Monthly Archive for June, 2007

Actually the discussion about Flickr’s filtering system brought up some interesting details about user generated content and website owners in Germany.

No doubt that recent German court decisions regarding content of internet forums are going to turn out as a major problem especially for sites based on any kind of user generated content. Flickr is facing that issue right now.

This post in the Flickr forum elaborates the issue very well:

Without going into too much detail, despite having a sort of a right to free speech guaranteed in the Basic Law [note: Germany has no constitution, but instead this "Basic Law" official translation here.], this freedom of speech has some important limitations in practice.

Article 5 simultaneously grants this right:
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

And allows for it to be limited in common law:
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal
honor.

So, one common practice is: insulting someone is potentially grounds for prosecution. If the person you insult is an official of any kind, you are definitely in trouble here – flipping the bird at a speed radar camera will get you a big “finger fine” on top of your speeding fine because your intention is to insult the poor schmuck in the traffic department who has to verify the license numbers in the photos. This kind of speech (as well as denying the Holocaust, glorifying the Nazi regime and some other kinds) are criminal acts. Fineable insults can include such seemingly harmless words as calling the wrong person a “stupid cow.” Watch your mouth!

Given that certain kinds of speech are not actually allowed a series of recent court decisions determined that people who run internet forums are legally liable for all entries in their pages. They are obliged to remove illegal speech (in the common law interpretations thereof) in every case whether the “troll” who placed the speech in the forum was anonymous or not. The common forum administration practice has been, until recently, to remove anonymous posts of an illegal nature but to pass on the legal responsibility (via disclaimers, end user agreements and the like) to non-anonymous posters.

One of the cases: Someone participating in a heated forum discussion last year (about child pornography, but this is irrelevant to this discussion) felt insulted by the non-anonymous posting of another user and demanded that it be removed. The administrator, sighting that the poster’s identity was known to all, declined to remove the speech, saying that it wasn’t their responsibility and that the non-anonymity of the poster allowed for sufficient recourse on the part of the insulted party. Well … in the end the person who felt insulted sued and won.

There have been a couple of similar instances and one made it all the way to the German Constitutional Court (the equivalent of the US Supreme Court here).

BGH zur Haftung für rechtswidrige Inhalte das Ende von kleinen Foren
Forenbetreiber bleibt mitverantwortlich
Domaininhaber/ Webhoster verantwortlich für Foreninhalte?
Abwesenheit schützt vor Haftung nicht!
Wann haften Forenbetreiber für Gast-Einträge?
Supernature-Forum geht beim LG Hamburg baden

Despite the fact that this kind of decision makes it dangerous for anyone to run any website of any size in Germany with any kind of Web 2.0 features at all (comments, community, photo galleries, etc.), this is the current state of play.

Of course all this could have been communicated to users *before* the filtering system was turned on and Flickr wouldn’t have become almost a synonym for censorship…