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The 1st Ammendment, the Internet, and a Served Debt
November 13, 2009 12:30 PM Subscribe

Wikipedia is being sued for publishing the names of two convicted killers.Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990. They were convicted of the crime in 1993 and sentenced to prison, and recently released. Under German law, publishing the name of a criminal after he has served his sentence is considered an undue infringement of privacy, and is illegal. Accordingly, the German Wiki removed the names of the killers off the page discussing the murder --- but the English language version of wiki, based in the US and operating under the First Ammendment, has not. Now the killers' lawyer has sued the Wikimedia foundation to get them to remove the names.

The case raises important questions about the international enforcement of privacy laws. The Electronic Frontier Foundation has some strong opinions on the matter. And Wire's Threatlevel blog piles on, with pictures.

The New York Time's own covergae of the case risks exposing them to legal action (and further enhacing the Streisand Effect): "In an e-mail message after the interview, [Mr. Stopp, the killers' lawyer] wrote, 'In the spirit of this discussion, I trust that you will not mention my clients’ names in your article.'

Here's a sample of Mr. Sedlmayr's work, and a german language article about the killer's release.

posted by Diablevert (153 comments total) 5 users marked this as a favorite

Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990.

Oh shit dude you're totally going to get mathowie sued.
posted by dersins at 12:33 PM on November 13, 2009 [18 favorites]

....aaaand dersins beats me to the obvious punchline.
posted by Nanukthedog at 12:36 PM on November 13, 2009

The 'some strong opinions on the matter' link is borked. Did you mean this link? Also, just to aid searchers, maybe a mod can clean up some of the typos in the FPP (e.g., ammendment (sic)).
posted by jedicus at 12:36 PM on November 13, 2009 [1 favorite]

The German law sounds goofy to me. Does it mean that the release of Eva Haule in 2007 required the de-publication of the many books about the Baader-Meinhof Gang, for instance, so as not to impinge upon the privacy of Red Faction members who had served their sentences? No wonder they have had such an uphill battle de-Nazifying.

That said, this isn't a First Amendment issue. because it is not the United States government Nor is it a "First Ammendment issue," as the title suggests.
posted by Slap Factory at 12:39 PM on November 13, 2009 [2 favorites]

“In the spirit of this discussion, I trust that you will not mention my clients’ names in your article.”

Yeah, right. Nothing worse than a crybaby murderer.
posted by R. Mutt at 12:39 PM on November 13, 2009 [4 favorites]

I'm of the opinion that you give up claims to being a private person the momenbt you brutally murder someone, but obviously Germany and I don't share that opinion.
posted by Astro Zombie at 12:40 PM on November 13, 2009 [9 favorites]

Man, imagine when the Hitler family lawyer hears about this.
posted by Effigy2000 at 12:40 PM on November 13, 2009 [21 favorites]

I'm going to have to step forward here and say I'm in favor of this law re: privacy in Germany.
posted by dunkadunc at 12:42 PM on November 13, 2009

you know I quite like metafilter, and would rather not intentionally inflict lawyers on those that run it for us... I get that you are exercising your rights in some form, but could you stand on your own soapbox while doing it?
posted by fistynuts at 12:42 PM on November 13, 2009

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.

Anyone here with a legal background who can explain what measures the German government would legitimately take? Would they ban Wikipedia from the country? Have they done this with other websites, for example, such as those affiliated with right-wing extremist groups?
posted by Blazecock Pileon at 12:42 PM on November 13, 2009 [3 favorites]

Under German law, publishing the name of a criminal after he has served his sentence is considered an undue infringement of privacy, and is illegal.

Please, someone give me the argument where this is seen as a good thing. Because I'm all "WTF GERMANY" on this one.

If Charles Manson ever manages to win parole, are we all supposed to put our fingers in our ears and go "la-la-la-can't-hear-you?"
posted by Cool Papa Bell at 12:43 PM on November 13, 2009 [1 favorite]

Michael Godwin, general counsel of the Wikimedia Foundation

Germans . . . against Godwin? In a dispute about law?

This is gonna be good.
posted by brain_drain at 12:44 PM on November 13, 2009 [49 favorites]

Completely farcical

I think Americans forget that many supposed free democracies have no equivalent of the First Amendment and basically lack freedom of speech.
posted by knoyers at 12:45 PM on November 13, 2009 [4 favorites]

That said, this isn't a First Amendment issue

Ah, yeah, it is. In the US, actions like libel are constrained by the First Amendment because a) the government creates the cause of action and b) the government enforces the judgment, if any. Thus, there is state action for the purposes of the Fourteenth Amendment.
posted by jedicus at 12:46 PM on November 13, 2009 [9 favorites]

I'm going to have to step forward here and say I'm in favor of this law re: privacy in Germany.
I'm listening.
posted by june made him a gemini at 12:47 PM on November 13, 2009 [4 favorites]

This German law is fascinating. Does it only apply when the convicted is alive? Otherwise it would seem illegal to teach history... ever.
posted by meowzilla at 12:48 PM on November 13, 2009 [7 favorites]

Man, imagine when the Hitler family lawyer hears about this.

I know this was meant as "haha Godwin Law", but it brings up an interesting point; does this law apply only to people who have gone to trial and served their entire sentences? The first link says "German courts allow the suppression of a criminal's name in news accounts once he has paid his debt to society". If anyone has a link to the law in question (German or English), I'd love to read through it.
posted by specialagentwebb at 12:50 PM on November 13, 2009

Because I'm all "WTF GERMANY" on this one.

While I don't think this law is a good one, I would point out that if any nation of people anywhere ever understood the importance of getting a second chance, it's the Germans.
posted by dortmunder at 12:50 PM on November 13, 2009 [15 favorites]

Diablevert: "The New York Time's own covergae of the case risks exposing them to legal action (and further enhacing the Streisand Effect): "In an e-mail message after the interview, [Mr. Stopp, the killers' lawyer] wrote, 'In the spirit of this discussion, I trust that you will not mention my clients’ names in your article.'"

This seems to be ludicrous. You can't mention these people in any context ever? Can you sue the phone company for pulishing your name in a phone book? Can you sue your utilities companies for putting your name on your bill?
posted by Plutor at 12:50 PM on November 13, 2009

Hah! That's cheeky. I like how the NYTimes writer included the names of the killers as the very first words of the article despite (or rather to spite) the ridiculous request from their German lawyers.
posted by Salvor Hardin at 12:52 PM on November 13, 2009 [1 favorite]

Oh, and I think we're blowing this German law out of proportion. According to that article,

"German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society"

That's in NEWS accounts. Not all written word everywhere.
posted by Salvor Hardin at 12:54 PM on November 13, 2009 [4 favorites]

This is confusing. Say there was a trial in Germany where people were convicted of a serious crime. This trial is reported in the newspapers of the day, as it should be. Then, after the convicted criminals have served their time, and are released, does a data flush then get done on the newspaper record? Are archives purged and names stricken through with a censor's marker?

If not, then how does an ex-con, who has paid their debt to society and now wishes to live a simple a good life, fall below the information radar in the modern world?
posted by Midnight Skulker at 12:55 PM on November 13, 2009 [1 favorite]

The internet sees your paternal nationalism, and raises you a hivemind.
posted by humannaire at 12:55 PM on November 13, 2009 [9 favorites]

Man, imagine when the Hitler family lawyer hears about this.

That would be an interesting twist. Was Hitler convicted in absentia for his crimes? He killed himself, which would seem to have complicated any debt repayment in the form of any judicial punishment. Guess the cat's out of the bag, either way.
posted by Blazecock Pileon at 12:56 PM on November 13, 2009

Well, good luck enforcing German law in America. I think that was already tried once.
posted by spaltavian at 12:57 PM on November 13, 2009 [8 favorites]

That's in NEWS accounts. Not all written word everywhere.

One could argue Wikipedia is in some ways a news source, or at least a news aggregator.
posted by Blazecock Pileon at 12:58 PM on November 13, 2009

Slap Factory, you aren't technically correct here. jedicus gets at it, but I think the missing piece of his legislation is that there doesn't seem to be any way a German court could enforce its decisions over the defendant, an American corporation. It lacks both jurisdiction and a practical way of ensuring that its will is carried out. As such, and as indicated at the end of the NYT article, even if the German court returns a verdict for the plaintiff and orders that the names be removed, Wikimedia can basically just ignore them.

The only way for the plaintiffs to get what they want is to sue in a court of competent jurisdiction, i.e. an American federal court, probably the one in which Wikimedia is physically located (though it's likely any one would do, given the nature of the internet). Here, we do invoke a First Amendment issue, because as jedicus indicates, the Supreme Court has interpreted the enforcement of defamation actions as subject to First Amendment protections.

