[Foundation-l] Re: Outsiders on the Board? (was Re: Poll for Wikistandards)

Mon Jan 30 19:01:25 UTC 2006

Gerard Meijssen wrote:
> Ray Saintonge wrote:
> 
>> Tim Starling wrote:
>>
>>> Gerard Meijssen wrote:
>>>  
>>>
>>>> I am amazed that you suggest that an officer of the Wikimedia 
>>>> Foundation
>>>> would be personally liable for the work done as an officer. I would
>>>> expect that an officer of an organisation speaks for the organisation
>>>> and as a consequence the organisation is liable for the actions of its
>>>> personnel. Normally someone employed by an organisation is liable only
>>>> when gross incompetence can be proven or in cases where the law has 
>>>> been
>>>> violated to an extend where criminal intend can be proven.
>>>>
>>>> I am sure that someone can and will explain to what extend an employee
>>>> is personally liable for his actions as an employee of the Wikimedia
>>>> Foundation.
>>>>   
>>>
>>> Well, firstly IANAL and secondly most of my legal knowedge comes from 
>>> studying Australian law rather
>>> than US law. But my understanding is that civil liability for the 
>>> action of employees rests with the
>>> corporation or individual employing them. This is called vicarious 
>>> liability.
>>>
>> Gerard's response on this seemed naïve.  No-one wants to go into a 
>> situation where there is a high risk of liability,  But these things 
>> do happen, and there are situations where the law needs to pierce the 
>> corporate veil when the corporate structure is there to assist in the 
>> perpetration of a scam.  In some cases liability insurance can be 
>> purchased, but that too can be expensive.  It's also important to 
>> remember the level of litigiousness that is found in US society.  A 
>> plaintiff will often cast a wide net in the hopes of catching the 
>> right victim with deep enough pockets to pay for the wrongdoings of a 
>> penniless associate.  This can be a frightful experience when people 
>> with only marginal involvement find themselves put through the expense 
>> of defending themselves in court.
> 
> As I understand things, there are two types of people in the Wikimedia 
> Foundation and its projects.
> 
>    * There are the person with an official role; they are appointed or
>      chosen to their function.
>    * There are the persons with no official status as far as the WMF is
>      concerned. These include stewards, bureaucrats, admins and users.
> 
> Only the first two groups have any protection for what they do within 
> the Wikimedia Foundation. They have this protection as they represent 
> the Wikimedia Foundation in an official capacity. When something is done 
> on any of the projects that results in a legal situation, it is the 
> person who will be, when identified, be the one prosecuted. Depending on 
> the situation the Wikimedia Foundation or a chapter may involve itself, 
> this is not a given.
> 
> When a person in his official position gets into a legal situation, it 
> typically is the organisation, here the Wikimedia Foundation, who will 
> be prosecuted. It is only when a person is criminally negligent or 
> involved that there is a ground to prosecute an individual.
> 
> This is my understanding of how these things work. The consequence is 
> that officers of the WMF or of chapters have protection that all other 
> WMF volunteers lack. The fact that statutory laws exist for '''gross''' 
> mismanagement is something that we should welcome. Typically it takes 
> some effort to qualify as gross mismanagement. Given the people that we 
> currently have in official positions this is unlikely to happen.
> 
> The only group of people for whom it is not entirely clear to me what 
> their status is, are the people who help out on OTRS. Yes, I do know how 
> careful these people try to do their job.. :)
> 
> Thanks,
>   GerardM

My apologies Gerard, but all this seems to me to be a misconception of 
the whole issue. Not even erroneous, but dangerous actually.

I think it is incorrect to imply that those elected/appointed are 
somehow "protected" by their position in the Foundation (ie, the 
Foundation will be prosecuted rather than them as individuals) while 
"regular editors" lack protection.

I would like to ask Brad here to clarify this issue publicly for you, 
and for all those who read your statement. Brad, can you help ? Thanks 
in advance :-)

Anthere