Chris writes:
As I understand it, the "right to be forgotten" will only affect the discoverability of content, rather than existence of content.
So if we rely on a source which says that person X did Y many years ago, and X succeeds in invoking their "right to be forgotten", then the source will no longer appear in search engine results. The source, whether offline or online, will continue to exist and will continue to be a valid reference.
My understanding may well be wrong, and if there is anything that summarises this issue as it affects Wikimedians I would be really interested to read it.
Your understanding is essentially correct, as far as it goes. The ECJ (aka "Curia") opinion makes clear that the decision applies to search engines but not (yet) to the databases of source journals (such as The New York Times or the Guardian).
But of course it can affect the work of Wikipedia editors and other Wikimedians looking for online sources if search engine results can be censored in this way. In addition, it seems possible that the ECJ opinion can be understood to apply to Wikipedia itself, which, while not a search engine, may qualify as a "controller" as that word is defined under Article 2 of Directive 95/46 of the European Parliament ("on the protection of individuals with regard to the processing of personal data and on the free movement of such data"). Look at these relevant definitions from the text of the ECJ opinion:
------------
Article 2 of Directive 95/46 states that ‘[f]or the purposes of this Directive:
(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
...
(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;
...
Article 9 of Directive 95/46, entitled ‘Processing of personal data and freedom of expression’, provides:
‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’
---------------
(Note that "processing of personal data" need not be done "by automatic means." I read this to mean that Wikipedia editors themselves may qualify as engaging in the "processing of personal data." And the definition of "controller" expressly includes a "natural ... person."
Assuming that Member States would assert jurisdiction over Wikipedia (even though Wikipedia is hosted in the United States), could Wikipedia articles be defended under the "solely for journalistic purposes or the purpose of artistic or literary expression" language of Article 9 of the Directive? That language doesn't strike me as a very good fit for what Wikipedia does.
The English-language version of the full text of the opinion is here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&am... .
Ilario writes:
But I think that something will change for users writing content (no more references in the main search engine) but also to discover copyright infringements.
And, possibly much more than that, as I suggest above.
Not impossibly, and assuming EU can establish jurisdiction of Wikimedia Foundation or its agents or its volunteer editors, this particular news story might have turned out differently: http://www.nytimes.com/2009/11/13/us/13wiki.html?_r=0 .
--Mike
On Fri, May 30, 2014 at 6:39 PM, Mike Godwin mnemonic@gmail.com wrote:
Chris writes:
As I understand it, the "right to be forgotten" will only affect the discoverability of content, rather than existence of content.
So if we rely on a source which says that person X did Y many years ago, and X succeeds in invoking their "right to be forgotten", then the source will no longer appear in search engine results. The source, whether
offline
or online, will continue to exist and will continue to be a valid
reference.
My understanding may well be wrong, and if there is anything that summarises this issue as it affects Wikimedians I would be really interested to read it.
Your understanding is essentially correct, as far as it goes. The ECJ (aka "Curia") opinion makes clear that the decision applies to search engines but not (yet) to the databases of source journals (such as The New York Times or the Guardian).
But of course it can affect the work of Wikipedia editors and other Wikimedians looking for online sources if search engine results can be censored in this way. In addition, it seems possible that the ECJ opinion can be understood to apply to Wikipedia itself, which, while not a search engine, may qualify as a "controller" as that word is defined under Article 2 of Directive 95/46 of the European Parliament ("on the protection of individuals with regard to the processing of personal data and on the free movement of such data"). Look at these relevant definitions from the text of the ECJ opinion:
Hi Mike - thanks for the reply! Having looked and thought about it in a bit more depth, I am pretty sure that you're right and that a case can be made this precedent will apply to Wikimedians and possibly the Wikimedia Foundation.
Whether that is something we need to worry about is another issue, but this is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post contains anything you don't already know but it's a useful thought process for me);
If as a private citizen in the EU you construct a card-file index of newspaper cuttings (or any other kind of database) including personal details about a group of individuals, you are becoming both a "data processor" and "data controller".
