User:Sandstein/Drafts/OLGM

German appeals court forbids the use of Wikipedia for commercial purposes

Frankincense, the product at issue in the German court's decision.

As already briefly reported, by judgment of 10 May 2012 (Az. 29 U 515/12), the Oberlandesgericht (OLG, state superior court) in the German city of Munich granted an injunction, on appeal, against German and Austrian suppliers of alternative medicine products with regard to making certain statements about their competitors' products in Wikipedia articles, on pain of a penalty of up to 250,000 Euro or up to six months' imprisonment.

The dispute concerned the German language Wikipedia's article Weihrauchpräparat, which describes the use of frankincense preparations in alternative medicine. In July 2011, a Wikipedia user named "Gallpharma" edited the Rechtslage (legal situation) section of the article by adding statements to the effect that the import of certain products into Germany was illegal. When these edits were challenged by other editors, "Gallpharma" identified himself on the article talk page as the CEO of both the Austrian medical products supplier Gall Pharma and German supplier Hecht Pharma, and argued in favor of retaining the additions. His competitors, the manufacturers of the products whose import was allegedly illegal according to the contested edits, subsequently applied for, and received, an injunction from a Munich court against Gall Pharma and Hecht Pharma forbidding the publication of such claims in Wikipedia.

On appeal, the OLG upheld the injunction. It considered that the German law against unfair business practices (Gesetz gegen den unlauteren Wettbewerb, UWG) prohibited dissembling the external appearance of a commercial action in such a manner that the commercial nature of that action is not clearly and unequivocally apparent to those participating in the market (§ 4 Nr. 3 UWG). It held that the edits at issue constituted a commercial action because they were aimed at increasing sales of the appellant's competing products. The court further held that the edits constituted an illicit, dissembled commercial action, because the average reader of a Wikipedia article expected – in accordance with Wikipedia's policy of neutrality – that Wikipedia articles contain the neutral research of third parties and a factual presentation of any disputes, rather than commercial advertising. The court further held that even if one assumed that the average reader knows that Wikipedia articles can be edited by anyone, that reader could not normally be expected to read any related talk page discussions which could (as in the instant case) clarify the commercial nature of parts of the article. Furthermore, the court held that the injunction did not infringe on the appellant's freedom of expression as protected by the German constitution, because the statutory prohibition of unfair business practices, in the abstract as well as in the instant case, constituted a constitutionally permissible restriction of the freedom of speech. According to the court, the restriction does not apply to making the contested claims as such, but rather to making them without making one's commercial interests clear to the reader.

The OLG's decision was discussed by German legal blogs and journals (MMR 8/2012, 553; WRP 9/2012, 1145). While some voiced criticism of the chilling effect the decision may have on the freedom of expression online, most publications focused on the judgment's practical implications. The legal blogs antiquariatsrecht.de and e-recht24.de advised enterprises to strictly distinguish editorial contributions to online media from advertisements. According to antiquariatsrecht.de, the OLG decision as well as a more recent decision by the Landgericht München of 7 August 2012 (Az. 23 O 3404/12) mean that enterprises are not allowed to praise their own products online under a covert identity, thereby creating the impression that a neutral third party supports these products. The legal blogger Jens Ferner advised enterprises to avoid editing Wikipedia articles altogether so as not to risk liability. He considered that the decision meant that there was no way that enterprises could edit articles without engaging in prohibited covert advertising. That is so, according to Ferner, because contributions to Wikipedia articles are not individually signed, because the court held that talk page contributions are not sufficient to make the commercial nature of the article edits clear to readers, and because the court did not discuss the argument that the appellant's choice of username – "Gallpharma", the name of his enterprise – was enough bring this clarification about. On the contrary, the court considered this choice of username to be an indication of the edits' commercial nature.

Following the publication of the OLG's judgment, a report in the Signpost's German-language counterpart, the Wikipedia:Kurier, concluded that the court's decision meant that Wikipedians editing with a commercial conflict of interest now risked being sued by their competitors in German courts. As concerns the immediate effects of the case on Wikipedia, the edits deemed improper by the court are still part of the article as of 10 November 2012, although the article is currently undergoing a deletion discussion. The user "Gallpharma" was indefinitely blocked in November 2012 by a German Wikipedia administrator with reference to the OLG's judgment.