Wednesday, 10 September 2014

Defamation through Wikipedia postings

The Athens 1st Instance Court issued last week its long awaited judgment on the application for protective measures of a Greek university Professor against a Greek Wikipedia user, who posted allegedly unflattering statements on the Wikipedia article about him. Legally speaking, the case has no foreign elements; still, it raises issues affecting international civil litigation aspects [Athens 1st Instance Court Nr. 9118/2014, unreported].

THE FACTS: The applicant is an active academic, an ex-Minister & and ex-member of the Hellenic Parliament. The defendants are the Greek Free / Open Source Software Society and a Greek Wikipedia user and administrator, using the nickname ‘Diu’. The applicant contends that he searched info about him in Wikipedia on November 25, 2009. Indeed he found an article, which contained defamatory statements against his personality and honour. Following some private investigations, he discovered the author / contributor of this particular paragraph, containing the insulting statements. The applicant filed an action against the persons above, which is scheduled to be tried on January 2016. At the same time, the applicant was granted a temporary restraining order, according to which the second defendant was obliged to remove the phrases constituting defamation until the Athens 1st Instance Court issues its decision in ordinary proceedings. A more detailed presentation of the facts can be found here  and here.

THE RULING: The court began its analysis by providing a thorough presentation of the legal nature of a blog. It then continued by referring to Art. 11, 13, 14 & 17 of the Presidential Decree 131/2003, which transposed the E-Commerce directive (2000/31) into Greek law [the above provisions correspond to Art. 12, 14, 15 & 18 of the EC directive]. The court proceeded with the examination of the procedural requirements (jurisdiction / competence / standing to sue – to be sued) and found that the application fulfils the requirements set by Greek law on Civil Procedure. It then entered into the examination on the merits, and concluded that the content of the statements added by the second defendant in the article written about the applicant in Wikipedia were not defamatory, because they merely reiterate what was written in the press and nothing more than that.

COMMENTS: Given the nature of this blog, I refrained from providing details on the court’s analysis regarding substantive law. From the litigation perspective, there are a couple of issues to be addressed.

a.      As mentioned in the beginning, although the case did not involve any foreigners, it raises important international litigation issues. First and foremost, the choice of the applicant deserves special attention: He didn’t direct his application against Wikipedia; on the contrary, he opted for starting litigation against the author / contributor, located in Greece. His choice however proved to be ineffective: In spite of the temporary restraining order against ‘Diu’, dozens of other users uploaded several times the same content which was removed in accordance with the order. This is a demonstrative sign of the ineffectiveness of taking similar measures in cyberspace. In other words, it proved the vanity and futility of coercive measures against Wikipedia users, reminiscent of the notorious labour of Hercules against the Lernaean Hydra.

b.      The court did not spend a word regarding the first defendant’s standing to be sued. This is really strange, given that the Greek Free / Open Source Software Society challenged this point, and it even raised the matter prior to the hearing, by issuing a press release in Greek [see here].  Indeed, the above defendant is not affiliated with Wikipedia, and there’s no evidence in the judgment proving the opposite. Nevertheless, the 2nd defendant was also exempted; however, the reasoning was far from accurate: It was considered as a provider, who wasn’t obliged to control and intervene with respect to the content of the users’ contributions.

The conclusions to be drawn from this judgment are the following:

a.      Prima facie, it seems that Greek courts are not yet aware of the specificity of the WWW, and Wikipedia in particular.

b.      It has been also evidenced that the applicant was not particularly informed in terms of the effectiveness of the measures sought.

c.       An alternative scenario could have been the involvement of Wikipedia in the proceedings. This choice wouldn’t raise any problems for the applicant from the international jurisdiction point of view, in light of Art. 5.3 Brussels I Regulation, and could have proven to be more effective.

I will be following the developments, and report on the next chapter of the case.