This makes sense, when you think about it, because the alternative means that there really wouldn't be freedom of speech. True, the government couldn't bring prosecutorial actions, but if private citizens--or government officials acting in their private capacity--could bring actions against speech they didn't like, there doesn't seem to be any obvious limit to restrictions on speech, ergo the protections of the amendment would be largely illusory. If you have the freedom of speech but can be ordered to pay damages to anyone you offend, I'd say that hardly counts as freedom.

In the United States, truth is an absolute defense to defamation claims, and as criminal convictions are a matter of public record, there is no expectation of privacy. As such, there is no legal theory in American jurisprudence under which the plaintiffs could force Wikimedia to remove their names.
posted by valkyryn at 12:59 PM on November 13, 2009 [16 favorites]

That's in NEWS accounts. Not all written word everywhere.

Now that print is dead isn't everything news?
posted by Glibpaxman at 12:59 PM on November 13, 2009

Gah. Substitute "comment" for "legislation" in the first line. Is there a mod in the house?
posted by valkyryn at 1:00 PM on November 13, 2009

Oh lord, it gets even better. The killers are represented by the law firm of Stopp & Stopp. That's right, Wikimedia has been demanded to cease and desist -- by Stopp & Stopp.
posted by brain_drain at 1:00 PM on November 13, 2009 [21 favorites]

Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990
Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr in 1990

P.S. GOOD LUCK I'M BEHIND 7 PROXIES
posted by Inspector.Gadget at 1:03 PM on November 13, 2009 [11 favorites]

So, is it legal to name them in relation to this case? They are plaintiffs here, and it seems that if a news story is circumspect about their backgrounds, it might be legal.
posted by boo_radley at 1:04 PM on November 13, 2009

"German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society"

"allow the suppression"

What does that even mean? Allowing suppression in some cases does not on the face of it imply that non-suppression is disallowed in others. Do the criminal's layers petition for it and it's granted after a hearing of some sort? What are the criteria of such a hearing (if that's how it happens)?
posted by juv3nal at 1:04 PM on November 13, 2009

Was Hitler convicted in absentia for his crimes?

I'm not sure if he was ever convicted, but it at least came up. Richard Posner relates the following in his book Overcoming Law, in a section on Germany's historic difficulties creating an effective judiciary:

"Yet when the defendants were Nazis rather than homosexuals or leftwingers, the full armamentarium of legal casuistry was, in a reprise of the Weimar experience, placed at the disposal of the defendants. So a man who had been Gestapo chief in Danzig during the war and had personally killed four English prisoners was acquitted of the charge of being an accomplice to murder because "with reference to the killing of these four officers in Danzing, the perpetrator was the former Führer and chancellor of the Reich, Adolf Hitler." Applying the doctrine of lenity to Hitler (!), the court proceeded to hold that "it cannot be proven with sufficient certainty that Hitler had an even limited premeditation or malicious intent." So the Gestapo chief was merely an accomplice to manslaughter and was sentenced to two years."
posted by jedicus at 1:06 PM on November 13, 2009 [9 favorites]

Wow.
posted by Blazecock Pileon at 1:08 PM on November 13, 2009

P.S. GOOD LUCK I'M BEHIND 7 PROXIES

Um, your location is in your profile.
posted by Mrs. Pterodactyl at 1:09 PM on November 13, 2009 [13 favorites]

In the US, we're not subject to German law, so this is a simple case on the surface. In Britain and some other European countries, it's illegal to publish identifiable photos of minors without consent, so you have celebrities photographed with little blurs by their side. But here, you can publish the latest Suri Cruise shots.

Different countries, different laws. The NYT isn't under German law either, so if they were sued for publishing the names, the case would get laughed out of court.

In other words, information tends to be free once it is free.
posted by cmgonzalez at 1:11 PM on November 13, 2009 [1 favorite]

I suspect one can find archived articles about the trial online. Do the German newspapers need to go back and remove those articles or redact the names of the killers? I mean, does every reference to their crime need to be found and removed? Isn't that sort of revising history?
posted by Joey Michaels at 1:11 PM on November 13, 2009

Funny thing: last night I rented the movie The Insider, in which a news organization withheld a story because it had been threatened with a lawsuit.

Anyhow, I wonder how German media would cover this lawsuit, if at all. "Wolfgang Werlé and Manfred Lauber are suing the Wikimedia Foundation for mentioning their names in connection with an event 15 years ago that we just can't talk about."

It also makes me wonder if there are libraries in Germany with back issues or microfilms of newspapers that discuss the story when it was news. Are they going to have to go through their archives with black markers? Wikipedia's role in this strikes me as not that different from a library's. How extensive would the historical revision need to be?
posted by adamrice at 1:12 PM on November 13, 2009

Also, do these people not understand how the Internet works at all? I mean, the minute you try to suppress information, the information spreads across the whole thing.

Its like squashing a grape. You just end up exploding the grape all over your kitchen table.
posted by Joey Michaels at 1:13 PM on November 13, 2009 [3 favorites]

Please, someone give me the argument where this is seen as a good thing. Because I'm all "WTF GERMANY" on this one.

I think the general idea here is that the public exposure of the murderer, although perhaps not avoidable, is not supposed to be part of the punishment. The murderer has spent 15 years in prison and has paid what he's owed to society (i.e. the debt determined by the German court). Now that he's out, we need to weigh the right of newspapers to mention his name in online archives against his right to a second chance, a glimmer of hope to a semblance of a normal life.
posted by sour cream at 1:15 PM on November 13, 2009 [8 favorites]

Re: archives:

"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 . . . 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."

valkyryn pretty much nailed the legal issues; but the moral/ethical problems are really interesting to me. The German logic is: “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."

So rehabilitation involves forcing society to 'forget' that the crime ever happened?
posted by r_nebblesworthII at 1:20 PM on November 13, 2009 [2 favorites]

This idea of suing Wikipedia to prevent the public from knowing that Wolfgang Werlé and Manfred Lauber killed well-known German actor Walter Sedlmayr... ?

Well, let's just say that I don't think it's gonna work.
posted by markkraft at 1:23 PM on November 13, 2009 [1 favorite]

Isn't that sort of revising history?

A notion that isn't really all that discouraged in Germany (though it gets more complicated in their legislation, to be sure.)
posted by Navelgazer at 1:28 PM on November 13, 2009

I want someone with deeper pockets than me to set up a website that ostensibly vigorously defends this German law and these two defendants, but which also repeats their names and their crime ad nauseum, so that it becomes the first result on Google when you search for either of their names.
posted by Sticherbeast at 1:30 PM on November 13, 2009

It sounds like a well-intentioned but completely impractical law. I always wonder about what sentences are for, if punishment continues. Does publicity constitute punishment, though?

In some ways it sounds like the flip-side of American-style sex offender laws. You know, where the offender must proactively self-identify as a sex offender long after their sentence is served?

(There's something very wrong with that, but it's hard to put into words.)
posted by rokusan at 1:31 PM on November 13, 2009 [6 favorites]

I can definitely see some merit to the idea that someone who is convicted of a crime and has served their sentence should not have to be painted with the brush of "he did this" for the rest of his life. Here in the US, we're still very attached to the whole Scarlet Letter concept of justice, where even after you get out of prison, you have parole, halfway houses, you have to list all your convictions on your job applications (under penalty of legal punishment)... We have sex offender registries which tar and feather a lot of undeserving people for life, as not everyone on those registries actually committed rape...

I don't see the point of trying to purge past records of offender's names, or trying to make one country follow another country's laws. But I can definitely grok the greater purpose behind this German law. You don't need to have published, 30 years after the fact, "Herr Müller's attackers, Herr Schmidt and Herr Oberst..." when that crime has been paid for and should be in one's past.
posted by hippybear at 1:32 PM on November 13, 2009 [13 favorites]

Inspector.Gadget, don't you mean OVER NINE THOUSAND proxies?
posted by thewalrus at 1:34 PM on November 13, 2009 [2 favorites]

As already stated above ... The logic behind the German law is understandable, but brings up a whole slew of problems when it comes to enforcing such a law, and the German law has no application in US courts.
I don't think the idea behind Germany's stance is to forget that the crimes were committed but to allow people that they believe have been fully rehabilitated the opportunity for as normal a post-jail life possible, but again, there are some major issues related to that. I am imagining news stories worded carefully, something like "One of the two perpetrators of the Sedlmayr murder was released today," or "The Sedlmayr murder was perpetrated by two now-rehabilitated criminals that did ___" and so on ... but the reality is that the general public tends to remember names of high-profile crimes and this all reeks of "la-la-la-la-I-can't-hear-you," as someone noted above.

As far as suing Wikipedia goes, the lawyers could actually accomplish something for financial reasons alone. If the courts decide this should be seen, the defense against such a suit will be costly to both parties, and if Wikipedia caves it will likely be because of this, damn the lack of jurisdiction.

