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Written by Phil Bradley-Schmieg and Jacob Rogers.
The Munich Regional Court acknowledged that the contested Wikipedia article (Tipico) contained relevant public information and was correctly sourced. This is very good news also for Wikimedia Europe, which closely followed the adoption of the anti-SLAPP Directive and will advocate for its ambitious and effective transposition in the different Member States.
Introduction
On 16 November, 2023, a court in Munich, Germany, ruled that the Wikimedia Foundation correctly refused to censor a gambling tycoon’s name in a Wikipedia article about that person’s business. Although the case was appealed, the appeal was later dropped on 25 July, 2024, leading to a final judgment in favor of keeping the Wikipedia article in full!
The ruling marks a significant victory for the Foundation in a case that we think had all the hallmarks of an illegitimate “SLAPP” lawsuit: a strategic lawsuit against public participation. SLAPPs are lawsuits designed to force organizations and individuals to remain silent on legitimate matters of public interest.
The Wikipedia article in question names Mladen Pavlovic as one of three co-founders of Tipico, a major European gambling company headquartered in Malta. This was already public information: Pavlovic has been named in reputed sources within German news media, and in official documents held by Malta’s official company register. The Wikipedia article also mentioned that some Tipico shares had been acquired by a Jersey-based investor— information that also became a focus of the lawsuit.
As per Wikipedia community policy, all of this information was referenced citing reliable external sources, and was presented in a neutral, encyclopedic fashion. Despite this, Pavlovic engaged a reputable German law firm to threaten the Foundation with legal action unless we agreed to censor the Wikipedia article. After consulting members of the German Wikipedia community, we refused the lawyers’ demand. This was in line with our commitment to protect the integrity of Wikipedia and the good faith work of its volunteer editors, which we carry out on a regular basis in response to requests to remove content or identify users (for more details, see our transparency report).
Our refusal did not need to lead to litigation: even if Pavlovic was still dissatisfied, he could have discussed his complaint directly with the Wikipedia volunteer editor community. This cannot be done by making legal threats, but rather by convincing Wikipedians that the content can be improved based on Wikipedia’s own policies. It is quite normal for editors to improve Wikipedia by removing content, especially for non-legal reasons.
About the lawsuit
Instead, Pavlovic chose legal escalation. He asked judges of the Munich Regional Court to order the Foundation to cen27 Aug 2024sor Wikipedia. He based his arguments on German and European Union (EU) law, including a 2022 ruling of the EU Court of Justice (ECJ) that struck a major blow for open access to corporate data.
Pavlovic’s lawsuit was especially intensive for our team because of the unusual number of legal briefs to which we were asked to reply. Every time we comprehensively answered the arguments Pavlovic’s lawyers had raised, they would file a new legal submission with the court. These usually repeated earlier arguments, and introduced—in our opinion—increasingly thin or irrelevant new ones. Even after his lawyers had orally debated the case in front of a judge—which is typically the last step before a ruling—they continued their legal submissions.
Working together with excellent local lawyers at Hogan Lovells (see here and here), we put up strong and creative defenses each time. However, we eventually decided to start replying in a more abbreviated fashion. This is unusual, and risky, since some courts might consider it disrespectful, and because summarized arguments—so-called ”skeleton” arguments—can be less convincing and easier to attack. However, the Foundation has a limited legal budget to spend on local law firms, and an even smaller in-house team of lawyers. The Foundation’s legal team now also has to deal with a wave of new and very demanding “online safety” laws across the world: for example, the EU Digital Services Act (DSA) and the UK Online Safety Act. These conditions force us to be as efficient, creative, and effective as possible, including in lawsuits like this one.
We believe that Pavlovic’s approach was designed to overwhelm us: building up pressure to settle the case or, at least, to push us into making legal or strategic errors in our defense. We were not at all surprised when Pavlovic’s lawyers eventually offered to stop, but only if we implemented the censorship they were demanding.
Pavlovic initially indicated the intention to appeal the case, potentially for years. However, when the case actually went up to appeal, it appeared increasingly likely that he was going to lose. Rather than continue, he ultimately dropped the case, which led to a final judgment that protected the Wikipedia article as correctly sourced and relevant public information!
More details about strategic lawsuits against public participation (SLAPPs)
We view the approach to this case as sadly typical of SLAPP cases. Europe’s SLAPP problem was perhaps most hideously demonstrated by the huge volume of litigation brought by various persons against Maltese journalist, Daphne Caruana Galizia—internationally renowned for her anti-corruption reporting, and tragically murdered in 2017. By the time of her eventual murder in 2017, Caruana Galizia was facing more than 40 libel lawsuits. This finally prompted the EU to pass anti-SLAPP legislation. The UK has also passed recent reforms that it calls “anti-SLAPP,” but they apply only to publications about “economic crimes.” Meanwhile, the Council of Europe (which includes EU as well as non-EU countries like the UK, Switzerland, Ukraine, and Turkey) adopted a recommendation to its members in April 2024. The impact of these remains to be seen.
The Foundation faces several SLAPP-like cases each year. They drain the resources that we and others rely on to help make the internet a better place for everyone, everywhere. Even when we win a case, the loser rarely has to reimburse everything we spent. Worse still, the Foundation—which is a US-based nonprofit organization—is not the only member of the Wikimedia movement to face this problem. Individual volunteers as well as groups of volunteers such as Wikimedia affiliates also face threats. In Spain last year, for example, the Foundation had to intervene in a lawsuit that was wrongfully brought against Wikimedia España in a vain attempt to “protect” the reputation of Luis Rubiales before his resignation. Meanwhile, our Portuguese lawsuit—the César do Paço case—is still unresolved. And like in the Do Paço matter, plaintiffs can sometimes also persuade local law enforcement officials to help them go after Wikipedia volunteer editors. Defending editors’ privacy in the face of demands that appear illegitimate is also an important part of our work.
Conclusions
We hope that legislators all over the world will push forward with ambitious and effective anti-SLAPP reforms. When doing so, they should remember that in addition to protecting journalists and whistleblowers, it’s important to also protect projects like Wikipedia and the thousands of citizens and organizations that make them possible.
Anti-SLAPP reforms are only one part of that picture. Privacy-infringing laws like France’s data retention law, and emerging online identity requirements, together with laws that give government authorities insufficiently regulated powers to order content takedowns, are also a significant issue.
By tackling these problems one by one, our legislators and judges can play an essential role in preserving and developing the best parts of the internet. This week, we are grateful to the judges of the Munich Regional Court.