On June 12 a conversation took place between German and French-speaking Wikipedia volunteers respectively, and Jacob Rogers, Legal Director for the Wikimedia Foundation. The French-speaking round was attended by 21 guests, and the German-speaking round by 24 including some international participants. Representatives from local Arbitration Committees also participated in both rounds.
In the beginning, Jacob briefly explained the problem: the Wikimedia Foundation’s current practice of relying on U.S. law for claims on project content is increasingly being questioned by global jurisprudence. New laws state directly that even companies without offices or employees in a country are subject to their jurisdiction. Many countries around the world are becoming more willing to take action against the Wikimedia Foundation, movement volunteers, or the projects. It is expected that there will be an increasing number of cases where the Wikimedia Foundation will have to change content based on court decisions outside the U.S.. Conversations with the community should help to establish a new process for such cases.
After the introduction, Jacob answered questions about past practice:
- Only in a few cases so far the Wikimedia Foundation had to change content due to non-U.S. court rulings, only three times by executing “an office action,” an intervention by the Wikimedia Foundation itself. For the future, even based on the new legal situation, a number of no more than ten cases per year is expected.
- Due to the structure of Wikipedia, new attempts to re-enter banned information cannot be completely prevented. Some suggested protecting the concerning articles or showing a banner on the article to avoid that.
- In principle, however, the requests to change the content are binding. The Wikimedia Foundation cannot simply ignore corresponding court decisions, as otherwise high fines against the Wikimedia Foundation, prison sentences against employees or authors in the countries concerned could be threatened.
Jacob summarized three criteria as decisive for complying:
- If there is a threat of harm to the Wikimedia Foundation or editors.
- If it is clear that legal proceedings would not be winnable.
- If human rights issues are affected.
The decisive question was in which way the interventions should be carried out. Both Jacob and the participants saw the “office action” as the least favorable way to act. Besides it violating the autonomy of the community concerning the content, such an intervention can never be as good as a revision by authors based on reliable sources.
One approach is that the Wikimedia Foundation contacts the communities in such cases, who then carry out the intervention themselves. This suggestion was welcomed by all. Jacob assured to include this approach in his upcoming draft. The “office action” would only be the last resort then.
While sharing with the communities can be done easily if the judgment is public (i.e. by posting on the discussion page of the article), it is more difficult with confidential judgments. Here, the Wikimedia Foundation needs contact persons from the community, who can be addressed confidentially. Such functions are currently fulfilled in some communities by arbitration committees, in others by oversighters. In the German-speaking community, however, neither the arbitration committee nor oversighters have a corresponding mandate so far. The German-speaking community would have to decide who could fill this role. In any case, volunteers said that any requests to the communities should be made as transparently as possible in logs.
Conclusion: The conversations were quite productive. We are grateful to all who took part, special thanks go to Hugue Plessis and Lukas Mezger, who as volunteers helped with translating from and to Legal English. Based on the feedback, Jacob will write a draft for a new policy, including the results of the conversation, to be discussed further.