That said, screw the murderers' lawyers.
posted by neewom at 1:34 PM on November 13, 2009 [1 favorite]

jedicus: Applying the doctrine of lenity to Hitler (!), the court proceeded to hold that "it cannot be proven with sufficient certainty that Hitler had an even limited premeditation or malicious intent."

Innocent until proven guilty applies to everyone equally. The very foundations of law would be farcical otherwise.
posted by Brother Dysk at 1:35 PM on November 13, 2009

Interesting.... this appears to be the lawyer in question.

His wife is actually an American lawyer - so I'm surprised that he's tilting at windmills like this. Surely she has told him what's up, and that he doesn't have a snowball's chance in Hell of succeeding?

It seems completely cut-and-dried. The Constitutional question is very clear, US courts are very reluctant to suppress non-commercial speech anyway, and are generally very hostile to foreign powers attempting to impose their laws on the United States. Why are they doing this?
posted by lupus_yonderboy at 1:35 PM on November 13, 2009

Please, someone give me the argument where this is seen as a good thing. Because I'm all "WTF GERMANY" on this one.

It's not a good thing, it's not a bad thing, it's a Germany thing. The fact that the country that you live in doesn't have a law like this is pretty much irrelevant, because every country has laws that some other country goes "WTF FOREIGNLANDIA" about.

If I was a convicted killer in Germany, I'd be doing the same thing as these dudes because the law (arguably) entitles me to such protections.
posted by 23skidoo at 1:36 PM on November 13, 2009 [3 favorites]

The problem with the "repaying debt to society" metaphor is that murder is permanent in a way that most debts are not. I don't know if that's fatal (har har) to your argument as applied to murder but it is a distinction.
posted by r_nebblesworthII at 1:38 PM on November 13, 2009 [3 favorites]

Does publicity constitute punishment, though?

I wouldn't say so, which is why this law, even with good intentions, is a bad one. Their mention on Wikipedia isn't a punishment: it's a consequence. It is a direct and logical consequence of their actions. After one does what they did, there is no "normal" life to return to; there is only the best life one can muster going forward. To censor newspapers in this way is to give convicted murderers what is potentially a life better than "normal."

It reminds me of the scene in Edward Scissorhands where Edward is asked what he would do if he found a suitcase full of money. He would spend it on presents for his loved ones, but not report the lost suitcase to the police. It's "nicer," but it's also the wrong answer.

In some ways it sounds like the flip-side of American-style sex offender laws. You know, where the offender must proactively self-identify as a sex offender long after their sentence is served?

I don't think you're totally off base here, especially when you consider the restrictions on living arrangements that sex offenders often have.
posted by Sticherbeast at 1:38 PM on November 13, 2009 [3 favorites]

Um, your location is in your profile.

It's a forced meme.
posted by Inspector.Gadget at 1:38 PM on November 13, 2009

r_nebblesworthII So rehabilitation involves forcing society to 'forget' that the crime ever happened?

From my reading of it, the law restrains journalism rather than public comment (and certainly not historians). in particular, the journalists of the Murdoch press and other sensationalist tabloids are restrained from making a public spectacle of a released criminal in order to sell papers.
posted by aeschenkarnos at 1:39 PM on November 13, 2009 [3 favorites]

It's not a good thing, it's not a bad thing, it's a Germany thing. The fact that the country that you live in doesn't have a law like this is pretty much irrelevant, because every country has laws that some other country goes "WTF FOREIGNLANDIA" about.

Enh, nah. It's a bad thing. We're not casting judgment on what Germans dress or eat or some other completely cultural and neutral topic. Besides, complete relativism is entirely opposed to progressivism or any other idea that society can be better than it already is. Insert argument here about laws condemning homosexuals to death or whatever.

This is especially true in light of how, in the enforcement of this law, these convicted murderers are trying to force others NOT in the German culture (and legal system) to behave in a certain way.
posted by Sticherbeast at 1:41 PM on November 13, 2009 [3 favorites]

Cow here. Barn there. Close door? /laugh
posted by Xoebe at 1:43 PM on November 13, 2009

I've been thinking about this since it came up in the news, and I've decided this: if your society truly believes that a criminal who serves their time has paid their debt and is no longer a criminal, then you shouldn't need a law to take mention of their crime off the books -- you should just need a law to ensure a postscript is added to the books noting that they have paid their debt.
posted by davejay at 1:44 PM on November 13, 2009 [4 favorites]

You don't need to have published, 30 years after the fact,

The murder was in fact committed in 1990.

"Herr Müller's attackers, Herr Schmidt and Herr Oberst..." when that crime has been paid for and should be in one's past.

I fail to agree. That one has committed a murder should be part of the public record. The victim remains dead forever. If these two men hadn't tortured and murdered him, he'd still be alive.

These people might have served the time - this doesn't give them the right to pretend they never did it. The fact that it's a particularly heinous crime, while it shouldn't really affect the application of the law, certainly casts into strong relief its unfairness.
posted by lupus_yonderboy at 1:46 PM on November 13, 2009 [3 favorites]

r_nebblesworthII So rehabilitation involves forcing society to 'forget' that the crime ever happened?

From my reading of it, the law restrains journalism rather than public comment (and certainly not historians). in particular, the journalists of the Murdoch press and other sensationalist tabloids are restrained from making a public spectacle of a released criminal in order to sell papers.
posted by aeschenkarnos at 1:39 PM on November 13 [1 favorite has favorites +] [!]

Maybe, but one of the killers already won a default judgment against Wikimedia, so according to one German court at least, the law isn't nearly that tame and does not merely restrain "sensationalist tabloids".
posted by r_nebblesworthII at 1:47 PM on November 13, 2009

Enh, nah. It's a bad thing. We're not casting judgment on what Germans dress or eat or some other completely cultural and neutral topic. Besides, complete relativism is entirely opposed to progressivism or any other idea that society can be better than it already is. Insert argument here about laws condemning homosexuals to death or whatever.

It's not cultural? I'll admit that I've never lived in Germany, but the whole notion of "this is a bad thing, Germany" totally flows from the very American notion that people in prison deserve anything that happens to them, during and after they get out of prison. There's nothing wrong (no, really) about a system that tries to make it easier for ex-cons to integrate back into society.
posted by 23skidoo at 1:48 PM on November 13, 2009 [11 favorites]

>Oh, and I think we're blowing this German law out of proportion. According to that article,

"German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society"

That's in NEWS accounts. Not all written word everywhere.

That would actually have the opposite effect if it were all written word everywhere. It would be like basically removing the person's legal status, and in a sense their existence. You can't hire them, they can't own property. Maybe you can't even mention their name.

Like a [NERD ALERT]Trial of Annihilation[/NERD ALERT]!
posted by meowzilla at 1:49 PM on November 13, 2009

Anyhow, I wonder how German media would cover this lawsuit, if at all. "Wolfgang Werlé and Manfred Lauber are suing the Wikimedia Foundation for mentioning their names in connection with an event 15 years ago that we just can't talk about."

Dick Cheney has a German law degree?
posted by webhund at 1:50 PM on November 13, 2009

but the whole notion of "this is a bad thing, Germany" totally flows from the very American notion that people in prison deserve anything that happens to them, during and after they get out of prison.

NO, that's completely wrong, and no one has said that or anything at all that might faintly be construed to meaning that.

I'm "left-wing," whatever that means. I'm strongly, strongly in favour of prisoner's rights for a large number of reasons.

I'm simply saying that a murderer should have no right to rewrite history so his crime never existed - and that's it's particularly arrogant for this murderer to expect to be able to impose your will and rewrite history all over the world.

If you can justify this specific case, go ahead. But please don't introduce a straw man so dissimilar to what people here are actually arguing, it's offensive.
posted by lupus_yonderboy at 1:58 PM on November 13, 2009 [9 favorites]

An unsere deutschsprachige Besucher: dieser Thread handelt sich um Wolfgang Werlé and Manfred Lauber, die im Jahr 1990 Walter Sedlmayr gemordet haben.
posted by $5 at 2:00 PM on November 13, 2009 [2 favorites]

(Auch an unsere googlebotische Besucher.)
posted by $5 at 2:00 PM on November 13, 2009

This law is really to protect them from the German Batman, who doesn't share the American Batman's ethical sense.
posted by Astro Zombie at 2:06 PM on November 13, 2009 [11 favorites]

The Constitutional question is very clear, US courts are very reluctant to suppress non-commercial speech anyway, and are generally very hostile to foreign powers attempting to impose their laws on the United States.

That's an interesting perspective in light of this question from the other day.
posted by 6550 at 2:09 PM on November 13, 2009

I can definitely see some merit to the idea that someone who is convicted of a crime and has served their sentence should not have to be painted with the brush of "he did this" for the rest of his life.

