News and notes
Court ruling complicates the paid-editing debate
Paid editing, the bright line, and European law
Last week, media outlets reported a ruling by a German court on the problem of businesses using Wikipedia for marketing purposes. The issue goes beyond the direct management of marketing-related edits by Wikipedians; it involves cross-monitoring and interacting among market competitors themselves on Wikipedia. A company that sells dietary supplements made from frankincense had taken a competitor to court. The recently published judgment by the Higher Regional Court of Munich, in dealing with the German Wikipedia article on frankincense products was handed down in May and is based on European Union competition law.
In the judgment, the court first found that editing Wikipedia is "commercial practice" under the German Unfair Competition Act (UWG). The court held that when a company edits a Wikipedia article, the resulting text falsely creates the impression that the edit has no business-related purpose. By implication, the judges found that the average reader of Wikipedia articles expects to find objective and neutral information. The judgment pointed to Wikipedia's mission to provide neutral accounts of third-party research and reliable sources, with an accurate depiction of disputes where necessary.
||This means any Wikipedia article edit made by an editor with a related business background is potentially, per se, pursuing unfair competition under EU competition law.
— Wikipedia Signpost
The seat of the Oberlandesgericht München
The company in question had argued it had made its conflict of interest as a market competitor explicit through a comment on the article's talk page. However, the court struck down this argument, saying the average consumer who uses Wikipedia does not read the discussion pages. Significantly, the court did not distinguish between problematic and acceptable contributions. The judgment was explicitly based on the Unfair Commercial Practices Directive, valid throughout the European Union.
- Implications for Wikipedia and the wider German debate
What does this mean for the Wikipedia projects? In general, editing in a private role as practiced by volunteers daily is not a "commercial practice". However, companies that are active in the EU, and their representatives editing Wikipedia within the ambit of their own business activity, can be subject to claims from competitors or government authorities. Critically, the judgment apparently leaves no room for justifying edits by an editor with a related business background as "legitimate" or "acceptable" on the grounds that they are "general public information". This means any Wikipedia article edit made by an editor with a related business background is potentially, per se, pursuing unfair competition under EU competition law. However, views are divided on different implementation and interpretation modes by EU member states and whether the ruling includes information companies are obliged to publish by law.
German legal blogs such as lawblog, schwenke, and ferner-alsdorf point out potentially devastating implications for company activities on social media generally, and that free speech does not safeguard the form of product placement the court has targeted. Some bloggers have emphasized that it is irrelevant whether an involved editor – either company employee or contracted agent – intended or pretended to contribute in a private role, and that all that matters is that the edit can be judged as (potentially) advantageous to the company. In particular, antiquariatsrecht.de maintains that the OLG's decision as well as a more recent decision by the Landgericht München of 7 August 2012 (Az. 23 O 3404/12) mean that enterprises are not allowed to praise their own products online under a covert identity, thereby creating the impression that a neutral third party supports these products. Thus, companies are vulnerable to competitors, if they edit openly, and prevented from editing under a cover identity by court decisions, too.
- English Wikipedia
English Wikipedia discussions of the decision, mainly centered on Jimbo's talk page, have looked especially at the implications for the UK, which is part of the EU. Unlike Germany, where no actual loss resulting from a company's actions has to be demonstrated to make it vulnerable to competitors in civil proceedings, British businesses would be likely to face a public agency, the Office of Fair Trading. However, the ruling seems to be broadly supportive of the "bright line" position outlined by Jimbo Wales – at least in the EU.
- Chapter reaction
As some implications of the decision run contrary to the bona fide views of many, Wikimedia Germany has commissioned a legal opinion on the wider implications of this judgment for Wikipedia. Findings are expected to be made available to the community in due course.
Wikivoyage's journey ends in safe haven, somewhat
On November 10, Wikimedia launched the beta phase of the free travel guide Wikivoyage, the first new genre of Wikimedia project in half a decade.
Since April, interested community members of Wikitravel, its German fork Wikivoyage, and Wikimedia volunteers have been discussing the creation of the new project, which has been reshaped several times over the past months. The German NGO hosting Wikivoyage, and the site's volunteer editing community, decided to move under Wikimedia's umbrella and were joined by a number of former Wikitravel volunteers. To date, two legal disputes over the issue are still pending.
The travel guide branch of Wikimedia starts with seven language versions, of which English and German are the most mature with more than 26,000 and 12,000 entries, respectively. However, transferring files from the German NGO to the WMF has turned out to be technically complicated. Currently, photos identified for transfer have to be either manually moved to Commons from the German site's photo project – called shared – or prepared manually for bot transfer. People performing the technical clean-up are busy fixing other issues such as account problems, too. Wikivoyage volunteers have pointed to the nebulous communications of Wikimedia as a problem.
Meanwhile, the community continues to vote on the logo of the new sister project on Meta. Interested users can take part in the procedure determining the basic design until 15 November 2012 23:59 GMT. Once the results of the poll are known, a second vote is set to determine colors and details of the logo.
- DMCA on Commons: On 9 November, the WMF published DMCA Oldenburg, a Digital Millennium Copyright Act takedown notice it received from Claes Oldenburg. After a legal review, the foundation decided to obey it. The position led to debates on Commons and sparked heated resistance on the German Wikipedia. However, to date there is no consensus on potential wider implications for Commons position towards freedom of panorama but community members are considering a campaign for changes to US law.
- Chapters Association: On 12 November, Wikimedia chapters participating in the WCA started to vote potential places of registration for the intended entity. It is the second proposed resolution on the issue, after a proposal, arguing that the registration place for legal seat and the incorporation place for office should be the same, was voted down on 5 November. The poll, set to close on 25 November, tables three European options: Belgium, Geneva, and the Netherlands. The group also issued a statement endorsing the WMF's efforts to strengthen its focus on core projects.
- English Wikipedia
- On re-granting admin tools: Various changes relating to re-granting the administrator tools after being uncontroversially removed (due to inactivity or by request, for examples) are being discussed.
- Arbitration Committee Candidates: Nominations for the upcoming Arbitration Committee elections are being accepted until 23:59 UTC on 20 November 2012.
- Arbitration report: One clarification request regarding a request for arbitration enforcement is open.
- Electoral Commission: A three-editor panel is being voted on. According to the linked page, these commissioners will "deal with unforeseen problems in the [election] and ... adjudicate any disputes".
- Pending Changes: The third and final request for comment on pending changes is now open. The RfC will be closed "several days" before 1 December, the day pending changes will be allowed for use across the site.