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Free Speech vs. Privacy

As courts around the world try to catch up to technology, Wikipedia finds itself caught between Germany's privacy laws and our first amendment

By John Schwartz

A gruesome 20-year-old murder case has now sparked a legal battle in cyberspace. In 1990, the victim, an actor, was found in his bedroom in Munich, Germany, stabbed in the stomach and beaten in the head with a hammer. Wolfgang Werlé and Manfred Lauber were convicted of the murder and sent to prison.

Now the killers are suing to force Wikipedia to forget them, claiming that the online encyclopedia's articles about them and the case violate their right to privacy.

The legal fight pits German privacy law against America's First Amendment, and raises difficult questions about how the law, in any country, applies to the Internet.

German law allows the suppression of criminals' names in news accounts once they have paid their debt to society. On the other hand, the First Amendment of the U.S. Constitution guarantees every American's freedom of speech and freedom of the press.

Alexander H. Stopp, a lawyer for the two Germans, says they should be allowed to "lead a life without being publicly stigmatized" for their crime. "A criminal has a right to privacy too, and a right to be left alone." Werlé, one of the killers, was released from prison in 2007, and Lauber, his half-brother, was released in 2008.

German publications have removed the killers' names from their online coverage. German editors of Wikipedia have scrubbed their names from the German-language version of the article about the victim, Walter Sedlmayr. The two killers are demanding, in lawsuits in German courts, that Wikipedia do the same with the English-language version of the article.

No way, say American free-speech advocates. Floyd Abrams, a prominent First Amendment lawyer, says every Justice on the U.S. Supreme Court would agree that the Wikipedia article "is easily, comfortably protected by the First Amendment."

Reno v. A.C.L.U.

American courts have taken a hard line against attempts to regulate online speech. In 1997, the Supreme Court struck down portions of the Communications Decency Act of 1996, in which Congress tried to regulate Internet pornography. That would have had the effect of censoring a lot of online content, and the ruling in the case, Reno v. A.C.L.U., established that the Internet has the same First Amendment protections as traditional media.

"The U.S. is not going to enforce laws from other countries that are inconsistent with our laws here," says Jennifer Granick, a lawyer with the Electronic Frontier Foundation, a group focused on civil liberties in the digital world.

In some ways, the German case is quite straightforward compared with some of the more subtle dilemmas posed by how the law applies in cyberspace—particularly in the areas of privacy, online defamation, and cyber-harassment.

Editing History?

Since a 13-year-old Missouri girl committed suicide in response to cyber-bullying in 2007, 18 states have passed laws against online harassment, raising questions about whether such laws infringe on free speech. And schools are trying to figure out how to handle cases in which students complain about teachers online. The issues raised by these kinds of cases are slowly making their way through the courts.

"Technology outpaces everything," says Danielle Citron, a law professor at the University of Maryland and an expert on cyber-harassment. "But the law is working on catching up."

The Wikipedia case "really is about editing history," says Granick of the Electronic Frontier Foundation. "It raises a lot of the issues we have all the time about once information is out there, is there any restraint on how you can use it, and how hard it is to impose any restraint in the age of the Internet."

Because Werlé and Lauber are trying to remove their names from the historical record, the case has free-speech advocates quoting George Orwell: "He who controls the past, controls the future," the Electronic Frontier Foundation recently noted, using a line from Orwell's novel 1984.

The logic of the German privacy law might not be workable in the Internet age, when older material that was legally published at an earlier 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.

Stopp, the lawyer for Werlé and Lauber, has won a judgement against Wikipedia in the German courts, but Wikipedia says the ruling is irrelevant since it has no operations in Germany.

The encyclopedia is written and edited by armies of independent volunteers. Wikipedia, which includes versions in at least 30 other languages, is operated by the Wikimedia Foundation, a nonprofit organiza tion in San Francisco.

"If our German editors have chosen to remove the names of the murderers from their article on [the victim], Walter Sedlmayr, we support them in that choice," says Michael Godwin of the Wikimedia Foundation, adding, "The English-language editors have chosen to include the names of the killers, and we support them in that choice."

(The New York Times Upfront, Vol. 142, February 8, 2010)