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Australian case law follows EU trends 
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It seems that Australia's High Court is sympathetic with the EU's "right to be forgotten." They ruled that a citizen can sue Google for defamation because Google's search results linked him with content that suggested incorrect associations. Since Wikipedia's BLP content is ranked at the top of Google's results, I would hope that the Wikimedia Foundation will take notice of this tendency.

The Foundation should instruct their engineers to insert a "noindex" tag in the header of all BLPs that contain the words "Australia" or "Australian." There is already a list of BLP articles, and it would not take much to run through them and narrow the list to just articles with either of those two words in the article.

Then the next time Google comes along to re-index the BLP of those Australians, they should do the right thing and delete that article from their index. Even if Google doesn't do this, at least the Foundation is off the hook. You will still be able to do your searches for Nicole Kidman by using the search box on Wikipedia, or by using any other non-Google search engine.


Wed Jun 13, 2018 6:03 am
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Philosophically speaking I suppose the easiest answer would be to redirect all such BLPs to a single page.


Wed Jun 13, 2018 1:24 pm
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I can't help wonder what would happen if a bunch of EU and Australian citizens started suing the WMF or even the individuals editing articles about them? Even if they didn't win the cases (which likely at least some would) the WMF could be required to spend a significant amount of money in litigation. Personally I doubt any individual case would be enough to break them, but if there were several or one that was done by a government entity, it could be devastating for the WMF.


Wed Jun 13, 2018 4:14 pm
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Daniel Brandt wrote:
It seems that Australia's High Court is sympathetic with the EU's "right to be forgotten." They ruled that a citizen can sue Google for defamation because Google's search results linked him with content that suggested incorrect associations. Since Wikipedia's BLP content is ranked at the top of Google's results, I would hope that the Wikimedia Foundation will take notice of this tendency.

The Foundation should instruct their engineers to insert a "noindex" tag in the header of all BLPs that contain the words "Australia" or "Australian." There is already a list of BLP articles, and it would not take much to run through them and narrow the list to just articles with either of those two words in the article.

Then the next time Google comes along to re-index the BLP of those Australians, they should do the right thing and delete that article from their index. Even if Google doesn't do this, at least the Foundation is off the hook. You will still be able to do your searches for Nicole Kidman by using the search box on Wikipedia, or by using any other non-Google search engine.


Nothing to do with 'right to be forgotten'!


Thu Jun 14, 2018 11:35 pm
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Larkin wrote:
Nothing to do with 'right to be forgotten'!

I disagree. Both have to do with a citizen's right to challenge an entity's presentation of digital information about themselves that the citizen feels is unfairly damaging to their reputation. In the EU this legal situation is referred to as the "right to be fogotten". Google has received hundreds of thousands of requests for deletion of search results, and has to consider each on its merits.

The Australian High Court is now saying that Australian citizens have a similar right to challenge Google (and presumably other digital entities as well).

Therefore, from the perspective of Google, or from the perspective of any other digital entity with broad reach in the EU or in Australia, the two legal situations are similar. This is much different than the situation in the U.S, where there is no comparable legal right. Defamation cases in the U.S. have to be based on allegations of fact that are proven to be false. Even then, it's not clear that Google, for example, would be liable because they are merely linking to what someone else said. That's a far different standard. Google has nothing to worry about in the U.S., and that's why they only accept complaints from EU citizens.

I use the "right to be forgotten" as a catch-all reference to the new legal situation for EU citizens and now, for Australian citizens as well. Wikipedia is a digital entity and the Foundation, which owns and operates the servers, has control over content in Britain (an EU member) and Australia. The "right to be forgotten" trend should be of interest to the Foundation. In 2006-2007 it took 14 AfDs and my hivemind page before I got my bio deleted, which was started by SlimVirgin in 2005 without asking me. It really shouldn't have been that difficult for me.


Fri Jun 15, 2018 10:18 am
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Given the age of Wikipedia now, there will be thousands of situations where it is either the only case, or the most prominent/authorative case, of a private person's name appearing on the internet.

It's a veritable black hole of liability, and long may they ignore it I say.