The question is: does the merit behind this idea of "removing the scarlet letter" outweigh our concerns with infringing of free speech?

Given the great impact the freedom of press has had on our country, and the related social and political benefits it has brought us, my intuition says No.

I think the German idea has a lot of merit to it: just not enough to overcome the danger of significantly eroding first amendment rights.
posted by HabeasCorpus at 2:12 PM on November 13, 2009 [1 favorite]

You don't need to have published, 30 years after the fact,

The murder was in fact committed in 1990.

"Herr Müller's attackers, Herr Schmidt and Herr Oberst..." when that crime has been paid for and should be in one's past.

I fail to agree. That one has committed a murder should be part of the public record. The victim remains dead forever. If these two men hadn't tortured and murdered him, he'd still be alive.

These people might have served the time - this doesn't give them the right to pretend they never did it. The fact that it's a particularly heinous crime, while it shouldn't really affect the application of the law, certainly casts into strong relief its unfairness.

Riiiiiight.... except that I purposely didn't use any of the facts in this specific case because I was discussion the concept of the German law and not this particular example of its application. Hence, none of the names or particulars that I mentioned pertained to the case.

I suppose you believe that ALL murderers should be locked up for life or executed, rather than ever released into the general population again, because of the fact of the permanence of their crime? What about property damage? Destroying huge amounts of valuable art pieces -- those are all completely irreplaceable, and while they don't have "equal value" to a human life, they certainly can never be reconstituted into existence. Perhaps all those who destroy art should also be locked up forever, since their crimes can never be rectified?

I don't think anyone is trying to pretend that someone has never done a crime. But, as someone said earlier in this thread, the Germans understand better than ANY OTHER NATIONAL GROUP the value of granting people a second chance in life.
posted by hippybear at 2:12 PM on November 13, 2009 [1 favorite]

Jedicus: Ah, yeah, it is. In the US, actions like libel are constrained by the First Amendment because a) the government creates the cause of action and b) the government enforces the judgment, if any. Thus, there is state action for the purposes of the Fourteenth Amendment.

Please read the article, 1L. This is a lawsuit filed in German courts. NY Times v. Sullivan -- to the extent that it would have any application at all in US courts in this particular case -- does not apply there.

Valkyryn: Slap Factory, you aren't technically correct here. jedicus gets at it, but I think the missing piece of his legislation is that there doesn't seem to be any way a German court could enforce its decisions over the defendant, an American corporation. It lacks both jurisdiction and a practical way of ensuring that its will is carried out. As such, and as indicated at the end of the NYT article, even if the German court returns a verdict for the plaintiff and orders that the names be removed, Wikimedia can basically just ignore them.

Not quite. I am completely technically correct that there is no First Amendment issue with German plaintiffs bringing an action against a US corporation with a web presence in Germany in the German courts, for the technical reason that the First Amendment does not apply in German courts. Note that German courts are not bound by International Shoe either, and they might well decide that they do have jurisdiction over wikipedia.

You are raising the separate issue of whether any judgment might be enforced against wikipedia. The answer is, maybe. Issues about the enforceability of foreign libel judgments come up all the time. That's why many states -- including the State of New York -- are considering legislation that limit the enforceability of so-called "libel tourism" judgments. More information on the legislation, and the issues that have given rise to it, can be found here. As the cited cases suggest, even if wikipedia does not have assets that can be attached or seized in Germany, there are good reasons for an American corporation to wish to avoid having foreign judgments entered against them.
posted by Slap Factory at 2:17 PM on November 13, 2009 [5 favorites]

You do understand why these are not the same thing, right? Also, that your comment is pretty much just childish noise?

One is true and one is not. But when reduced to the level of, okay we'll use your term, childish noise, they have pretty much the same effect. I thought it was an interesting comparison given how German law handles the problem.
posted by Naberius at 2:18 PM on November 13, 2009

Or tries to handle the problem anyway.
posted by Naberius at 2:19 PM on November 13, 2009

Cow here. Barn there. Close door?

Cow?

Dude, if your cows are running off and you can't catch them, you really need to cut back on the cheeseburgers.
posted by rokusan at 2:19 PM on November 13, 2009 [2 favorites]

This law is really to protect them from the German Batman, who doesn't share the American Batman's ethical sense.

Meine Eltern sind TOOOOOOT! (smack!)
posted by Naberius at 2:25 PM on November 13, 2009 [1 favorite]

> The question of excising names from archives has not yet been resolved by the German courts, he said.

That's insane. This whole concept is insane. I don't care if "Germans understand better than ANY OTHER NATIONAL GROUP the value of granting people a second chance in life," this law is nutso and should be slapped down before it erodes free speech around the world. And yeah, a lot of Nazis got a "second chance" in post-WWII Germany, without even having to acknowledge guilt or suffer the slightest punishment. I guess they do understand the value of a second chance.
posted by languagehat at 2:35 PM on November 13, 2009 [3 favorites]

[Answer to "I can haz glenn beck nao?" is still HELLZ NO please stop that here, thank you.]
posted by jessamyn at 2:35 PM on November 13, 2009 [2 favorites]

I don't see how laws preventing the speech of a convicted felon's name and crime in the same breath benefits anyone other than that individual. Indeed, society is arguably endangered.

I wonder how a few posters here would respond if the plaintiffs in this case were child rapists. What is the difference?

No criminal deserves the option of erasing the history of his or her crime. That others might treat you differently because you are a known murderer is justice.
posted by knoyers at 2:36 PM on November 13, 2009

[Answer to "I can haz glenn beck nao?" is still HELLZ NO please stop that here, thank you.]

OMG I feel like I'm posting from China!!!1one
posted by r_nebblesworthII at 2:37 PM on November 13, 2009

Joey Michaels : I mean, the minute you try to suppress information, the information spreads across the whole thing.

Exactly. All they've succeeded in doing is going from being a historical footnote in a wiki article I never would have read, to creating enough noise that I'm now made fully aware that in 1990 Wolfgang Werlé and Manfred Lauber murdered an actor Walter Sedlmayr.

Way to stay off the radar guys.
posted by quin at 2:40 PM on November 13, 2009 [1 favorite]

But, as someone said earlier in this thread, the Germans understand better than ANY OTHER NATIONAL GROUP the value of granting people a second chance in life.

Ok, honestly? This whole line of reasoning just pisses me off. German people murdered my great-grandmothers. Because German people slaughtered my great-grandmothers, now German courts can sue me if I sit in my living room in America and post something on the internet about German murderers? The idea is that German people have some sort of privileged understanding of the murder of my great-grandmothers by their countrymen, and my understanding of murder and redemption doesn't count? Fuck that. Like most German people, I have a complicated and conflicted relationship with the legacy of the Nazis. And I refuse to concede that their understanding of that semi-shared legacy is more legitimate than mine, to the point where they get to sue me over it.

I feel really strongly that people who commit crimes ought to be able to get on with their lives at some point. I don't think that this sounds like a particularly good way to ensure that, though. And the idea that German courts would impose their restrictions on people in other countries seems deeply problematic to me.
posted by craichead at 2:48 PM on November 13, 2009 [4 favorites]

Maybe Bono had the right idea putting that wall back up.
posted by Sys Rq at 2:57 PM on November 13, 2009

I'm simply saying that a murderer should have no right to rewrite history so his crime never existed - and that's it's particularly arrogant for this murderer to expect to be able to impose your will and rewrite history all over the world.

If you can justify this specific case, go ahead. But please don't introduce a straw man so dissimilar to what people here are actually arguing, it's offensive.

I didn't introduce a strawman, I responded to the notion that "this is not a cultural thing". I'm not talking about what people HERE are arguing (because hardly anyone in this thread is giving reasons why they feel this is awful, they're just saying it's obviously awful), I'm talking about the general culture of what Americans think about prison and life after prison as a data point to suggest that there is a cultural element to this.
posted by 23skidoo at 2:57 PM on November 13, 2009 [1 favorite]

Maybe Bono had the right idea

Let's not go totally batshitinsane, here.
posted by Blazecock Pileon at 2:59 PM on November 13, 2009 [4 favorites]

Please read the article, 1L.

Actually, I have my JD.

You are raising the separate issue of whether any judgment might be enforced against [the Wikimedia Foundation].

It's a separate legal issue but as a practical matter an unenforceable judgment is hardly worth the paper it's printed on.

The answer is, maybe.

