[discuss] Applying the Right To Be Forgotten to Wikipedia

Gnosis IP Law, P.C. gnosisiplaw at gmail.com
Fri May 30 22:19:47 UTC 2014

I would agree:  Wikipedia and any other information site that processes
personal information to which it provides links would probably be
considered a ³controller² subject to the right to be forgotten of European
citizens.  Only the first of several burdens would be that ³controllers²
who receive a cease and desist demand must determine whether the demander
is a citizen of the EU or otherwise covered.  And who must confirm?

Michael R. Graham

Michael R. Graham, Esq.
Gnosis IP Law, P.C.
               P.O. Box 313
                      Winnetka, IL 60093-0313
             mgraham at gnosisiplaw.com
              (847) 997-4223
                   Website: www.gnosisiplaw.com
                           IP Owl Blog: www.gnosisiplaw.com/blog

Notice: The material in this transmission may contain confidential
information. If you are not the intended recipient, any disclosure or use
of this information by you is strictly prohibited. If you have received
this transmission in error, please delete it, destroy all copies and
notify Gnosis IP Law, P.C. <mgraham at gnosisiplaw.com> by return e-mail or
by telephone at (847) 997-4223. Thank you.

On 5/30/14, 12:58 PM, "Mike Godwin (mgodwin at INTERNEWS.ORG)"
<mgodwin at INTERNEWS.ORG> wrote:

>(I've been sharing this in various mailing lists.)
>I've been thinking about how the ECJ opinion might apply to an
>enterprise like Wikipedia. A recent request for information on the
>Wikimedia general mailing list gave me an excuse to revisit the
>opinion in light of how it might apply to Wikipedia (and perhaps other
>Wikimedia projects).
>---------- Forwarded message ----------
>From: Mike Godwin <mnemonic at gmail.com>
>Date: Fri, May 30, 2014 at 1:39 PM
>Subject: Applying the Right to Be Forgotten to Wikipedia (Was Re:
>[Wikimedia-l] Right to be forgotten)
>To: Wikimedia Mailing List <wikimedia-l at lists.wikimedia.org>
>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
>> will no longer appear in search engine results. The source, whether
>> or online, will continue to exist and will continue to be a valid
>> 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 Œ[f]or the purposes of
>this Directive:
>(a) ³personal data² shall mean any information relating to an
>identified or identifiable natural person (³data subject²); 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) ³processing of personal data² (³processing²) 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) ³controller² 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
>Article 9 of Directive 95/46, entitled ŒProcessing of personal
>data and freedom of expression¹, provides:
>ŒMember 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.¹
>(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:
>Ilario writes:
>> But I think that something will change for users writing content (no
>> 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 Godwin | Senior Legal Advisor, Global Internet Policy Project
>mgodwin at internews.org | Mobile 415-793-4446
>Skype mnemonic1026
>Address 1640 Rhode Island Ave. NW, 7th Floor Washington, DC 20036 USA
>INTERNEWS | Local Voices. Global Change.
>www.internews.org | @internews | facebook.com/internews
>discuss mailing list
>discuss at 1net.org

More information about the discuss mailing list