Implications of Defamation Laws on the Restoration of Deleted Content

Background

Wikipedia editors can undo a deletion made on a Wikipedia entry by restoring deleted content accessible from the article history. Editors are guided by Wikipedia’s Editing Policy and Biographies of Living Persons in making edits. Following these policies, especially on proper sourcing, should maintain the neutral and dispassionate tone contemplated for Wikipedia articles. When however the restored deleted content is claimed to be defamatory, a question arises around the level of care that an editor should use before restoring deleted content. In most cases, the editor who did the restoring should be able to rely on Wikipedia’s policies to demonstrate that restoring properly cited content avoids the possibility of being held liable.

This guide evaluates whether content restoration in the United States, Germany, and France, regardless of who deleted the content originally, might be considered republication of defamatory language taking into consideration the unique characteristics of a Wikipedia article, and whether the laws of these countries afford editors a good faith defense if the content restored is properly cited. This focuses on those three jurisdictions because they have varying approaches to tackling the balance between free speech rights and reputational rights. The survey of laws and cases reveal that judge-made rules have enlarged possible defenses to defamation claims even in jurisdictions where defamation laws are more friendly to plaintiffs.

United States (US)

Content restoration contends with the "single publication rule" or the rule that a plaintiff in a defamation suit only has a single action for defamation which can be filed within a limited time period for any one issue of a book, magazine or periodical. The number of actions which can be brought does not increase based on the number of books released in one print run. Similarly, the rule applies to online statements and an article maintained online is not being republished every time an internet user views or downloads it. In general, this means that once something has been published online and a person has either brought a lawsuit for defamation against the original publisher or let their time limit to bring the lawsuit run out, the supposed claimant cannot start a new lawsuit against someone else for the same publication.

Publishing books and publishing on the internet are not exactly similar things and courts acknowledge that applying the single-publication rule is increasingly becoming more challenging as the internet evolves. This complication is best demonstrated when they ruled on whether there has been republication of online content. Republication is a separate publication from the original “which is not merely a delayed circulation of the original edition.” Once content is said to have been republished, the single publication rule does not apply and an injured party gets a new chance and new time period to claim defamation upon the date of republication.

Courts have yet to deal with a defamation case involving open source editing and this makes the discussion about content restoration more fluid than settled. There are however some factors which aid them in determining whether there has been a republication:

• The publication has been substantially modified;
• The publication is made on an occasion distinct from the initial one;
• The publication is intended to and actually reaches a new audience or market; and
• The original publisher had exclusive control over the content and as such is in the position to republish.

On the first and second factors, a court might find republication if the subsequent publication has additional content not present in the original and that this change is not intended by the publisher to be part of the original publication. Whether publication is merely a delayed circulation of the original is highly factual and it will require the evaluation of the content in the second publication as it relates to the first.

Regarding the “new audience” factor, a court must be able to determine that a subsequent publication was either intended to reach a new audience or that it actually reached a new audience. Courts would look into whether the “affirmative act” of sharing or updating online content is “conscious and independent” for there to be republication. For example, making content available in a different format as a marketing decision to reach a broader audience is a republication. Meanwhile, adding a hyperlink to allow easy access to an already-published content is not.

As to the fourth factor of control, Wikipedia articles, as collaborative works, belong to no single person. Edits, including restoration of content, are being made constantly. Therefore, at least on exclusivity of control over content, the case for republication is weak.

Overall, questions regarding republication on Wikipedia would likely focus on whether the republisher merely restored deleted content or substantially changed it. There may also be uncertainty about whether restoring previously deleted content is intended to reach a new audience or if it would be intended for the same audience as the original defamatory edit.

If a claim does however reach proceedings before the court, a defendant who merely restored previously deleted information may try to assert a defense of qualified privilege that the editing was made in good faith and that it was communicated to serve some kind of interest such as creating free knowledge. Other defenses may also be available depending on the circumstances. Still, at least in the US, broad First Amendment protections on freedom of speech make for a legal landscape that is generally unfriendly to defamation plaintiffs.

Germany

Contrasting with the US, in Germany, a Berlin District Court ruled that defamatory statements which have been taken down but remain on Wikipedia’s article history are still actionable under defamation laws. Restoring deleted content to an article should be attended with care because Germany’s defamation law tend to be more strict against the defendant with the highest number of convictions in the European Union.

Defamation is punished under the Strafgesetzbuch or the German Criminal Code. In deciding these cases, courts perform a balancing between free speech rights and other social rights. They will assess whether a statement upholds legitimate interests (e.g., political speech) such that its publication outweighs the protection of honor. This balancing of values reflects the wording in Germany’s Constitution or its Basic Law which respects every person’s right to free speech subject to general law protecting the right to personal honor.

Article 193 of the German Criminal Code provides a narrow defense against defamation claims. If the statement was made in defense of rights or for the exercise of legitimate interests, liability for defamation shall be limited to offensive elements in the expression. This defense is applicable when due diligence was exerted to prevent the spread of wrong against persons affected and when the publisher relies upon at least a “minimum stock of evidence” before publishing.

In addition to the defense in Article 193, a Berlin court also acknowledged a form of “source privilege” in favor of journalists who republished statements made earlier by bona fide and reliable publications except if there is reason to doubt the reliability of the source in which case, further research is required. Under this privilege, more credible and reliable sources will demand less diligence. This means that an editor who restored deleted content in Germany and subsequently received a defamation complaint would likely be asked whether they considered the quality of the sources or otherwise looked into the accuracy of the information before restoring it.

France

French defamation law is found in the Law of 29 July 1881 on the Freedom of the Press. It has been amended in 2004 to include online defamation.

The French Court of Cassation, a last resort court, held that a simple technical update of a websites is already considered as republication of defamatory content. This ruling may be used to hold that restoration of deleted content is defamatory. Defendants however can rely on a good faith defense if they show that the publication was attended with all of the following:

• A legitimate aim;
• Absence of personal animosity or malice;
• A prudent and measured presentation; and
• Serious investigation to ascertain the truth of the statement.

Paris courts have also been more lenient in defamation cases involving non-journalists. In one case involving a blogger who posted critical statements about his municipality’s leadership, a Paris court ruled that the blogger is allowed to rely on existing sources such as a press review or a regional newspaper without having to verify the correctness of the information. This ruling had been affirmed by the Paris Court of Appeals.

To sum it up, an editor in the US who restores deleted content benefits from a legal regime with broad free speech protections. Prudence dictates however that an editor look into the four factors mentioned in the discussion and pay special attention to whether there are substantial changes made to the content and whether the restored content is intended to or actually reaches a new audience. Meanwhile, editors in Germany or France, or countries with similarly structured legal systems, would be expected to exert a certain level of due diligence by meeting the standards of “minimum stock of evidence” or “good faith,” depending on the available defenses as prescribed by law or the courts. Germany’s rules prove to be stricter in the sense that a defense of due diligence will not apply to offensive elements of the statement. Meanwhile, the good faith defense developed by French courts do not make such a qualification.