(This is a reply for Alex's message:
http://mail.wikipedia.org/pipermail/wikitech-l/2003-September/005919.html )
I you certain that you would be considered an
"administrator" under the
Japanese law
Well, I am not certain. I am not a lawyer or a law school student. But what
I have
gathered are two things:
There is a famous case regarding an alleged defamation at an online BBS. The
one who posted the defamatory messages, a sysop of the BBS, and the company
which runs those BBSs were all sued. The first trial concluded that, among
other
things, sysop was indeed guilty for not fulfilling his obligation to delete
such a
posting from the BBS.
The second trial concluded that sysop in general could be held liable for
his
inaction, and the said postings are defamatory, but there is no unreasonably
slow action or illegal inaction found in this case. The judge found that the
actions taken were reasonable.
I think what is important is how the court understood the sysop.
Sysop in this case is a volunteer stuff, spending only his spare time for
the
BBS. He receives small monetary conpensation. And there is some
manual or guideline that he and other sysops are supposed to follow.
The volume of traffic and the part-time nature of sysop was considered by
the court and, quite reasonably in my opinion, it is said that it was not
the
obligation of sysop to monitor all the postings.
At the same time, after being notified or obtaining a knowledge of
such problematic posting, sysop bears a legal obligation to delete it
within a reasonable time.
Just to clarify, some of the messages are somewhat obvious case of
defamation,
I think, in a sense that readers do not have to wonder if the messages are
factually accurate. The messages are more like: "Tomos, you miserable
loser!"
(but including sexual and racial connotations).
I have looked through a dozen web sites (some by lawyers and scholars,
others
by journalists) dealing with this case, but did not find other cases
discussed together
that deal with the obligation of sysops. There may or may no be other cases.
The sentense include reference to the specific nature of the BBS's topic -
it is
a place to discuss feminism - and make certain judgment based on that. So
the extent to which this case applies to things that happens on Japanese
Wikipedia remains uncertain.
Aside from that, there is a recently enacted law often called provider
liability law,
specifying when certain people like sysops can and cannot be held liable.
Provider in this law is defined as those who provide facilities for
telecommunication
or mediate the communication. The communication is said to have to be open
to
unspecified recipients in nature - so not among just a small group of
members,
I think. The examples given by a document issued by a ministry is web pages
and
electronic bulletin boards.
This annotated version of the law issed by a ministry specifically explains
that
provider includes people doing web hosting and people who serve as an
administrator
for electronic bulletin boards.
Now are we as volunteer, unpaid, admins are admins in this sense? Or only
Jimbo
can be thought of as an admin? I don't know.
But from what I have read, some people would think that we are likely to be
found so.
There is no case that I am aware of.
If only Jimbo is the admin, it would mean that so-called admins at Japanese
wikipedia can just ignore defamatory or copyright infringing material even
when they
obtain a knowledge of it, and tell concerned parties to talk to Jimbo. I am
personally
quite unsure if the court would find that it is the case.
(And I am not sure if Jimbo, an American living in the US, can be held
liable for a
message that is stored in a US server, defamating Japanese in Japanese
language
in Japanese social context. It sounds close to the case if Yahoo! can sell
Nazi
memorabillia in the U.S. because it is against French law.)
Among the difficult issue here is that providers, based on other law, to
serve
the users in an indiscriminatory manner. (I am not sure how this obligation
is actually
interpreted in the actual cases). Because of that clause (is the right term
here?),
there is a possibility that deleting something from a BBS or wikipedia is
illegal -
because that deletion may curtail paricular users' right to communicate. And
of
course there is the other possibility - not deleting is possibly illegal
when the
posting is defamatory, copyright infringing, etc.
The basic conditions on whith a provider can be held liable is that
1) s/he had a technological means to stop the violation of others rights
(such as by
deleting a message), but haven't used it.
and
2) either of the following two:
2-a) s/he had a knowledge of it
2-b) s/he is in a situation in which s/he could have reasonably came to
believe
that there is a violation.
(by not responding to a request to look into a specific posting, or not
taking a reasonable step to make sure that the posting does not
violate of others' rights, for example).
(also notice that that, even if a provider makes a factually wrong judgement
regarding violation/ non-violation, the provider cannot be held liable as
long as
it was reasonable to believe what the provider came to believe.)
As I understand, defamation and copyright infringement is quite
difficult to judge - the existence of an external web page having the
same text as the one recently posted on Wikipedia does not prove anything,
even though it is an indication of infringement. The external web page
may be from another public domain text, and the wikipedia posting
is also the same PD source, for example. And admins are in a
double-bind where they can be held liable by deleting something by
mistake as well as not deleting something by mistake.
The law further specifies, for example, that when a victim makes a
formal request to delete certain posting for certain reason, and the
poster of the message do not oppose to the deletion after an
inquiry has been sent and certain time has passed, then the
provider can delete the posting without possibilities of being
held liable for the deletion.
There are other cases, when the poster opposes, for example.
But what if just a third party leaves a message on
Wikipedia:Votes for Deletion regarding potential violation?
The law, and annotated version issued by the government,
do not say anything specific. Another widely-referred guidelines
issued by an industry assosiation (kind of) with many legal experts'
helps, specifically say that that kind of third party notification
is something they cannot touch upon because the law and cases
do not give us any reason to believe that
1) a third party notification constitute a knowledge of infringement
or a situation in which a provider can reasonably come to believe
that such an infringement exist.
NOR
2) a third party notification do not constitute a knowledge of infringement,
and the victim has to notice the infringement (which is often very
difficult)
and notify the provider.
So, all combined, all I can say is that there is no strong indication that
admins at japanese wikipedia will not be held liable, and the uncertainties
include how the past court case regarding a sysop for a BBS could apply to
wikipedia admins, and if the definition of provider in the provider
liability law
covers wikipedia admins, among other things.
I hope I could answer you better, or at least quicker, and I am sorry for
this untimely reply. But I really appreciate your concern.
best,
Tomos
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