Tue, Sep. 04, 2007

Value Judgment and Defamation

GC - Washington.   In addressing the liability of an internet forum provider, the court of appeals, OLG, in Koblenz, Germany decided July 12, 2007 in the matter 2 U 862/06 that it is within the scope of freedom of expression to criticize a business on internet forums, as long as the criticism is not intended as pure defamation. In addition, there is no duty to screen comments before they appear in the forum.

The latter point comes as a direct contrast to rulings by courts in Hamburg, holding operators of such forums vicariously responsible for third party comments. The Hamburg lower court is adamant about imposing a duty to screen comments before publication, a position greatly at odds with other courts and inviting forum shopping in Germany.

On October 25, 2005, the Constitutional Supreme Court in Karlsruhe had ruled that any expression that could be interpreted as defamation of a person's character could be improper. Prior to its ruling, only one legal interpretation of an expressed opinion was needed to avoid liability. After the ruling, the inverse was adopted; if one interpretation was against the law, the statement was illegal. Under these conditions, any statement that is subject to misinterpretation becomes a potential legal issue.

When a company alleging defamation in a forum took its demand that the forum administrator remove comments to the regional courts in Koblenz, it was refused. Its appeal to the OLG also proved unsuccessful. The complaint was denied on the basis that the comments did not concern factual statements. Rather, they were deemed subjective expressions of opinion and value judgments.

Accordingly, value judgments remain protected forms of free speech under German law. The appellate judges added a caveat to their decision: The decision may not be taken to the Supreme Court in order to resolve conflicts between circuits. This restriction is, however, itself subject to review by the higher court.

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