High stakes for the Wikimedia projects in Portugal: Fighting a strategic lawsuit against public participation (SLAPP)

César do Paço’s lawsuit against the Wikimedia Foundation is an ongoing legal case in Portugal that raises serious concerns about privacy and free expression. We are concerned that this is a strategic lawsuit against public participation (SLAPP) designed to suppress well-sourced public information. We are fighting this case for two reasons: 1) to protect the user data of volunteers contributing to political biographies; and, 2) to set an important precedent protecting the ability to write biographies of living persons.

Over the last several months, the Wikimedia Foundation has faced a lawsuit from an individual named César do Paço (also known as Caesar DePaço), which presents a threat to the Wikimedia projects and users in Portugal. 

The case started in August 2021 with a complaint that do Paço was upset about the Portuguese and English language versions of the articles about him. These contain information about his right-wing political affiliations and past criminal accusations, topics that had been reported in reliable sources as publicly relevant. The lawsuit went to court in Portugal, and the Foundation won the preliminary case. Like most courts around the world, the lower court’s decision protected the ability of volunteers to research and write about notable topics, including biographies. However, the case took a strange turn on do Paço’s appeal. We are filing a series of appeals of our own in Portugal to protect the safety of users who contribute accurate and well-sourced information on important topics to Wikipedia. In our 5 July filing, we asked the Portuguese appellate court to refer several important legal questions to the Court of Justice of the European Union (CJEU). However, the Portuguese court ruled against us on 13 July, and demanded that the Foundation turn over personal data about multiple users who worked on the article.

We believe this latest ruling was not in line with European law. In this case, the information about do Paço is relevant to ongoing Portuguese and global politics, and the information about him as a person is something that recent reliable Portuguese sources as well as Portuguese users on Wikipedia viewed as relevant and important to the public interest. We think the users were right and that their work needs to be protected. We are continuing to explore legal options to oppose the court’s ruling—and will update this blog post with more detail as the case develops.

Societies whose governance is grounded in universal human rights standards try to strike a balance between the right to freedom of expression and the right to privacy. Rules about defamation and information privacy exist to ensure this balance: A person who writes accurate, well-sourced, publicly relevant information is protected, while a person who deliberately writes false or misleading information that significantly hurts someone’s reputation can be sued for doing so. The law works differently for neutral website hosts, such as the Wikimedia Foundation, which hosts Wikipedia but, importantly, doesn’t write, commission, or edit the articles. A neutral website host can be sued when it has notice that a user has added illegal content to its website, and refuses to remove that content.

When people try to abuse the law in order to censor accurate, important information, it’s referred to as a SLAPP: a strategic lawsuit against public participation. This sort of lawsuit is designed to exploit the law, and censor people who are providing information important and valuable to public discourse. In this case, we’re concerned that’s exactly what do Paço is doing. 

Do Paço sued the Foundation in relation to the content of the articles about him. These articles state that reporting in Portuguese sources, including SIC (a well-known Portuguese television network), had indicated associations between do Paço and the far-right political party Chega in Portugal. They also cover some of do Paço’s past legal problems, which volunteer Wikipedia editors found relevant to understanding his biography. This reporting, which covered the issue in 2020 and 2021, continues to be available and relevant to the Portuguese public and other readers. We believe that do Paço is abusing the legal system by pursuing this case and that this should be seen as a form of SLAPP effort against Wikipedia. 

The case has gone through several stages very quickly over June and July 2023.

First ruling and first appeal

Initially, the lower court ruled in the favor of the Foundation, observing that free expression and the public interest outweighed do Paço’s right to keep reporting about his political associations private. However, on initial appeal, the appellate court overruled the lower court in a surprising decision: It brought up arguments do Paço had not even made—regarding the European Union’s General Data Protection Regulation (GDPR)—and used these surprise arguments to order the Foundation to disclose user data to do Paço as well as remove all of the information relating to his political associations and past legal issues.

The original appellate decision determined that under Portugal’s laws implementing the GDPR, only professional journalists were allowed to discuss someone’s political affiliations. It held that Wikipedians did not qualify for this exemption, and it did not consider any other usual exceptions (such as those that allow the sharing of information for education or historical archiving). It also ordered the deletion of material about past criminal accusations, and for the Foundation to identify the volunteer Wikipedia editors who worked on these sections.