Fri Jun 15, 2018 11:10 am
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Think of it this way:

Let's say that you are looking for a job. The last time I sent out a resume was in 1998, and it didn't matter that some of my history was semi-notable. I was convicted of a felony (refusing induction) in 1969, and even though it was reversed by a higher court on a technicality (draft board was too aggressive), it could have been a problem. Job applications always asked if you've been convicted of a felony.

Now imagine that there was a Google and a Wikipedia back in 1998. An anonymous editor who is familiar with your past, and is highly respected by Jimbo, starts a BLP on you. Your bio stays at number one in a Google search for your name for two reasons: Google loves Wikipedia, and there are no namesakes in Google's index to compete with the ranking of this Wikipedia bio.

You keep sending out your resume and you never get any callbacks from prospective employers. Can you guess what is happening here? (You only get one guess.)


Fri Jun 15, 2018 12:33 pm
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I'd imagine this was the driving force behind these laws in the first place. That doesn't mean the WMF is suddenly going to start giving a shit. Their rules and practices have barely changed wrt to the fundamental issues - what do they publish, how do they control it, and how do people complain about it. That is a long time, very long in the digital world, and plenty long enough to prove negligence even if this were a traditional industry where it might take decades to update equipment, train staff and audit records.


Fri Jun 15, 2018 1:07 pm
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CrowsNest wrote:
I'd imagine this was the driving force behind these laws in the first place. That doesn't mean the WMF is suddenly going to start giving a shit. Their rules and practices have barely changed wrt to the fundamental issues - what do they publish, how do they control it, and how do people complain about it. That is a long time, very long in the digital world, and plenty long enough to prove negligence even if this were a traditional industry where it might take decades to update equipment, train staff and audit records.
This is an excellent observation. In U.S. law, a famous decision that limited the First Amendment in terms of free speech was the case about falsely shouting "fire" in a crowded theater and causing a panic (Supreme Court, 1919). Ironically, the case was about an anti-draft protester (a naughty Socialist) who passed out leaflets that opposed the draft. The protester lost, of course, because "the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent."

But looking at WWI a hundred years later, and add the U.S. involvement in Vietnam 50 years after WWI, I have to hope that perceptions have changed a bit. I contend that the combination of Wikipedia and Google is a "clear and present danger" to the well-being of U.S. citizens who lack the financial resouces to fight this combination. Since Wikipedia has fewer resources than Google, it's the soft underbelly in this case. Wikipedia has to be stopped unless and until the Foundation sets up some sort of appeal process for victims who are damaged by its content.


Fri Jun 15, 2018 2:12 pm
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Daniel Brandt wrote:
Larkin wrote:
Nothing to do with 'right to be forgotten'!

I disagree. Both have to do with a citizen's right to challenge an entity's presentation of digital information about themselves that the citizen feels is unfairly damaging to their reputation. In the EU this legal situation is referred to as the "right to be fogotten". Google has received hundreds of thousands of requests for deletion of search results, and has to consider each on its merits.

<snip>

I use the "right to be forgotten" as a catch-all reference to the new legal situation for EU citizens and now, for Australian citizens as well. Wikipedia is a digital entity and the Foundation, which owns and operates the servers, has control over content in Britain (an EU member) and Australia. The "right to be forgotten" trend should be of interest to the Foundation. In 2006-2007 it took 14 AfDs and my hivemind page before I got my bio deleted, which was started by SlimVirgin in 2005 without asking me. It really shouldn't have been that difficult for me.


Daniel, first of all I know of your treatment by Wikipedia and my sympathies are with you. I also understand 'catch-all reference'.

Nevertheless there is a clear distinction between Trkulja (the Australian decision) and Costeja (the EU right to be forgotten decision). Trkulja, as an EU citizen, would have had the right to sue Google even before the Costeja decision. What Costeja did was guarantee his privacy where there was no public interest involved. Thus suppose Trkulja actually had been guilty of associating with gangsters. Providing he was not a public figure or that there were other issues (public safety perhaps) making it a matter of public interest, then Costeja gives him the right to demand Google links to his gangster history be removed.


Fri Jun 15, 2018 11:06 pm
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