In the sense that there's not a case directly on point, perhaps, but there's plenty of analogous precedent in favor of refusing to recognize the judgment and not much opposed. For examples of cases where courts have refused to recognize foreign libel and defamation judgments as repugnant to the laws of the United States, particularly the First Amendment, see Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995); Abdullah v. Sheridan Square Press, 154 F.R.D. 591 (S.D.N.Y. 1994); Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (Sup.Ct. 1992). See also S.A.R.L. Louis Feraud Int'l v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007) (holding "Foreign judgments that impinge on First Amendment rights will be found to be "repugnant" to public policy."); Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181 (N.D.Cal. 2001) (holding "[T]his Court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders."), rev'd on other grounds, 433 F.3d 1199 (9th Cir. 2006) (en banc)
posted by jedicus at 2:59 PM on November 13, 2009 [7 favorites]

I think it's obvious that there's a cultural element to it, 23skidoo. There's a huge cultural element to the entire American obsession with free speech, which isn't shared by most people in other democratic countries. But this isn't just about cultural attitudes towards free speech. It's about whether the inherently transnational nature of the internet gives countries the right to impose their restrictions on people located outside their borders.
posted by craichead at 3:00 PM on November 13, 2009 [1 favorite]

There's a lot of Straw Men going on here, especially from you, Lupus. No one is arguing that the crime can never be mentioned or discussed etc. Simply that it should be kept out of NEWS articles. That's very different from pretending that it never happened.

It would be easy to say that attitudes re: naming and shaming are peculiarly American, especially given the country's status as one of the few developed countries on earth where the government still kills people, however sadly I think the impulse for vengeance is a far more universal one.
posted by smoke at 3:02 PM on November 13, 2009 [3 favorites]

Simply that it should be kept out of NEWS articles.

I don't understand this argument. Whatever it is, Wikipedia isn't a news article.

I'm curious whether this would extend to, say, celebrities or people running for office. If I were writing about his role as a radio personality, would I have to pretend that G. Gordon Liddy had never been convicted of anything? Could I mention George W. Bush's drunk driving arrests? Could I mention Martha Stewart's stint in prison if I were a journalist writing a profile of her? What if someone brought it up themselves as a formative life experience?
posted by craichead at 3:09 PM on November 13, 2009 [2 favorites]

With respect to the jurisdiction issues I'm reminded of this case against Yahoo!, though I think Yahoo! do have assets in France?
posted by robertc at 3:12 PM on November 13, 2009

I am hardly ever in favor of being "tougher on crime," because we in the U.S. have carried it so far that our legal system is almost completely lacking in compassion. We abuse and dehumanize criminals and it doesn't lead to less crime, it leads to more crime.

I strongly feel that when people have done their time, they should regain the rights of any other citizen. The laws in some U.S. states that deprive former felons of their voting rights are, in my opinion, unconstitutional and morally wrong.

All that said, this is a really dumb law you've got there, Germany.
posted by drjimmy11 at 3:14 PM on November 13, 2009 [3 favorites]

I think Americans forget that many supposed free democracies have no equivalent of the First Amendment and basically lack freedom of speech.

This is an absurd conclusion to draw. Every country, including the US, limits freedom of speech. Different countries have different ideas about what are acceptable reasons for limiting freedom of speech and what limits are appropriate for different reasons.

Privacy is a fairly common reason for limiting free speech: Your doctor cannot publish your medical information; your professors cannot tell your parents you're a drunk who dropped out 3 months ago; I believe in most places newspapers cannot publish the name of a sexual assault victim; a store can't list your full credit card number on your cash register receipt; a bill collector cannot discuss your debts with your neighbour. There are more examples, I'm sure.

And there are non-privacy limits on free speech, too: You cannot call someone 400 times an hour because they broke up with you and you want them backl you cannot stand outside and 3am and sing Sweet Child o'Mine while people are trying to sleep; you cannot yell fire needlessly in a crowded theatre; you cannot cover the highway safety signs with your billboard; you cannot print up your own New York Yankees jersies to sell in the atrium of city hall; you cannot speak in court unless it's your turn; you cannot publish malicious lies about people, etc. etc.

So yes, Germany has limits on free speech. So does the US. If you know a place that doesn't, I'd be interested to hear how that's working out for them. However, I would not conclude from the simple, obvious, and inevitable facts that there are limits on freedom of speech in Germany or anywhere else that there is no free speech.

That said, this German law is stupid.
posted by If only I had a penguin... at 3:17 PM on November 13, 2009 [5 favorites]

I'm still waiting for Wolfgang Werlé and Manfred Lauber to deny that they have any involvement with the rape and murder of a young girl in 1990. So far there has been only silence!
posted by thewalrus at 3:18 PM on November 13, 2009

All that said, this is a really dumb law you've got there, Germany.

The US has the same law for minors convicted of crimes I believe. The law makes sense with a 16 year-old but not a 20 year-old?
posted by GuyZero at 3:19 PM on November 13, 2009 [4 favorites]

It may be relevant that the victim was well-known - maybe the criminals fear reprisal attacks? If so, they have a very good reason not to want their names well-known; there are too many people around who think that two wrongs make a right, and just might want to dole out ther own brand of justice.

It's not all that similar, I suppose, but this case does remind me of James Bulger's murder. Bulger was a toddler, murdered by a couple of sociopathic ten-year-olds (Jon Venables and Robert Thompson). Both of them are now out of prison, with new identities that cannot legally be revealed.

I wasn't very old when Bulger was murdered, but I do remember the intense anger felt by an awful lot of people - I really think they'd be in fear for their personal safety if the media was free to report their new names. Particularly given that certain newspapers I could mention would be viciously gleeful in reporting their locations on a day-by-day basis if they thought they could get away with it.
posted by ZsigE at 3:26 PM on November 13, 2009 [4 favorites]

The law makes sense with a 16 year-old but not a 20 year-old?

You have to draw a bright line somewhere when it comes to age and the law, so yes.

Unless you want 8-year-olds driving, that is.
posted by dersins at 3:27 PM on November 13, 2009

If not, then how does an ex-con, who has paid their debt to society and now wishes to live a simple a good life, fall below the information radar in the modern world?

Working in re-entry, this comes up a lot. And the answer is, basically, they can't. In the age of the internet and with evidence of criminal activity appearing even on credit reports, the period of time where expungement was a remedy is nearing its end. For people who committed their crimes before the internet or for crimes not resulting in a conviction, it still might be a solution (as per this recent Wall Street Journal article), but for those individuals being arrested and convicted now or in the last decade, particularly for felony offenses, expungement isn't going to help at all.

Which isn't necessarily a bad thing, actually, if you believe that getting "a second chance" requires taking responsibility for your crime and your past (which I, coincidentally, do). But it does mean that the answer to "how can I find a job/housing/etc. with a criminal record?" can't continue to be "have you looked into expungement?" We need solutions that help people re-start their lives - and a society that has the compassion to support their efforts - that don't rely on pretending the past didn't happen.
posted by lunit at 3:47 PM on November 13, 2009 [7 favorites]

The US has the same law for minors convicted of crimes I believe. The law makes sense with a 16 year-old but not a 20 year-old?
posted by GuyZero at 3:19 PM on November 13

You're wrong.
posted by the other side at 4:05 PM on November 13, 2009

Man, common law is such a drag. So many cases to wade through.
posted by GuyZero at 4:09 PM on November 13, 2009

The fact that the country that you live in doesn't have a law like this is pretty much irrelevant, because every country has laws that some other country goes "WTF FOREIGNLANDIA"

Ah yes, the notion of moral relativity, in which literally anything can be justified because you happen to be standing in a different place. WTF 23skidoo? Can I have a country where it's A-OK to (insert repugnant act here) and no one gets to say boo, because it's my country? Fuck that.

This law is nuts because it's approaching the legislation of the very notion of reality. Taken to it's practical endpoint, it's literally demanding that the truth cannot be spoken, backed by the threat of legal force.

Chris Brown will finish his community sentence service.

So, who exactly beat Rhianna that night?

Umm ... some guy. Excuse me, some person. I don't want to identify him. I mean, the person. Because in Germany, the first rule of fight club is ...
posted by Cool Papa Bell at 4:17 PM on November 13, 2009 [2 favorites]

hippybear wrote: I suppose you believe that ALL murderers should be locked up for life or executed, rather than ever released into the general population again, because of the fact of the permanence of their crime?

It's like you're going out of your way to deliberately misinterpret what I wrote.

Tell me - what part of this is ambiguous to you? Need I tell you more about the disgust with which I hold the prison system? How much I'm in favour of rehabilitation rather than pointless punishments that simply lead to more crime?

The part I disagree with is using the legal system to force people to pretend as if it never happened - to rewrite history. Have I not made myself completely clear above?

If you can refute that, do so. Regardless, stop putting words in my mouth - words that are completely foreign to my belief system.
posted by lupus_yonderboy at 4:18 PM on November 13, 2009

Inspector.Gadget, don't you mean OVER NINE THOUSAND proxies?

i like that episode. it's the one where he says 'Go-Go-Gadget Proxies!!' and somehow winds up stuck in the internet.
Right?

