As of: 12/07/2010
In the United States, Wikileaks breaks away from the technical platform – under political pressure, US companies appear to invoke very vaguely worded general terms and conditions. However, no direct legal action against Wikileaks' US service providers has been reported. What would it look like in Germany?
I.
The network connection would not be a problem. Access providers are still not allowed to evaluate, control or restrict either the connection or the content of their customers' communications. There is still no legal or technical basis for blocking websites.
II.
According to German law, web hosts are initially not responsible for content posted online by their customers. Only and exclusively when the web host receives a clear indication of the illegality of a specific piece of content, is he required – according to the legal practice of the Federal Court of Justice, even if the legislature probably did not intend it this way – to check the specific content for legal admissibility and, if necessary, to ("notice and take down"). General complaints are not sufficient. Rather, it must be precisely indicated which specific content is to be considered illegal and from which point of view. In the case of Wikileaks, this would mean why a specific individual document should not be made publicly available.
In any case, with regard to the vast majority of documents published by Wikileaks, there are already insufficient arguments under German law to take action against the web host:
1.
German criminal law protects "state secrets" of the Federal Republic of Germany (§§ 93 ff StGB), but not the secrets of other states, including other NATO members and certainly not every diplomatic exchange of ideas. Diplomats, members of government and heads of state of foreign countries are protected under German criminal law even against insults uttered in Germany (Section 103 of the German Penal Code), but this is not the problem of Wikileaks or its web host (because publishing an insult is not the same as the insult itself).
2.
Data protection is limited by freedom of the press, as the European Court of Justice very clearly stated in its judgment of December 16, 2008, Az.: C-73/07 (publication of income tax returns). Due to its contribution to the formation of public opinion, Wikileaks certainly falls under the broad concept of the press and the public will regularly have a legitimate interest in the content of the documents. It also plays a role that Wikileaks does not publish information about the private lives of individuals, but rather events of importance to the general public. Data protection concerns are therefore unlikely to be effective.
3.
Copyright protection will hardly play a role. This is because copyright law does not protect every "wall of text", but only "personal intellectual creation". However, administrative documents in particular are structured in such a way as to place the personality of the author in the background, precisely because of their formalized structure (judgment of the Federal Court of Justice of April 17, 1986, Az. I ZR 213/83, on attorney's written pleadings).
4.
Finally, the reproduction of internal documents of a major bank, as recently announced by Wikileaks, would also not be problematic for the web host. This is because there is no such thing as "banking secrecy" in the legal sense, and trade and business secrets must be protected by employees, competitors, etc. (Section 17 et seq. of the German Unfair Competition Act), but not by the press and other opinion-forming institutions.
III.
Conclusion: Not everything that is unwanted is also illegal. Wikileaks could be operated in Germany without any legal problems.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.