;dr: Two German murderers are suing Wikipedia to get rid of any mention of their crime after successfully getting German publications & sites to do the same.

    Ignoring the fact that these guys shouldn't have standing to try to enforce such a thing on an American organization, what are the thoughts on this subject? Try not to get too hung up on the fact that the guys doing this are murderers and maybe if they didn't want to be called that they should have just, you know, not murdered anyone. From what I've heard about these laws can also be used for to purge more innocuous details about your life from the internet/media. I think this comes down to privacy vs. free speech. If somebody learns something about you through legal means and feels it's worth sharing, does your privacy trump their free speech rights?

  2. #2
    Well to be honest, I don't want to choose for one of both, and I am well aware, that they contradict each other. Laws should be made in a way to keep both in balance. The German law is clearly weighting privacy too strong, the US to little. Finding the golden middle-way is not an easy task IMO.

    What I find ridiculous is this statement:
    But Germany’s courts have come up with a different balance between the right to privacy and the public’s right to know, Mr. Abrams said, and “once you’re in the business of suppressing speech, the quest for more speech to suppress is endless.”
    There is not a single country (including the US) in the world where free speech is absolute, there is a lot you are not allowed to spread in US or about the US.
    "Wer Visionen hat, sollte zum Arzt gehen." - Helmut Schmidt

  3. #3
    Quote Originally Posted by earthJoker View Post
    Well to be honest, I don't want to choose for one of both, and I am well aware, that they contradict each other. Laws should be made in a way to keep both in balance. The German law is clearly weighting privacy too strong, the US to little. Finding the golden middle-way is not an easy task IMO.

    What I find ridiculous is this statement:
    But Germany’s courts have come up with a different balance between the right to privacy and the public’s right to know, Mr. Abrams said, and “once you’re in the business of suppressing speech, the quest for more speech to suppress is endless.”
    There is not a single country (including the US) in the world where free speech is absolute, there is a lot you are not allowed to spread in US or about the US.
    I actually find that statement completely reasonable. If you assign a bureaucracy to do something, they will inevitably try to do more and more things. It's known as Mission Creep.

    I also don't know of any country or legal system where there is "too much" free speech, even at the expense of "privacy". Even if I remove the issue of murder from this case, I don't see how it's possibly desirable to scrub someone's name from any type of record.

  4. #4
    Quote Originally Posted by Dreadnaught View Post
    I actually find that statement completely reasonable. If you assign a bureaucracy to do something, they will inevitably try to do more and more things. It's known as Mission Creep.

    I also don't know of any country or legal system where there is "too much" free speech, even at the expense of "privacy". Even if I remove the issue of murder from this case, I don't see how it's possibly desirable to scrub someone's name from any type of record.
    Keep in mind Dread, aren't juvie records usually locked away after 18 to attempt to give the person a "clean slate"?

  5. #5
    Sure. But a sealed police record isn't the same as eliminating that record, or eliminating that record from all news stories, blog posts, Facebook posts, etc.

    If said juvenile stole a truck and crashed it into the one grocery store in town, a sealed police record won't (and shouldn't) abrogate my right to publish a news story about it or post about it on Facebook. This lawsuit seems to suggest that these public and non-official records should be edited after the fact simply because someone went to jail for their crime.

  6. #6
    Quote Originally Posted by coinich View Post
    Keep in mind Dread, aren't juvie records usually locked away after 18 to attempt to give the person a "clean slate"?
    If the info goes public at some point a website can host it as far as I know.

  7. #7
    Quote Originally Posted by Dreadnaught View Post
    I actually find that statement completely reasonable. If you assign a bureaucracy to do something, they will inevitably try to do more and more things. It's known as Mission Creep.
    This is true, but there is this concept called check and balance. I think the US is even based on it You assign freedom of speech to one office and privacy to another.
    Even if I remove the issue of murder from this case, I don't see how it's possibly desirable to scrub someone's name from any type of record.
    I don't see it either. Honestly, I don't find a good reason to try to delete information. The Germans try hard to find something like the "digital rubber" but honestly once information has spread it can't be deleted anymore.

    Privacy is not the only right that collides with freedom of speech. Copyright is by far the worse problem.
    "Wer Visionen hat, sollte zum Arzt gehen." - Helmut Schmidt

  8. #8
    If things continue down this road, Mr. Zuckerberg's empire will crumple. Hip hip hooray for Timeline!

  9. #9
    Quote Originally Posted by earthJoker View Post
    This is true, but there is this concept called check and balance. I think the US is even based on it You assign freedom of speech to one office and privacy to another.
    What terrible logic. Just because checks and balances are desirable in some arenas doesn't mean they are in others. Or perhaps the government should seek to strive a balance between murdering and not murdering its entire population.
    Hope is the denial of reality

  10. #10
    Quote Originally Posted by Loki View Post
    The government should seek to strive a balance between murdering and not murdering its entire population.
    What terrible logic. Just because checks and balances aren't desirable in some arenas doesn't mean they aren't in others.
    "Wer Visionen hat, sollte zum Arzt gehen." - Helmut Schmidt

  11. #11
    In general, I believe the arbitrator between privacy and free speech should be public interest.
    When the sky above us fell
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  12. #12
    Senior Member Flixy's Avatar
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    Quote Originally Posted by Loki View Post
    Or perhaps the government should seek to strive a balance between murdering and not murdering its entire population.
    Well, it does, doesn't it? You do have the death penalty after all.
    Keep on keepin' the beat alive!

  13. #13
    I thought someone would mention that. That's why I used the word murder, which rules out legal executions.
    Hope is the denial of reality

  14. #14
    Senior Member Flixy's Avatar
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    Quote Originally Posted by Loki View Post
    I thought someone would mention that. That's why I used the word murder, which rules out legal executions.
    The point is a bit moot, considering state murders are state sanctioned. A state can change its laws to make things legal... If anything, the fact that executions are legal is a form of balance between what constitutes murder, and what is a righteous state-sanctioned kill.

    Would you say the Nazis never murdered Jews? I'm sure it was legal in their jurisdiction.
    Keep on keepin' the beat alive!

  15. #15
    Quote Originally Posted by Flixy View Post
    The point is a bit moot, considering state murders are state sanctioned. A state can change its laws to make things legal... If anything, the fact that executions are legal is a form of balance between what constitutes murder, and what is a righteous state-sanctioned kill.

    Would you say the Nazis never murdered Jews? I'm sure it was legal in their jurisdiction.
    They can, and yet plenty of states kill their own citizens outside the law.
    Hope is the denial of reality

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