This judgement determines that Google's indexing of information about an individual is covered by the rules that apply to data processors and controllers. Google argued that their work was not covered, a) because they did not know the contents of their own data (it all being generated algorithmically) and b) because the personal data was entirely intermingled with non-personal data.
It would be hard to argue that a Wikipedia article or Wikidata entry does not represent personal data in a retrievable form.
It would be an interesting question whether the Wikimedia Foundation or individual Wikimedians were data processors and controllers. The court would have to decide who was the "controller" of this data, if indeed there was one. I imagine they would be hard to persuade that the data had no "controller", and easy to persuade that the WMF's provision of technical infrastructure which interprets the data and present it represented "control" in the sense of 2d. Wikimedians might however jointly be "controllers" if they played a particularly important role.
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal data is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate coverage of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Regards,
Chris
Article 2 of Directive 95/46 states that ‘[f]or the purposes ofthis Directive:
(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
...
(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;
...
Article 9 of Directive 95/46, entitled ‘Processing of personaldata and freedom of expression’, provides:
‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’
(Note that "processing of personal data" need not be done "by automatic means." I read this to mean that Wikipedia editors themselves may qualify as engaging in the "processing of personal data." And the definition of "controller" expressly includes a "natural ... person."
Assuming that Member States would assert jurisdiction over Wikipedia (even though Wikipedia is hosted in the United States), could Wikipedia articles be defended under the "solely for journalistic purposes or the purpose of artistic or literary expression" language of Article 9 of the Directive? That language doesn't strike me as a very good fit for what Wikipedia does.
Chris writes:
If as a private citizen in the EU you construct a card-file index of newspaper cuttings (or any other kind of database) including personal details about a group of individuals, you are becoming both a "data processor" and "data controller".
I think that's the plain meaning of the ECJ decision.
It would be hard to argue that a Wikipedia article or Wikidata entry does not represent personal data in a retrievable form.
I agree here too.
It would be an interesting question whether the Wikimedia Foundation or individual Wikimedians were data processors and controllers. The court would have to decide who was the "controller" of this data, if indeed there was one.
My intuition is that a European court, and certainly the ECJ, would be likely to hold either or both WMF and individual Wikimedians liable. No need to choose between one or the other, given the breadth of the definitions.
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
On this point I must disagree.
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal data is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
Accuracy is no defense! That's one of the chief lessons of the ECJ opinion. And building an encyclopedia is not named as "a legitimate purpose" by the ECJ. (If it were, all Google would have to do is revive its own experiment in encyclopedias, Knol, but this time give it a compatible Creative Commons license.)
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate coverage of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Google has a clear purpose too, and it was no defense. Plus, there is a public-interest argument in favor of eschewing the erasure of true, accurate public data that happens to be old.
Plus, it must be said, Wikimedia Foundation is not well-positioned to litigate these issues again and again in Europe.
--Mike
On Mon, Jun 2, 2014 at 4:02 PM, Chris Keating chriskeatingwiki@gmail.com wrote:
On Fri, May 30, 2014 at 6:39 PM, Mike Godwin mnemonic@gmail.com wrote:
Chris writes:
As I understand it, the "right to be forgotten" will only affect the discoverability of content, rather than existence of content.
So if we rely on a source which says that person X did Y many years ago, and X succeeds in invoking their "right to be forgotten", then the source will no longer appear in search engine results. The source, whether offline or online, will continue to exist and will continue to be a valid reference.
My understanding may well be wrong, and if there is anything that summarises this issue as it affects Wikimedians I would be really interested to read it.
Your understanding is essentially correct, as far as it goes. The ECJ (aka "Curia") opinion makes clear that the decision applies to search engines but not (yet) to the databases of source journals (such as The New York Times or the Guardian).