Hello?
posted by mannequito at 4:27 PM on November 13, 2009

There was an interesting story on NPR about a lawyer who used to spend most of his tmie getting his client's criminal records expunged. He now spends time writing letters explaining his clients criminal history since even if expunged, the records live on in databases (and google) used by creditors, landlords and employers. Of course, these are people who simply arrested (but not convicted) or convicted of a non-violent crime.
posted by vespabelle at 4:28 PM on November 13, 2009 [3 favorites]

There is no special law on this in Germany. It is just the current interpretation of German law on personality rights in which the public interest to know the names has to be balanced against every citizens right on privacy. This is also why the example of Hitler is a stupid one (well even without it, it would be a stupid one). Having said this, a final decision by the European Court of Justice and the Federal Court of Justice of Germany in the case discussed here is still outstanding (only German).

It also seems that at least in California similar court rulings exist. Also see this German dissertation on personality rights in Germany and the USA that mentions the following cases:

Melvin v. Reid, 112 Cal. App. 285, 297 (1931); Briscoe v. Readers Digest Asso., 93 Cal.
Rptr. 866, 1 Media L R 1845 (1971); Conklin v. Sloss, 150 Cal. Rptr. 121, 4 Media L R
1998 (1978); Kinsey v. Macur, 165 Cal. Rptr. 608 (1990)
posted by jfricke at 4:29 PM on November 13, 2009 [6 favorites]

It's not cultural? I'll admit that I've never lived in Germany, but the whole notion of "this is a bad thing, Germany" totally flows from the very American notion that people in prison deserve anything that happens to them, during and after they get out of prison

Wow, not just a straw man, a whole straw barbershop quartet.

Ideas are not inviolate just because they are in some way related to a culture. If you would agree that a culture which homosexuals are regularly attacked and beaten is not above criticism, then you agree with me in principle. This law is not as atrocious as beating homosexuals (or anyone else), but if you agree that such conduct is not above reproach merely because it hails from a different culture, then we differ only in degree.

Or maybe you don't agree. So, every time there's a story about an unjust American law or other miscarriage of justice, we can ban the IPs of all the non-Americans, because clearly they just don't get our culture.

Besides, the "very American" notion that "people in prison deserve anything that happens to them[!??!?!]" is not only a straw men in and of itself, but it's not a view I share, nor have I seen it expressed here elsewhere. Publishing their names in the paper is in no way the equivalent of firebombing their cars or chortling at their being raped in prison.

Elsewhere...

But, as someone said earlier in this thread, the Germans understand better than ANY OTHER NATIONAL GROUP the value of granting people a second chance in life.

I don't see any reason why Germans as a group as opposed to anyone else would actually "understand" any more or less about that than anyone else, really. I don't know why that would factor into my own private judgment of any particular law, either.
posted by Sticherbeast at 4:32 PM on November 13, 2009

It also seems that at least in California similar court rulings exist.

Actually the page you linked to only discusses the precipitating events in that case. The California Supreme Court held that the Discovery Channel's disclosure of Gates's conviction was protected by the First Amendment [doc]: "Accordingly...we conclude that to an invasion of privacy claim based on allegations of harm caused by a media defendant's publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment to the United States Constitution." Gates v. Discovery, 34 Cal. 4th 679, 696 (2004).

In Gates the court also expressly overruled the Briscoe v. Readers Digest Asso. case that you mentioned. Id. at 697.

This is further distinguished from a case like Kinsey v. Macur where the information disclosed was an embarrassing, private fact (he had been accused of murdering his wife) because the plaintiff had been acquitted and substantial time had passed.
posted by jedicus at 4:59 PM on November 13, 2009 [2 favorites]

Questions of jurisdiction/First Amendment aside, when is a piece of publicly-viewable electronic record considered to be "published"? Is it the the date last modified? Or is it considered to be continually published so long as the host makes it available? That last option would be stupid, in my opinion, but why else would the EFF spokeswoman in the Wired link say that existing online archives would have to be purged? And would that mean that library books would need to be redacted or kept from circulation, as well?

Then's there the EFF link, which seems to proceed from the assumption that the German law says you can't publish the dude's name after said dude is considered a private citizen again (i.e., after he's "paid his debt to society"). But whenever the dude is a public figure, as he is by being the subject of a news story*, for example, he's fair game. (I would assume that people who reach "historical figure" status are also considered public figures for these purposes.)

* by which the Germans seem to specify as reporting about current events of genuine interest to the public, with the proviso that info about an old crime is not in the legitimate interest of the public, historical events excepted.

If the law is as portrayed in the EFF link, it sounds like a good law that protects private citizens from having their privacy invaded and being harassed by the media. And funny the EFF piece doesn't mention the claim of their own spokeswoman that this would somehow call for editing existing records. In my opinion, if the law doesn't require the purging of any existing records from when the guy was considered a public figure, and just prevents current stories from identifying the guys by name, I don't have a problem with it. What I have a problem with is their seeming view of "publish" as it applies to a continuously-updated source of information on the Internet.

(On preview, what jfricke said.)
posted by Robin Kestrel at 5:10 PM on November 13, 2009 [1 favorite]

you have to list all your convictions on your job applications (under penalty of legal punishment)

I don't believe this is the case. As far as I can remember, a company can ask for this information but they are required to tell you that you are not obligated to provide it (though not entirely sure about it). However, a background check can be a condition of employment in many states, so it may be a moot point in those cases.
posted by krinklyfig at 5:23 PM on November 13, 2009

with the proviso that info about an old crime is not in the legitimate interest of the public, historical events excepted.

What's the difference between an "old crime" and a "historical event"?
posted by craichead at 5:25 PM on November 13, 2009

This is an absurd conclusion to draw. Every country, including the US, limits freedom of speech. Different countries have different ideas about what are acceptable reasons for limiting freedom of speech and what limits are appropriate for different reasons.

I think it was perhaps not phrased the best way, but maybe what the original point was that the US is rare in the sense that free speech is considered an inalienable right. This is different than the way the law interprets speech in many other western democracies, though freedom of speech as a legal concept is always essential to the functioning of a democracy and is usually treated as important, but not quite as a right in all cases.
posted by krinklyfig at 5:31 PM on November 13, 2009 [2 favorites]

craichead: What's the difference between an "old crime" and a "historical event"?

The Shooting of Jose, That One Guy From The Bakery vs. The Assassination Archduke Ferdinand? I don't know, really. I would be nice to have an analysis of what the law really calls for, and whether online info in Germany is routinely redacted to comply, which just seems incredible to me.
posted by Robin Kestrel at 5:44 PM on November 13, 2009

We need solutions that help people re-start their lives - and a society that has the compassion to support their efforts - that don't rely on pretending the past didn't happen.

Sounds like the law should incorporate the concept of rights of ex-prisoners. It's thorny, but I think it's important that the criminal justice system assert the rights of people who have served their time or paid their debt to society. That is, if the goal is at all to rehabilitate people and reintegrate them, and it should be, otherwise this is all just primitive punishment, and we end up with a permanent criminal underclass. I think it's a practical answer, but people in the US are emotionally overcharged about crime and punishment, so what's practical often takes a back seat to what's the most popular solution, or which is the most lucrative for the people making the decision. Our problem in the US is we barely consider the criminal's rights or what happens when they're released from prison, though I don't think we should prevent the press from reporting names of previously convicted criminals, unless there is a compelling reason (e.g., crime committed as a minor).
posted by krinklyfig at 5:45 PM on November 13, 2009 [2 favorites]

The Shooting of Jose, That One Guy From The Bakery vs. The Assassination Archduke Ferdinand? I don't know, really.

Neither do I. But I have a fairly large thing in my dissertation about a trial that, while it made front page news at the time, is now totally obscure. The identity of the defendant is actually pretty important, because he shows up elsewhere in my dissertation. I'm not arguing that the trial itself changed the course of history: it's a lens through which to look at how my subjects made their case to the general public and how it was received by the people they hoped to sway. Is that "historical events" or "old crime"? Is it a problem in Germany to use court records in historical work that doesn't deal with great historical figures and major world-changing events?
posted by craichead at 5:50 PM on November 13, 2009

hat last option would be stupid, in my opinion, but why else would the EFF spokeswoman in the Wired link say that existing online archives would have to be purged? And would that mean that library books would need to be redacted or kept from circulation, as well?

