On Tue, Jun 3, 2014 at 9:37 AM, Mike Godwin mnemonic@gmail.com wrote:
On Mon, Jun 2, 2014 at 4:19 PM, Todd Allen toddmallen@gmail.com wrote:
Would WMF, being in the US, need to worry about this to any greater
degree
than it worries about, say, Chinese publishing restrictions, or UK "superinjunctions"?
First, WMF operates globally, and while I took pains as general counsel, just as the WMF legal team does now, to limit exposure around the world, it is a mistake to suppose that jurisdictional protections are invariably impenetrable. See my discussion here on YouTube: https://www.youtube.com/watch?v=wqQOvxyj66w .
Second, the ECJ decision can be used to go after editors individually, or organized WMF-affiliated groups.
Does the ECJ need to establish jurisdiction over Wikimedia or specific users (presumably only those users directly involved in creating or curating the content in dispute)? We've seen in some situations in the past (e.g. with the DCRI and frwp) where governments have targeted users within their jurisdiction to demand information or actions. Could that happen here?
Should the WMF choose to refuse to implement the directive, could the ECJ pursue penalties against the income stream of donations, or grant funding disbursed to WMF-related entities in the EU? Could the WMF seek exemptions under Article 9, or would we run into jurisdictional risks by doing that?
In Article 23, it reads "The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage." Does this, perhaps in conjunction with the Section 230 status of the WMF, provide some cover?
CC'd to the advocacy advisory list.
~Nathan
On Tue, Jun 3, 2014 at 10:37 AM, Nathan nawrich@gmail.com wrote:
Does the ECJ need to establish jurisdiction over Wikimedia or specific users (presumably only those users directly involved in creating or curating the content in dispute)? We've seen in some situations in the past (e.g. with the DCRI and frwp) where governments have targeted users within their jurisdiction to demand information or actions. Could that happen here?
Clearly, the EU doesn't need to establish jurisdiction over EU citizens who happen to be Wikimedians, since it already has it. The same is true with regard to affiliated organizations in the EU. Plus, and this is something that bears repeating, there is no particular reason to think that the EU might not claim it has jurisdiction over Wikimedia Foundation, even if it might have a hard time imposing it.
Even claims of jurisdiction without merit can be problematic, as I explain here; http://youtu.be/wqQOvxyj66w.
Should the WMF choose to refuse to implement the directive, could the ECJ pursue penalties against the income stream of donations, or grant funding disbursed to WMF-related entities in the EU? Could the WMF seek exemptions under Article 9, or would we run into jurisdictional risks by doing that?
I wouldn't think any funds given to, or disbursed from, WMF in the EU would be immune.
In Article 23, it reads "The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage." Does this, perhaps in conjunction with the Section 230 status of the WMF, provide some cover?
Article 23's language would not be interpreted as providing Section-230-like protection, if I read EU law correctly.
--Mike
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