[discuss] Applying the Right To Be Forgotten to Wikipedia

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.
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                           IP Owl Blog: www.gnosisiplaw.com/blog
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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
>>source
>> will no longer appear in search engine results. The source, whether
>>offline
>> or online, will continue to exist and will continue to be a valid
>>reference.
>>
>> 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
>law;
>
>...
>
>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:
>
>http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&page
>Index=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=95716
>
>Ilario writes:
>
>> But I think that something will change for users writing content (no
>>more
>> 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
>
>
>-- 
>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.
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>
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