The question I keep coming back to is, what is Wikipedia? It really isn't news, per se, but it is a continuously updated encyclopedic archive of information that "the public" enters into it. It tracks the flow of information but does not claim to report current events or follow any journalistic conventions. I don't know if the German law makes the distinction of what qualifies as media, but I have to say I am not at all convinced that Wikipedia qualifies in any way. Not that they have any jurisdiction, but if Wikipedia is considered news, than any online source of information that is updated to incorporate new events is considered news, and there must be some sort of distinction between the press and the non-press world.
posted by krinklyfig at 5:56 PM on November 13, 2009 [1 favorite]

you cannot stand outside and 3am and sing Sweet Child o'Mine while people are trying to sleep

You don't own me!
posted by kid ichorous at 6:24 PM on November 13, 2009 [2 favorites]

I think us Americans should develop some kind of code word for when we are super excited to feel superior to some other western country the couple times per year it happens. When I hear about .au banning video games and censoring the internet, and crazy shit like this, I want to sort of have a secret cheer with my fellow nationals.

But it has to be deniable if someone claims you're cheering, because if we do it in public someone is just going to bring up something shittier-and-true about the US and ruin our parade.
posted by floam at 6:46 PM on November 13, 2009 [1 favorite]

I believe in most places newspapers cannot publish the name of a sexual assault victim

They can, most choose not to. See, for example this collection of cases involving naming dilemmas collected by Indiana University.
posted by Diablevert at 7:09 PM on November 13, 2009

Wolfgang Werlé and Manfred Lauber, die im Jahr 1990 Walter Sedlmayr gemordet haben

d.h. Wolfgang Werlé und Manfred Lauber, die ihn gemordet haben…
posted by one more dead town's last parade at 7:27 PM on November 13, 2009

Wow, Americans with no respect for the laws of other countries? Never heard of that before.
posted by Gamien Boffenburg at 7:37 PM on November 13, 2009 [3 favorites]

Wow, Americans with no respect for the laws of other countries? Never heard of that before.

I hope this is some kind of double-negative sarcastic sarcasm that's over my head.

Else: really? Reaaally?
posted by floam at 7:43 PM on November 13, 2009 [3 favorites]

This law is ridiculous, How does is a murder and subsequent public trial in any way a private affair? Judicial trials are important public proceedings and the more transparent they are the better society is. Should the records of the lawsuits against tobacco companies be expunged now the the companies have paid their fine and their debt to society?

in particular, the journalists of the Murdoch press and other sensationalist tabloids are restrained from making a public spectacle of a released criminal in order to sell papers.

Thanks for showing why speech needs to be protected, even on a lefty site like metafilter this kind of sentiment is way to common.
posted by afu at 8:25 PM on November 13, 2009

so, let me get this straight

in 1923, adolf hitler attempted an overthrow of the government in the beer hall putsch

in 1924, he was convicted of high treason - later that year, he was pardoned and released, thus "paying his debt to society"

does that mean under current german law, i am forbidden from mentioning herr hitler's criminal conviction?
posted by pyramid termite at 8:52 PM on November 13, 2009

Else: really? Reaaally?

Yeah. Really.
posted by Gamien Boffenburg at 9:53 PM on November 13, 2009 [1 favorite]

pyramid termite: "does that mean under current german law, i am forbidden from mentioning herr hitler's criminal conviction?"

I have a sneaking suspicion that dead people have no right to privacy. Too bad for the zombies.
posted by wierdo at 10:26 PM on November 13, 2009

afu Thanks for showing why speech needs to be protected, even on a lefty site like metafilter this kind of sentiment is way to common.

I'll assume that your fractured grammar there derives from an attempt to be "cool" by sarcastically disagreeing with me through the mechanism of insincere thanks rather than, y'know, actually just saying what you think. Which, since you didn't do that, isn't actually there.

Why would X's right to speak trump Y's right to live free from harassment? Both rights are important, but I would suggest that the second is more so.
posted by aeschenkarnos at 10:26 PM on November 13, 2009

Yeah. Really.

Game on buddy!

Just to get things straight here. You assert that encyclopedias in the US should censor themselves to comply with laws that limit freedom of the press in countries that aren't the US, else they're another example of Americans shitting on the laws of other countries?

Preemption: of course, an easy cop out would be: "sure they're shitting on them and these awful laws which restrict freedom of speech should be shat on". But that would not be true to the tone of your post whatsoever. It was clearly negative.
posted by floam at 11:09 PM on November 13, 2009

Why would X's right to speak trump Y's right to live free from harassment? Both rights are important, but I would suggest that the second is more so.

Is the former really the nearest (proximate?) cause of the latter? Stopping harassment by hiding and suppressing the kinds of information that may lead to harassment seems a little like security through obscurity. Legal complexities aside, attempting to control the flow of information over the entire English-speaking internet is going to be a difficult technical problem.
posted by kid ichorous at 11:48 PM on November 13, 2009

Game on buddy!

Perhaps he's referring to, say, the US government abducting people from Italy and torturing them?

There's no shortlist of examples. But don't let me detract from the orgy of American self-congratulation and the usual mefi German-bash.
posted by rodgerd at 12:05 AM on November 14, 2009 [2 favorites]

I have no idea why he'd be referring to that when this article has nothing to do with that, and as far as I can tell nobody has mentioned it, rodgerd.
posted by floam at 12:14 AM on November 14, 2009 [2 favorites]

totally flows from the very American notion that people in prison deserve anything that happens to them

I think it flows from the fact that most MeFites are actually going to have a lot of sympathy for somebody that's done their time and is getting pestered, but they believe in the right to free speech enough that they're not willing to make exceptions for things that would make them feel better. They're bummed out Germany doesn't appear to be as noble, on something even the fricking US seems to almost have down.
posted by floam at 12:18 AM on November 14, 2009

I'll assume that your fractured grammar there derives from an attempt to be "cool" by sarcastically disagreeing with me through the mechanism of insincere thanks rather than, y'know, actually just saying what you think. Which, since you didn't do that, isn't actually there.

Sorry, I think you have no understanding of why freedom of the press is important since you think that press ownership and political affiliation ("the Murdoch press") are good reasons suppress speech.

Here is a link to a Wikipedia article to help you out.
posted by afu at 12:58 AM on November 14, 2009 [1 favorite]

So what is a news source in the Internet Age? Arguably, everything on the web is news and everyone who can blog, twitter, or update a FaceBook status is a journalist.

Clay Shirky makes a good argument for the spread of journalism in the case of GnarlyKitty and the Thailand coup in 2006.

The example I always return to, because I think it’s so emblematic and so crazy, is Alisara Chirapongse, who I’ve written about in Here Comes Everybody. She was blogging under the name gnarlykitty, and she was a fashion-obsessed college student in Bangkok. And so she was blogging about cute shoes and going out dancing, and then there was a coup in Thailand. And so she started blogging about the coup. And Thailand shut down the regular media, but they didn’t shut down Web logs. So she took her little camera out, she took a picture of tanks in front of a government building, and it was one of the first pictures to come out of Thailand during the coup. And so, all of a sudden, she’s committed an act of journalism.

It's perfectly straightforward for a government to shut down a newspaper or radio station if the laws permit it, but what are you going to do when everyone is a journalist? Is Germany going to go all Burma on this and suppress the Web generally?

Germany? Probably not. Instead we'll have to deal with the negative consequences of this potentially-everyone's-a-journalist new world. The old press was brodcast --- from the few to the many --- and as well as rights it had responsibilities, and could be restrained. Because of its limits and its power, it was possible to develop an ethics around it. (Please insert the usual disclaimers and objections about the failure of the modern press to live up to any ethic, inform the public, be objective, or act in a responsible manner and take them as read.)

Take, say, naming a sexual assault victim. There is currently a convention in the American media that this ought not to be done. The ethic has not always been adhered to, and when it has not this breech has often been the subject of much discussion and argument. But in a world where everyone can broadcast, can it survive at all? It's all too easy to imagine the sibling, friend, or signifigant other of an accussed perpetrator naming the victim in a Facebook post or starting a web page designed to disparage them. The key point is, in the new media world, that angry individual's facebook post might easily be disseminated just as widely as an A1 story in the paper would have been previously. The paper had certain intangible forces and fears operating on it to restrain it --- internal ethics and policies, fear of being sued, the desire to maitain a reputation as reliable and in line with the mores of the community it served, if only to keep up its circulation and appease its advertizers. Of these, only the fear of being sued might possibly obtain for an individual, and it seems much less likely to be an effective restraint.

It's easy to see the huge potential benefits of the everyone can broadcast model. Look at Iran this June. But sometimes people seem unwilling to acknowledge any possibility of cost....
posted by Diablevert at 8:28 AM on November 14, 2009 [1 favorite]

Why would X's right to speak trump Y's right to live free from harassment? Both rights are important, but I would suggest that the second is more so.

If someone you interact with on a daily basis had, in the past, committed MURDER, was charged with MURDER, was convicted of MURDER, was incarcerated for MURDER, had been "rehabilitated" for MURDER, would you perhaps want to know about that MURDER? What if the victim of that MURDER was someone you loved; would you like to let people know about the MURDER, or the people who committed that MURDER?