But of course it can affect the work of Wikipedia editors and other Wikimedians looking for online sources if search engine results can be censored in this way. In addition, it seems possible that the ECJ opinion can be understood to apply to Wikipedia itself, which, while not a search engine, may qualify as a "controller" as that word is defined under Article 2 of Directive 95/46 of the European Parliament ("on the protection of individuals with regard to the processing of personal data and on the free movement of such data"). Look at these relevant definitions from the text of the ECJ opinion:
Hi Mike - thanks for the reply! Having looked and thought about it in a bit more depth, I am pretty sure that you're right and that a case can be made this precedent will apply to Wikimedians and possibly the Wikimedia Foundation.
Whether that is something we need to worry about is another issue, but this is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post contains anything you don't already know but it's a useful thought process for me);
If as a private citizen in the EU you construct a card-file index of newspaper cuttings (or any other kind of database) including personal details about a group of individuals, you are becoming both a "data processor" and "data controller".
This judgement determines that Google's indexing of information about an individual is covered by the rules that apply to data processors and controllers. Google argued that their work was not covered, a) because they did not know the contents of their own data (it all being generated algorithmically) and b) because the personal data was entirely intermingled with non-personal data.
It would be hard to argue that a Wikipedia article or Wikidata entry does not represent personal data in a retrievable form.
It would be an interesting question whether the Wikimedia Foundation or individual Wikimedians were data processors and controllers. The court would have to decide who was the "controller" of this data, if indeed there was one. I imagine they would be hard to persuade that the data had no "controller", and easy to persuade that the WMF's provision of technical infrastructure which interprets the data and present it represented "control" in the sense of 2d. Wikimedians might however jointly be "controllers" if they played a particularly important role.
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal data is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate coverage of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Regards,
Chris
Article 2 of Directive 95/46 states that ‘[f]or the purposes ofthis Directive:
(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
...
(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;
...
Article 9 of Directive 95/46, entitled ‘Processing of personaldata and freedom of expression’, provides:
‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’
(Note that "processing of personal data" need not be done "by automatic means." I read this to mean that Wikipedia editors themselves may qualify as engaging in the "processing of personal data." And the definition of "controller" expressly includes a "natural ... person."
Assuming that Member States would assert jurisdiction over Wikipedia (even though Wikipedia is hosted in the United States), could Wikipedia articles be defended under the "solely for journalistic purposes or the purpose of artistic or literary expression" language of Article 9 of the Directive? That language doesn't strike me as a very good fit for what Wikipedia does.
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"? On Jun 2, 2014 2:15 PM, "Mike Godwin" mnemonic@gmail.com wrote:
Chris writes:
If as a private citizen in the EU you construct a card-file index of newspaper cuttings (or any other kind of database) including personal details about a group of individuals, you are becoming both a "data processor" and "data controller".
I think that's the plain meaning of the ECJ decision.
It would be hard to argue that a Wikipedia article or Wikidata entry
does
not represent personal data in a retrievable form.
I agree here too.
It would be an interesting question whether the Wikimedia Foundation or individual Wikimedians were data processors and controllers. The court
would
have to decide who was the "controller" of this data, if indeed there was one.
My intuition is that a European court, and certainly the ECJ, would be likely to hold either or both WMF and individual Wikimedians liable. No need to choose between one or the other, given the breadth of the definitions.
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
On this point I must disagree.
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal
data
is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
Accuracy is no defense! That's one of the chief lessons of the ECJ opinion. And building an encyclopedia is not named as "a legitimate purpose" by the ECJ. (If it were, all Google would have to do is revive its own experiment in encyclopedias, Knol, but this time give it a compatible Creative Commons license.)
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate
coverage
of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Google has a clear purpose too, and it was no defense. Plus, there is a public-interest argument in favor of eschewing the erasure of true, accurate public data that happens to be old.
Plus, it must be said, Wikimedia Foundation is not well-positioned to litigate these issues again and again in Europe.
--Mike
On Mon, Jun 2, 2014 at 4:02 PM, Chris Keating chriskeatingwiki@gmail.com wrote:
On Fri, May 30, 2014 at 6:39 PM, Mike Godwin mnemonic@gmail.com wrote:
Chris writes:
As I understand it, the "right to be forgotten" will only affect the discoverability of content, rather than existence of content.
