(This is a reply for Alex's message: http://mail.wikipedia.org/pipermail/wikitech-l/2003-September/005919.html )
I you certain that you would be considered an "administrator" under the
Japanese law
Well, I am not certain. I am not a lawyer or a law school student. But what I have gathered are two things:
There is a famous case regarding an alleged defamation at an online BBS. The one who posted the defamatory messages, a sysop of the BBS, and the company which runs those BBSs were all sued. The first trial concluded that, among other things, sysop was indeed guilty for not fulfilling his obligation to delete such a posting from the BBS.
The second trial concluded that sysop in general could be held liable for his inaction, and the said postings are defamatory, but there is no unreasonably slow action or illegal inaction found in this case. The judge found that the actions taken were reasonable.
I think what is important is how the court understood the sysop. Sysop in this case is a volunteer stuff, spending only his spare time for the BBS. He receives small monetary conpensation. And there is some manual or guideline that he and other sysops are supposed to follow.
The volume of traffic and the part-time nature of sysop was considered by the court and, quite reasonably in my opinion, it is said that it was not the obligation of sysop to monitor all the postings.
At the same time, after being notified or obtaining a knowledge of such problematic posting, sysop bears a legal obligation to delete it within a reasonable time.
Just to clarify, some of the messages are somewhat obvious case of defamation, I think, in a sense that readers do not have to wonder if the messages are factually accurate. The messages are more like: "Tomos, you miserable loser!" (but including sexual and racial connotations).
I have looked through a dozen web sites (some by lawyers and scholars, others by journalists) dealing with this case, but did not find other cases discussed together that deal with the obligation of sysops. There may or may no be other cases.
The sentense include reference to the specific nature of the BBS's topic - it is a place to discuss feminism - and make certain judgment based on that. So the extent to which this case applies to things that happens on Japanese Wikipedia remains uncertain.
Aside from that, there is a recently enacted law often called provider liability law, specifying when certain people like sysops can and cannot be held liable.
Provider in this law is defined as those who provide facilities for telecommunication or mediate the communication. The communication is said to have to be open to unspecified recipients in nature - so not among just a small group of members, I think. The examples given by a document issued by a ministry is web pages and electronic bulletin boards.
This annotated version of the law issed by a ministry specifically explains that provider includes people doing web hosting and people who serve as an administrator for electronic bulletin boards.
Now are we as volunteer, unpaid, admins are admins in this sense? Or only Jimbo can be thought of as an admin? I don't know.
But from what I have read, some people would think that we are likely to be found so. There is no case that I am aware of.
If only Jimbo is the admin, it would mean that so-called admins at Japanese wikipedia can just ignore defamatory or copyright infringing material even when they obtain a knowledge of it, and tell concerned parties to talk to Jimbo. I am personally quite unsure if the court would find that it is the case.
(And I am not sure if Jimbo, an American living in the US, can be held liable for a message that is stored in a US server, defamating Japanese in Japanese language in Japanese social context. It sounds close to the case if Yahoo! can sell Nazi memorabillia in the U.S. because it is against French law.)
Among the difficult issue here is that providers, based on other law, to serve the users in an indiscriminatory manner. (I am not sure how this obligation is actually interpreted in the actual cases). Because of that clause (is the right term here?), there is a possibility that deleting something from a BBS or wikipedia is illegal - because that deletion may curtail paricular users' right to communicate. And of course there is the other possibility - not deleting is possibly illegal when the posting is defamatory, copyright infringing, etc.
The basic conditions on whith a provider can be held liable is that 1) s/he had a technological means to stop the violation of others rights (such as by deleting a message), but haven't used it. and 2) either of the following two: 2-a) s/he had a knowledge of it 2-b) s/he is in a situation in which s/he could have reasonably came to believe that there is a violation. (by not responding to a request to look into a specific posting, or not taking a reasonable step to make sure that the posting does not violate of others' rights, for example). (also notice that that, even if a provider makes a factually wrong judgement regarding violation/ non-violation, the provider cannot be held liable as long as it was reasonable to believe what the provider came to believe.)
As I understand, defamation and copyright infringement is quite difficult to judge - the existence of an external web page having the same text as the one recently posted on Wikipedia does not prove anything, even though it is an indication of infringement. The external web page may be from another public domain text, and the wikipedia posting is also the same PD source, for example. And admins are in a double-bind where they can be held liable by deleting something by mistake as well as not deleting something by mistake.
The law further specifies, for example, that when a victim makes a formal request to delete certain posting for certain reason, and the poster of the message do not oppose to the deletion after an inquiry has been sent and certain time has passed, then the provider can delete the posting without possibilities of being held liable for the deletion.
There are other cases, when the poster opposes, for example.
But what if just a third party leaves a message on Wikipedia:Votes for Deletion regarding potential violation?
The law, and annotated version issued by the government, do not say anything specific. Another widely-referred guidelines issued by an industry assosiation (kind of) with many legal experts' helps, specifically say that that kind of third party notification is something they cannot touch upon because the law and cases do not give us any reason to believe that 1) a third party notification constitute a knowledge of infringement or a situation in which a provider can reasonably come to believe that such an infringement exist. NOR 2) a third party notification do not constitute a knowledge of infringement, and the victim has to notice the infringement (which is often very difficult) and notify the provider.
So, all combined, all I can say is that there is no strong indication that admins at japanese wikipedia will not be held liable, and the uncertainties include how the past court case regarding a sysop for a BBS could apply to wikipedia admins, and if the definition of provider in the provider liability law covers wikipedia admins, among other things.
I hope I could answer you better, or at least quicker, and I am sorry for this untimely reply. But I really appreciate your concern.
best,
Tomos
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