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Court ruling complicates the paid-editing debate

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By Gnom, Sandstein, Jan Eissfeldt, and Tony1
Frankincense resin

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.

Ruling

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.

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.

Brief notes

  • 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.
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  • Thanks for plugging PC RfC3. I don't know if it's right to call it "final" since policy is never immutable, but it's the final one before we go live with PC level 1 on December 1. Let me know if you have any questions if you are going to do a piece on what PC level 1 is about. Gigs (talk) 14:25, 14 November 2012 (UTC)[reply]
  • Although you mention the selection of a three-member commission to resolve any disputes concerning the upcoming election, I don't see any reference in this issue to the upcoming Arbitration Committee election itself. Given that the deadline for candidates to sign up will expire before the next Signpost appears, I wonder if it is possible to do anything to rectify that. Thanks, Newyorkbrad (talk) 15:04, 14 November 2012 (UTC)[reply]
  • "can be subject to claims from competitors or government authorities": what kind of claims by government authorities? This in my mind is the crucial question, whether such edits are being interpreted by anyone as "illegal", or merely as grounds to be sued by a competitor. - Dank (push to talk) 17:51, 14 November 2012 (UTC)[reply]
    • In the US the FTC has the burden of proof in their enforcement actions, which are civil actions. Generally the FTC seeks injunctions, but under limited circumstances can seek monetary relief. Violations of FTC regulations do not, by themselves, create a cause of action for private lawsuits, but private lawsuits sometimes follow FTC actions.
    • So to answer your question, it's kind of both. You can be sued by the FTC, customers, or competitors. It's generally not a criminal matter, so I guess it depends on how you define "illegal". All my comments are in relation to the US. Gigs (talk) 19:07, 14 November 2012 (UTC)[reply]
  • Claiming that the ruling "complicates" the debate is pure spin on your part. It seems to me to simplify it very nicely: violating the bright line rule puts you at legal risk. I realise some PR people won't like it, but that's completely different from being in any way complicated. I would like you to detail precisely how it makes it more complicated, rather than simpler - David Gerard (talk) 09:20, 15 November 2012 (UTC)[reply]
  • Unless I misunderstand the German ruling, didn't the decision lat considerable emphasis on the fact that the German firm edited anonymous, as an aggravating factor? DGG ( talk ) 14:34, 16 November 2012 (UTC)[reply]
    • DGG, I think you're right. But I don't see the ruling as a particularly viable or practical or, indeed, meaningful in the bigger picture. I'll be very surprised if it doesn't turn out to be the precursor to further judicial judgements, either rendering this one as an aberration or modifying it into oblivion. Aside from the multijurisdictional nightmare, the edits are impossible to police; and there are several boundaries the court thinks can be made in practical terms, but that are clearly as boldly etched as fog. So why indulge in the pretence in the first place? For similar reasons, I'm uncomfortable with Jimbo's anti-paid-editing line: it's just unrealistic, even though I'd sooner have zero tolerance for PE on foundation sites if we could identify PE. [PS, Gnom was responsible for the lion's share of the article ... kudos to him. We did help with surface editing and some niggles and conceptual queries, which Gnom dealt with admirably, I believe.] Tony (talk) 11:25, 17 November 2012 (UTC)[reply]
      • Thank you for your comment. Yes, the judgment does emphasise that the edits were made anonymously. But then it also says that noone ever reads the talk pages. So, who ever reads the history? Even fewer people. So if the edits were made from an account that clearly states the business context, the average reader would still not see that part of the article was written by or for a company. I belive that this judgment will in fact be used as a precedent for injunctions in similarly controversial areas where paid editing is used to promote business, thinking of regulated industries like pharmaceutics. --Gnom (talk) 01:09, 18 November 2012 (UTC)[reply]
  • Peoples' own interests affect what we think, what we do, and, inevitably, what we write. It is not a character flaw; it is a fact of life. It is true even if for the most honorable, fair-minded person. It is even truer of someone whose duty is to advance the interests of a client or employer.
Just today, I read a post by respected legal blogger. Unlike what he usually writes, this post began with an obviously one-sided statement of the issue in a judicial decision. I suspected from that first line that he or his law firm represented the party that this statement favored. The rest of the piece analyzed why the decision was wrong, with no explanation of why a unanimous 3-judge court decided decided the way it did. At the very end, the author disclosed that his firm was hired to appeal the decision. I read the case myself. Not only did the author slant what he said, but he left out material that any fair report of the decision would include. If that blog post were a Wikipedia article or stub, disclosure of the author's COI still would not give a reader a fair summary of the decision.
The German court was correct to base its decision on what a typical reader would assume and expect. That should be the basis of our policies as well.—Finell 03:33, 20 November 2012 (UTC)[reply]
  • Thank you for your comment. I understand that you agree with the court and my reading of the judgment. Actually, I originally considered including a note in my post stating that the law firm I work for has nothing to do with the judgment (although I plan to discuss it with my media law colleagues in one of our next meetings, because, inter alia, it affects how we advise our clients on their social media policies). --Gnom (talk) 10:36, 21 November 2012 (UTC)[reply]
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