So if we rely on a source which says that person X did Y many years
ago,
and X succeeds in invoking their "right to be forgotten", then the source will no longer appear in search engine results. The source, whether offline or online, will continue to exist and will continue to be a valid reference.
My understanding may well be wrong, and if there is anything that summarises this issue as it affects Wikimedians I would be really interested to read it.
Your understanding is essentially correct, as far as it goes. The ECJ (aka "Curia") opinion makes clear that the decision applies to search engines but not (yet) to the databases of source journals (such as The New York Times or the Guardian).
But of course it can affect the work of Wikipedia editors and other Wikimedians looking for online sources if search engine results can be censored in this way. In addition, it seems possible that the ECJ opinion can be understood to apply to Wikipedia itself, which, while not a search engine, may qualify as a "controller" as that word is defined under Article 2 of Directive 95/46 of the European Parliament ("on the protection of individuals with regard to the processing of personal data and on the free movement of such data"). Look at these relevant definitions from the text of the ECJ opinion:
Hi Mike - thanks for the reply! Having looked and thought about it in a
bit
more depth, I am pretty sure that you're right and that a case can be
made
this precedent will apply to Wikimedians and possibly the Wikimedia Foundation.
Whether that is something we need to worry about is another issue, but
this
is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post contains anything you don't already know but it's a useful thought
process
for me);
If as a private citizen in the EU you construct a card-file index of newspaper cuttings (or any other kind of database) including personal details about a group of individuals, you are becoming both a "data processor" and "data controller".
This judgement determines that Google's indexing of information about an individual is covered by the rules that apply to data processors and controllers. Google argued that their work was not covered, a) because
they
did not know the contents of their own data (it all being generated algorithmically) and b) because the personal data was entirely
intermingled
with non-personal data.
It would be hard to argue that a Wikipedia article or Wikidata entry
does
not represent personal data in a retrievable form.
It would be an interesting question whether the Wikimedia Foundation or individual Wikimedians were data processors and controllers. The court
would
have to decide who was the "controller" of this data, if indeed there was one. I imagine they would be hard to persuade that the data had no "controller", and easy to persuade that the WMF's provision of technical infrastructure which interprets the data and present it represented "control" in the sense of 2d. Wikimedians might however jointly be "controllers" if they played a particularly important role.
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal
data
is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate
coverage
of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Regards,
Chris
Article 2 of Directive 95/46 states that ‘[f]or the purposes ofthis Directive:
(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
...
(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;
...
Article 9 of Directive 95/46, entitled ‘Processing of personaldata and freedom of expression’, provides:
‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’
(Note that "processing of personal data" need not be done "by automatic means." I read this to mean that Wikipedia editors themselves may qualify as engaging in the "processing of personal data." And the definition of "controller" expressly includes a "natural ... person."
Assuming that Member States would assert jurisdiction over Wikipedia (even though Wikipedia is hosted in the United States), could Wikipedia articles be defended under the "solely for journalistic purposes or the purpose of artistic or literary expression" language of Article 9 of the Directive? That language doesn't strike me as a very good fit for what Wikipedia does.
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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.
--Mike
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
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
On this point I must disagree.
I'd be interested to hear why :-)
I think also though that if editors are potentially liable, then so are legal persons that engage in similar activity. Say for instance a European Wikimedia chapter engaged with a national archive to update Wikidata with a few million records, including some on living people. Arguably both of them could be acting as data controllers on those records for the rest of the duration of Wikidata. Hmmmmm.....
However, even if my line of thinking is correct, I think Wikipedia's existing policies wouldn't need much amendment. Processing of personal
data
is allowed so long as it complies with the various duties on data processors, e.g. being accurate and processed for a legitimate purpose.
Accuracy is no defense! That's one of the chief lessons of the ECJ opinion. And building an encyclopedia is not named as "a legitimate purpose" by the ECJ. (If it were, all Google would have to do is revive its own experiment in encyclopedias, Knol, but this time give it a compatible Creative Commons license.)