Harassment, schmarassment. Perhaps it's something to consider before committing MURDER. Just a thought.
posted by Sys Rq at 9:16 AM on November 14, 2009

"Live and let live"?

Murderers first....
posted by anotherpanacea at 10:28 AM on November 14, 2009

the whole notion of "this is a bad thing, Germany" totally flows from the very American notion that people in prison deserve anything that happens to them, during and after they get out of prison

Is that really the only reason you can think of to disapprove of this law? Here are another couple: first, some people are reluctant to approve any situation where the government tells people what they can't say, just on principle.

Second, much as we'd like this not to be true, there is a tension between public safety and the ideal of giving a convicted violent criminal a new start. Someone who's raped previously is more likely to rape. Someone who's murdered previously is more likely to murder. This is true even after they've served their time. If their names are in the papers, yes, it means more people will give them a wide berth, fewer will trust them ... but that might be wise, depending on the nature of the former offense.

That's why what you said was a straw man -- it was an argument that no one here made, that no one here believes, and yet you said their position "totally flows" from it.
posted by palliser at 10:56 AM on November 14, 2009

Sorry if this has already been answered up thread, but there's something unclear here to me.

Does German law call for the "scrubbing" of the killer's names from past articles? Or just not publishing them in current and future coverage of the crime?

I ask because I can see a big difference between scrubbing the names from past coverage (bad), and a law which prevents papers from publishing "John Smith, killer of John Doe, is now out of jail. He now lives in Exampleville."
posted by generichuman at 11:11 AM on November 14, 2009

Does German law call for the "scrubbing" of the killer's names from past articles? Or just not publishing them in current and future coverage of the crime?

I think one of the articles suggested that this hadn't been hashed out in court yet. The law stems from 1973, when it wouldn't have been as much of an issue, because you would have had to go to a library and look at back issues of the newspaper in order to find the name. This is really an instance of a pre-internet law running up against the reality of a radically new media landscape.
posted by craichead at 11:14 AM on November 14, 2009

Thanks, craichead. I missed that bit. That'll teach me to read articles when hungover.

It sounds like the kind of thing that would set some really interesting precedent either way, if it's ever hashed out German courts. How do you protect someone's privacy going forwards, when the internet doesn't discriminate between old and new coverage? Tough legal nut to crack.
posted by generichuman at 11:20 AM on November 14, 2009

I have an idea (not promising it's any good) that might just make everyone happy: change their names in publications and refer to them Coyoteclub Cerle and Ladyfreida Mauber.
posted by anniecat at 1:25 PM on November 14, 2009

I don't think anyone is trying to pretend that someone has never done a crime. But, as someone said earlier in this thread, the Germans understand better than ANY OTHER NATIONAL GROUP the value of granting people a second chance in life.

That is not an argument, it is an excuse. Some entity commits a horrible act and now they want people to stop talking about it. But the reason people still even have the desire to discuss it, is because the behavior itself was so vile and disgusting.

How does one ever truly "repay one's debt" when the debt owed is the result of a heinous crime -- the harm of which cannot be undone nor restitution made? Amazingly enough, so far I've managed to go through life without murdering, raping, or waving my penis about at the local garden club meetings. If somebody can't restrain themselves to maintain such a bare minimum of civility, then to fucking hell with them.

Why exactly, am I supposed to show a even greater amount of civility than normal just because they can't meet the lowest standards? Off with their heads and let civilized folk enjoy a better world without them.
posted by bravelittletoaster at 5:25 PM on November 14, 2009 [1 favorite]

Harassment, schmarassment. Perhaps it's something to consider before committing MURDER. Just a thought.

At some point a murderer may be released into society again. We in the US do not consider what that means anymore, because we're entirely focused on making sure the perpetrator is punished enough, but we are something of an anomaly among other western democracies on this, similar to health care. Other countries are portrayed as "soft" on criminals by politicians in the US, even if their methods demonstrably produce better results. If we wish to have our criminal justice system contribute to a well functioning society, then it behooves us to ensure that the people who come out the business end of the machine are able to live functional lives afterward, and that society doesn't continue to punish them long after, because that's not part of the sentence and doesn't contribute to a solution. We could go back to stockades and throwing rotten fruit for petty moral offenses and hanging in the public square for serious ones, but, hey, we've already been there.
posted by krinklyfig at 6:40 PM on November 14, 2009 [1 favorite]

If somebody can't restrain themselves to maintain such a bare minimum of civility, then to fucking hell with them.

Yeah, sure, if it happens to you personally, I can understand feeling that way. However, your visceral reaction to crime is a poor basis for public policy.
posted by krinklyfig at 6:43 PM on November 14, 2009 [2 favorites]

Why exactly, am I supposed to show a even greater amount of civility than normal just because they can't meet the lowest standards?

Because you're an adult?
posted by krinklyfig at 6:44 PM on November 14, 2009

so far I've managed to go through life without murdering, raping, or waving my penis about at the local garden club meetings

Then you have something on common with a depressingly large number of our convicted (read: plea bargained) murderers, rapists, and sex offenders.
posted by kid ichorous at 6:52 PM on November 14, 2009 [1 favorite]

on common -> in common
posted by kid ichorous at 6:52 PM on November 14, 2009

afu Sorry, I think you have no understanding
Not from around here, are you?

of why freedom of the press is important since you think that press ownership and political affiliation ("the Murdoch press") are good reasons suppress speech.
"Good reasons to suppress speech" do exist. There's a short overview of some of those reasons that various regimes have considered good enough, here. To "help you out".

Here is a link to a Wikipedia article to help you out.
Thank you for linking to a basic introductory overview of the philosophical concept that adults are talking about here. Should you wish to read what it says and return, feel free.

Neither the article, nor you yourself, clearly indicates a rationale for general freedom of speech rights (in particular, the right to profit from sensationalism, which is the existential purpose of the Murdoch press) to trump the practical capacity of released former criminals to reintegrate into society. That is the question under discussion.

However given your use of the word "lefty" and certain other signifier phrases I suspect you may have a certain wide-eyed fervor for "FREEDOM OF SPEACH, BRO!" that goes beyond its philosophical validity, so I won't be surprised or disappointed if you fail. Again.

As to the larger question, I do think this particular lawyer is trying to take things too far, and the German courts themselves may take that view; they may refuse this silly application without even considering the question of whether they practically could force Wikipedia to remove those names from the articles. But the idea of preventing harassment of released (and ideally, rehabilitated) criminals by journalists, or by the public in response to articles by those journalists, is sound.
posted by aeschenkarnos at 5:40 AM on November 15, 2009

Yes people, there are countries with values and different laws than the US. Those laws have their merits in their value systems and these countries try to uphold those laws even in the age of the internet.
Don't be so provincial.
posted by jouke at 6:00 AM on November 15, 2009

Sys Rq If someone you interact with on a daily basis had, in the past, committed MURDER, was charged with MURDER, was convicted of MURDER, was incarcerated for MURDER, had been "rehabilitated" for MURDER, would you perhaps want to know about that MURDER?
I think I see your problem. It's the "" around rehabilitated.

What if the victim of that MURDER was someone you loved; would you like to let people know about the MURDER, or the people who committed that MURDER?
Is appealing to personal exceptionalism intended to support or refute your argument?
posted by aeschenkarnos at 6:18 AM on November 15, 2009 [1 favorite]

> Don't be so provincial.

Try to talk like an adult without descending to this kind of bullshit ad hominem. A concern with freedom of speech is not provincial, and I am quite sure there are lots of Germans (or any other nationality) who dislike such laws on those grounds. They just don't happen to be in charge.
posted by languagehat at 6:34 AM on November 15, 2009

As to the larger question, I do think this particular lawyer is trying to take things too far, and the German courts themselves may take that view; they may refuse this silly application without even considering the question of whether they practically could force Wikipedia to remove those names from the articles. But the idea of preventing harassment of released (and ideally, rehabilitated) criminals by journalists, or by the public in response to articles by those journalists, is sound.

They may, in an alternate reality, have refused the case; but in this reality they already granted a default judgment against Wikipedia. I am no German law expert but I'd assume that in order to get a default judgment you have to at least have a facially valid legal claim. Ergo, one German court at least has already decided that applying the law in this way is not going too far.

And I do think protecting free speech is more important than the (possible) resulting burden of harassment; but even if it's not, the German law here suppresses imposes a prior restraint on all publication regardless of whether it's harassing in nature. The law itself goes too far, not just these particular plaintiffs.
posted by r_nebblesworthII at 10:01 AM on November 15, 2009 [1 favorite]

Try to talk like an adult without descending to this kind of bullshit ad hominem.

What, that kind?
posted by Sys Rq at 10:21 AM on November 15, 2009 [1 favorite]

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The 1st Ammendment, the Internet, and a Served Debt November 13, 2009 12:30 PM Subscribe

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