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    German Murderer Threatens to Censor Wikipedia

    Rebecca Schoff, Chilling Effects Clearinghouse, November 13, 2009

    Abstract: A convicted murderer is attempting to have his name removed from the English-language version of Wikipedia and all other media coverage of his crime under a German law that protects private citizens from having their names and likenesses published against their will.

    Wolfgang Werlé, who was convicted of the cruel murder of a well-known German actor, has employed the wonderfully named law firm of Stopp and Stopp to send cease and desist letters to media outlets covering his crime and his release. The German-language version of Wikipedia has reportedly already been sued and the English version has been threatened with legal action if the name of the murderer, who was recently paroled after serving fifteen years of a life sentence, is not removed from the article on Walter Sedlmayr, the victim. The Electronic Frontier Foundation notes that Werlé has also sued an Austrian ISP for the publication of his name and that case may go to the European Court of Justice.

    The cease and desist letter sent by Stopp and Stopp (posted here at Wired and here on Chilling Effects: German Convict Seeks to Censor Wikipedia) makes the following argument:

    "German law provides that our client is not a public figure after many year have passed [sic] since the crime. The German courts including several Courts of Appeals, have held that our client's name and likeness cannot be used any more in publication regarding Mr. Sedlmayr's death. . . ."

    The problem is that Mr. Sedlmayr's "death" was a criminal matter of public concern. Sedlmayr was a beloved German actor, whose career stretched from 1949 to 1988 before his death at the age of 64, according to the information available at IMDB. German media online here and here still describe the nature of the killing: Sedlmayr was found in his home, bound, stabbed, and beaten to death with a hammer. German media, however, no longer fully identify the men convicted of the crime: Wolfgang Werlé and his half-brother Manfred Lauber, who reportedly knew Sedlmayr personally. The respected German magazine Der Spiegel refers to the two as "Wolfgang W." and "Manfred L." The German-language version of Wikipedia now merely refers to the "Verurteilten"—the convicts. American media coverage of the cease and desist letter, much of it including photos of Werlé in addition to his name, has mushroomed in the past two days (check out the Huffington Post's coverage, for example).

    In an interview with Wired, EFF lawyer Jennifer Granick noted that if a media outlet lost a suit like the one threatened by Werlé, German privacy laws would require not only that the outlet cease reporting the names of the paroled convicts going forward, but also that it "go back and change what is already being written"—even "online archives" would have to be scrubbed of the convicts' names. Indeed, the link to Der Spiegel above is actually to a 2007 article on the brothers' release, which has apparently now been edited to remove their full names.

    The application of this German law to news and information outlets in the United States is unthinkable. Having effectively silenced their victim, under this law, murderers would be free to silence the media, to wipe the history of their crimes from their identities. Imagine a world in which Charles Manson's name was not used in histories of the 1960's. Now imagine that he's been released and that the news media recount his crimes, but are not allowed to report his name.

    The application of German privacy laws in this case would seem to prioritize the ease of re-assimilation for convicts following their release. In sharp contrast, United States law prioritizes basic freedoms of speech and press, not to mention the public's right to know a fact of public concern (which includes the early release of a violent criminal). All fifty states, for instance, have publicly available sex offender registries.

    Nonetheless, Stopp and Stopp, who both received law degrees in the United States, claim that "[a]s [Wikipedia's] article deals with a local German public figure (such as the actor Walter Sedlmayr), we expect you are aware that you have to comply with applicable German law." We expect that Stopp and Stopp are aware that the United States Constitution has a First Amendment.

    As the EFF points out in the article linked above, there has already been a U.S. district court ruling in which the imposition of a foreign speech restriction was found to violate the First Amendment. That was LICRA v. Yahoo!, but it was overturned in the Ninth Circuit for lack of personal jurisdiction over the French party. The speech restriction in that case was a French law that forbade the commercial exhibition of Nazi memorabilia to the French people. (One of the remedies the court ordered was the posting of warnings on the French-language version of Yahoo! that following links to sites on the English-language version could violate French law.) A suit against the English-language version of Wikipedia might similarly turn on questions of jurisdiction (which would be controlled by the rules of civil procedure, not by the subject of the speech in question).

    In other ways a suit against Wikipedia would be markedly different from the Yahoo! case. The Yahoo! case was about restrictions on sales to the French people. Werlé 's threat against Wikipedia is about restrictions on the information made available to Americans. Applying German privacy laws to American-based websites would radically restrict their ability to report facts to Americans—and eradicate the balance between personal privacy rights and the First Amendment that has been struck by American law.

    If German law wants to provide a remedy to convicts that will restrict the free flow of information from the Internet to the German people, there are models of restrictive filters available in China and Iran. Depriving the American public of the protection of the Constitution should not be available as a remedy for embarrassed murderers in Germany.