From: "Geoff Burling" llywrch@agora.rdrop.com
On Sun, 5 Oct 2003, Ray Saintonge wrote:
Alex R. wrote:
[snip]
The reality is that reasonable people do disagree and it is not bad that they do come to different decisions. In such cases their decisions can be reviewed and confirmed or overturned.
The idea of the panel's decisions being overthrown by an outside court is unrealistic. Such litigation is bound to be expensive, with little chance of recovering costs. Add to this the difficulties involving jurisdiction or bringing witnesses from around the world, and you have an effective deterrent against starting any such suit.
IANAL, & this is a US-centric view, but I'd go further & say that the possibility that a court would even hear a case like this is unrealistic.
Why is it unrealistic? Volunteers who have been snubbed by organizations often bring law suits against such organizations. Parents whose children are thrown out of an after school activity. Sometimes they do it to just to get publicity. Why is it US-centric? Arbitration is actually much more common in Europe than the US, after all it was created by the Roman jurisconsults, it is not an American invention, such a statement shows a lack of knowledge of the history of arbitration and the interplay between private contract and the rules of public order. Courts confirm and overturn arbitration decisions all the time, check any legal reporter and you will see this is a daily fact of life in most societies. That is why practically all societies have arbitration rules in their civil law.
As I understand what we are talking about concerns simple banning -- whether or not someone could contribute to Wikipedia for a definite or indefinite period of time. And I doubt that as long as Wikipedia is a volunteer activity -- where no one is making any money from
contributing --
any court would find merit in hearing the case.
What the court would do is overturn the ban, yes, then Wikipedia would have to reinstate the user. That is what we are talking about, not a court awarding damages, but reviewing the arbitration proceeding and saying "you guys did it wrong, you think you can do whatever you want, well, you cannot, there are some basic principles that must be followed in a democratic society and you did not follow them."
And if there was some conceivable tangible advantage to being a
contributor
or editor (e.g., a clear pattern of contributors to Wikipedia being hired to, say, a publishing job), by that point I'd expect we have hammered out some kind of predictable pattern for how people get banned -- other than the vague "this contributor does not play nice with others."
All I am saying is that reinventing the wheel is a pretty stupid idea, especially when you decide it is oblong when for thousands of years they have been making it round. If you are going to create a system of arbitration make sure it sticks, that way when someone takes Wikipedia to court the judge will be on Wikipedia's side, not the agrieved user who was banned without respect to there rights under arbitration.
Also if you do go to such court and the ban is enforced you have the extra added effect that if the user tries to circumvent the ban they may then be held in contempt of court as the court's confirmation of an arbital award converts it into a judgment that is enforceable by the courts.
If you want to create an arbitration scheme why not do it along the well recognized legal principles that exist so that you do not have your decisions overturned by people you do not even know (i.e. judges who have jurisdiction if Wikipedia does not play fair with contributors). Is that so unreasonable?
Alex756