We have quite a clear purpose in processing data - the provision of an encyclopedia. We already limit ourselves to truthful and accurate
coverage
of data subjects (e.g. the BLP policy); and we already have something analogous to a public-interest test as to whether we process this data at all (the notability principle).
Google has a clear purpose too, and it was no defense. Plus, there is a public-interest argument in favor of eschewing the erasure of true, accurate public data that happens to be old.
This is all the case, but the decision makes it clear that this is a question in striking a balance between the interests of the data subject (the "right to be forgotten", i.e. the ability to enjoy a private life), and the interests of others. This derives from Article 7(f) of the original directive.
It also makes it clear that this balance may be struck in different places in different situations; for instance at Paragraph 81, talking about the balance of public interest in people who have taken a role in public life[1] who are arguably the sort we cover in our articles.
I'd agree that there is no clarity about what would happen if someone pursued this course of action with Wikipedia, but there are many differences between our case and Google's...
Chris
[1] http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&am...
On Mon, Jun 2, 2014 at 4:48 PM, Chris Keating chriskeatingwiki@gmail.com wrote:
I don't believe Wikipedia could be a data controller as it has no legal personality, and legal personality is quite difficult to acquire when you set out to avoid acquiring it.
On this point I must disagree.
WMF is a legal entity. The editors are legal entities. The affiliated groups are legal entities. And there is nothing in the EU directive that requires what you are calling "a legal personality."
I think also though that if editors are potentially liable, then so are legal persons that engage in similar activity. Say for instance a European Wikimedia chapter engaged with a national archive to update Wikidata with a few million records, including some on living people. Arguably both of them could be acting as data controllers on those records for the rest of the duration of Wikidata. Hmmmmm.....
Now you are beginning to glimpse the scope of the ECJ opinion.
Google has a clear purpose too, and it was no defense. Plus, there is a public-interest argument in favor of eschewing the erasure of true, accurate public data that happens to be old.
This is all the case, but the decision makes it clear that this is a question in striking a balance between the interests of the data subject (the "right to be forgotten", i.e. the ability to enjoy a private life), and the interests of others. This derives from Article 7(f) of the original directive.
Not exactly. The case "makes it clear" that it is *asserting* that it is striking a balance, but when you read the specific language as a lawyer, it's clear that, regardless of what the ECJ says, there is no limiting principle regarding the scope of application.
It also makes it clear that this balance may be struck in different places in different situations; for instance at Paragraph 81, talking about the balance of public interest in people who have taken a role in public life[1] who are arguably the sort we cover in our articles.
There's that "makes it clear" language again. Do you really suppose Wikipedia information about individuals is limited to those who have (presumably voluntarily) "taken a role in public life"?
When did this person -- https://en.wikipedia.org/wiki/Dannielynn_Birkhead_paternity_case -- volunteer to take a role in public life?
I'd agree that there is no clarity about what would happen if someone pursued this course of action with Wikipedia, but there are many differences between our case and Google's...
Not really, if you read the precise language of the decision. Certainly, every other lawyer I've asked about this agrees with me that Wikipedia fits the definition of "controller" under the directive and the ECJ decision.
--Mike
On 02/06/2014 21:14, Mike Godwin wrote:
Google has a clear purpose too, and it was no defense. Plus, there is a public-interest argument in favor of eschewing the erasure of true, accurate public data that happens to be old.
There is nothing in the judgement about erasing "true, acaccurate public data that happens to be old." The judgement is about collecting, collating, and processing it, in away that is an invasion of privacy.
There is no public interest in how many time celeb X got a detention at school for not doing their homework at junior high. There is no public interest in whether umbilical cord blood was taken from child Y or not.
On 6/2/14, 10:55 PM, ??? wrote:
There is no public interest in how many time celeb X got a detention at school for not doing their homework at junior high.
Isn't that the kind of information you would in fact expect to find in a biography of any kind of public figure? If I were reading a biography of Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else prominent enough to have a book-length biography written about them, I would typically expect it to include a chapter about their childhood, and that would normally include some details of how they did at school, if such details are known. That's precisely the kind of information that biographers search for when putting together a comprehensive biography.
