Fact check: Did a court rule that a content was defamatory because the referred source had been taken offline?

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Referring to a program of the public-service television broadcaster ARD, a Wikipedia article made statements about an academic professor. Later, the ARD removed the program from the net. Other media which the Wikipedia article referred to are still online available. The professor considered the statements untrue and defamatory. He took legal action against the Wikimedia Foundation.

In a blog post about the case, the Wikimedia Foundation made the following claim:

Claim 1:

“A German court ruled in September of last year that the content was in fact defamatory, largely because the source in question had been taken offline—what we call ‘link rot’.”

Fact Check 1:

False.

Judged by information contained in the court decision, Claim 1 is probably based on the assumption that the removal of the ARD broadcast is being interpreted as an indication of that the broadcasts’ statements are untrue.

The question of whether or not the broadcast still was available online did not play a role in the decision. The court did not judge the question of whether the statements made by this source were true.

In detail:

In isolation, Claim 1 hardly makes sense. The blog post of the Wikimedia Foundation which Claim 1 is quoted from gives only little context for interpretation, but the court-decision is enlightening when it outlines the position of the Wikimedia Foundation as a defendant. It shows which value for the court proceeding the Wikimedia Foundation attached to the fact that the source in question disappeared from the net.

The Wikimedia Foundation had argued that each of the statements made by the Wikipedia article had been proved by referring to sources, and stressed that the fact that the ARD program had been taken from the net is not an indication of that the program had made untrue factual statements, but the program had been removed by grounds of the German law on competition which concerns the ARD program generally.

The reasoning of the court however did not touch the above issues. Basic issues analyzed for the decision were:

  • The statements which the broadcast made and which the Wikipedia article referred to, are not expressions of opinion but factual claims.
  • The authors of the Wikipedia article made the broadcasts’ – factual – statements their own and did not distance themselves from these statements.
  • The burden of proof whether the factual statements are true is on the Wikimedia Foundation.

The authors did not make clear enough for the reader that the statements of the ARD program had the character of a suspicion. They also didn’t make clear enough that the plaintiff had denied the allegation by the ARD which the authors must have known from media sources they had also linked to.

Without prior carrying out examinations of its own, the Wikimedia Foundation must not take the statements as established facts. It is indiscernible whether it had exercised the due diligence.

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