Request to nullify first appeal

We then asked the appellate court to reconsider its own ruling (in a process called “nullification”) and it did so, ruling that the Foundation had not had a fair opportunity to properly prepare arguments regarding broader European privacy law issues, which are critical to protecting both user data and the integrity of Wikipedia content.

Second appeal

In our filing on 5 July, we asked the Portuguese appellate court to rule in our favor in order to protect users and their data as well as the integrity of their work. To be clear, by “integrity” we mean wanting to ensure that accurate, good faith information contributed by users is protected. We do not think that article subjects should be able to selectively delete publicly relevant information in order to distort how they are described and perceived. We also identified several questions regarding the EU GDPR that we believed the Portuguese courts needed to refer to the Court of Justice of the European Union (CJEU), since Portuguese law may have incorrectly implemented the GDPR to the detriment of free expression and freedom of information. In particular, we noted that the CJEU should be asked to consider three main questions.

• The first is whether subjects of biographies on Wikipedia should have the right under the GDPR to demand complete erasure of online material that they wish to be taken out of public knowledge, despite the GDPR’s limited international applicability.
  
• The second concerns the extent to which protections for the public interest, journalism, education, and free expression must be implemented in the law of every EU member state. These should allow volunteer Wikipedia editors to write neutral, accurate, and well-sourced information about notable figures, including details about their politics and political associations, even if those articles’ subjects do not like what is being said.
  
• The third and last is whether a court should be allowed to order the disclosure of volunteer Wikipedia editors’ personal information so early in a court case, especially when that protection is critical to allowing volunteers to freely and confidently contribute to Wikipedia. 

On 13 July, the Portuguese appellate court ruled on the case. It reversed its previous decision, finding that the EU GDPR did not apply to Wikipedia. This means that Wikipedia articles were therefore allowed to include information about do Paço’s political associations. Having decided that the GDPR did not apply, the court found that it did not need to ask the CJEU to consider the questions we had proposed. However, the court still ruled against the Foundation: It decided that general Portuguese law on privacy and defamation would apply to the discussion of past criminal accusations, so those should be deleted. 

Unusually, the court once again appears to have raised arguments do Paço did not make, this time declaring that Portuguese implementation of European law for website hosts neither protects the Foundation nor the volunteer Wikipedia editors who wrote about do Paço.

Therefore, it once again ordered the Foundation to delete information about certain historical matters involving do Paço, such as allegations of misconduct, and to identify the volunteer editors who added that content.

At present, we are exploring options for further appeal.

Why the case matters

Wikipedia articles are written and edited entirely by volunteer editors, who also set and enforce the rules for sourcing and notability on different topics and in different languages. Wikipedia articles—and those sourcing and notability rules—cover biographies of notable public figures, including people who become notable for supporting politicians or political parties. Do Paço is one such notable figure to both Portuguese and English-speaking audiences: He is a celebrated supporter of public authorities abroad (especially US law enforcement agencies), and a global business leader. 

A ruling that punishes individuals around the globe simply for summarizing and publishing on Wikipedia what was said about such a notable person in news media reporting would have an undue chilling effect on freedom of expression and information worldwide. It is particularly concerning if the ruling in question would expect each individual volunteer editor to review all the previous contributions and sources provided in an article before adding to it. 

Wikipedia works best when each volunteer editor can research their own contributions while relying on the work of other volunteer editors for what is already there, slowly improving articles over time. If the court rules that each volunteer editor who works on an article can become liable for everything that is in the article, contributing to Wikipedia will become much more difficult not only in Portugal, but potentially elsewhere as well. 

We want to reassure Wikipedians as well as readers that the Foundation has not provided any data in this case. We treat user data with a high degree of care and require that demands for data follow our procedures and guidelines for requesting nonpublic data. We are hopeful that the Portuguese courts will refer our case to the CJEU in order to help obtain a ruling that protects volunteer editors who carry out good-faith research on notable subjects and contribute to free knowledge projects such as Wikipedia. Ultimately, we also hope they will agree with us on the importance of protecting freedom of information and good-faith discussion of public interest topics.