-Mark
On 03/06/2014 12:53, Mark wrote:
On 6/2/14, 10:55 PM, ??? wrote:
There is no public interest in how many time celeb X got a detention at school for not doing their homework at junior high.
Isn't that the kind of information you would in fact expect to find in a biography of any kind of public figure? If I were reading a biography of Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else prominent enough to have a book-length biography written about them, I would typically expect it to include a chapter about their childhood, and that would normally include some details of how they did at school, if such details are known. That's precisely the kind of information that biographers search for when putting together a comprehensive biography.
WP is not creating books, and it is mostly NOT creating articles about major figures of the 20th century. It is not constructing comprehensive biographies. It is mostly creating short articles about people of slight notability from scant sources, where perhaps their school detention is the one of the few things extant about them.
On Tue, Jun 3, 2014 at 5:23 PM, ??? wiki-list@phizz.demon.co.uk wrote:
On 03/06/2014 12:53, Mark wrote:
On 6/2/14, 10:55 PM, ??? wrote:
There is no public interest in how many time celeb X got a detention at school for not doing their homework at junior high.
Isn't that the kind of information you would in fact expect to find in a biography of any kind of public figure? If I were reading a biography of Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else prominent enough to have a book-length biography written about them, I would typically expect it to include a chapter about their childhood, and that would normally include some details of how they did at school, if such details are known. That's precisely the kind of information that biographers search for when putting together a comprehensive biography.
WP is not creating books, and it is mostly NOT creating articles about major figures of the 20th century. It is not constructing comprehensive biographies. It is mostly creating short articles about people of slight notability from scant sources, where perhaps their school detention is the one of the few things extant about them.
Interesting. Can you link me to a biography where a school detention is the main feature of the article?
On 03/06/2014 22:35, Nathan wrote:
Interesting. Can you link me to a biography where a school detention is the main feature of the article?
How about this 8 yo? https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography
What about these other kids? https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant
...
On Tue, Jun 3, 2014 at 6:54 PM, ??? wiki-list@phizz.demon.co.uk wrote:
On 03/06/2014 22:35, Nathan wrote:
Interesting. Can you link me to a biography where a school detention is the main feature of the article?
How about this 8 yo? https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography
What about these other kids? https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant
...
Thanks! I was unable to locate any mention of school detentions in any of the articles you linked.
I was able to determine that one is the heir to the throne of Belgium, another the granddaughter of the Queen of England, another the daughter of the soon-to-be King of Spain, one will likely become Emperor of Japan and lastly Prince Emmanuel is the son of the King of Belgium and the younger sibling of the eventual Queen.
So I do not yet see your point, which I think is that WP processes trivial personal information about non-notable individuals in whom few people have any interest. Perhaps you neglected to include the articles you mentioned where school detentions are one of the few things extant about the subjects?
On 04/06/2014 00:06, Nathan wrote:
On Tue, Jun 3, 2014 at 6:54 PM, ??? wiki-list@phizz.demon.co.uk wrote:
On 03/06/2014 22:35, Nathan wrote:
Interesting. Can you link me to a biography where a school detention is the main feature of the article?
How about this 8 yo? https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography
What about these other kids? https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant
...
Thanks! I was unable to locate any mention of school detentions in any of the articles you linked.
I was able to determine that one is the heir to the throne of Belgium, another the granddaughter of the Queen of England, another the daughter of the soon-to-be King of Spain, one will likely become Emperor of Japan and lastly Prince Emmanuel is the son of the King of Belgium and the younger sibling of the eventual Queen.
So I do not yet see your point, which I think is that WP processes trivial personal information about non-notable individuals in whom few people have any interest. Perhaps you neglected to include the articles you mentioned where school detentions are one of the few things extant about the subjects?
These are pre-teen kids, the information that is being collated is trivia and intrusive. Fell and broke arm, taken out of main stream education, went to a Science Museum, able to change his own clothes, went to see a musical.
And if you can't see that this is equivalent to "didn't do hos homework" all one can say is Oh dear!
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