Anthony DiPierro wrote:
It seems to me that he is basically right. The
doctrine is
[[respondeat superior]], and it typically applies only to people
working in an official capacity.
Anthony
I looked at the article [[respondeat superior]]. It typically applies
only to people in a relationship of employer/employee.
"is a legal doctrine which states that an employer is responsible for
employee actions performed within the course of the employment."
The problem is that there are only two people in that type of situation.
Others are not a relationship of employer/employee. Neither the board
members, nor the officers (except possibly Danny, but he is not employed
as an officer).
So, I am not sure how this doctrine exactly applies to us.
But let's imagine that for some reason, it actually applies to us.
What is missing is Gerard argument (which is to claim that board members
and officers are better protected than volunteers) is the field of
application of the protection.
What would be the field of application ? it would be the activities
directly in relation with the Foundation itself. And only those
activities. So, I do not see where the comparison stands.
Editorial field : If a board member edits an article and adds defamatory
content, he is responsible just as a regular volunteer. This activity is
unrelated to the Foundation activities and I doubt much the board member
(or the officer) will be more protected than any one else. This is his
own responsability to add defaming content to an article imho.
However, if a board member makes a real bad decision in terms of
allowing expenses, it is normal that he holds a certain responsability.
A volunteer not involved in the Foundation can *not* take that decision,
so there is no reason why he would be held responsable. Hence, the first
may be protected by the Foundation, but there is no reason to protect
the second person from a decision he can not be involved. There is no
lack of equality or unfairness, since the field of application only
applies to the first person.
Now, what I think bother Gerard is this : what if a volunteer answers in
OTRS and does so in the name of the Foundation, even though he has
received no authority/delegation to do so? Will he be protected ?
Probably not. He is even liable to the Foundation and should the
Foundation be threatened by the answer given by the volunteer, the
Foundation could indeed defend itself by suing the volunteer. In that
sense, yes, the volunteer is *less* protected than the board
member/officer. But here, I think the volunteer must use common sense
and not "imply" he is talking in the name of the Foundation when he is
not. Or if he does so, it is best he be careful of his answer.
And... for those of you who do not have access to OTRS, any message sent
through info-en contains at its bottom the following message :
Disclaimer: all mail to this address is answered by volunteers, and
responses are not to be considered an official statement of the
Wikimedia Foundation. For official correspondence, you may contact the
site operators at <http://www.wikimediafoundation.org>.
So, the risk is very limited indeed. It mostly relies on common sense
and good faith from both parties.
ant