Translation:Order of relief, Mrs M. B., Mr P. T., Mr F. D. vs. Wikimedia Foundation Inc.
Assignment of October 8, 2007
By Emmanuel BINOCHE, Senior Vice-President at the Tribunal de Grande Instance de Paris, holding the public hearing on interim measures delegation by the President of the Tribunal,
Assisted by Marlene MARQUET, Registrar.
- Ms. M. B.
- Mr P. T.
- Mr F. D.
Represented by Francis PUDLOWSKI, attorney at the Paris Bar — R 58
- WIKIMEDIA FOUNDATION INC
- 200 2nd Ave. South # 358
- St Petersburg FL 33701-4313 - USA
Represented by Jean Philippe HUGOT, attorney at the Paris Bar — C.2501
WITHDRAWAL to Mr Prosecutor Near the Tribunal de Grande Instance de Paris
Copies enforceable issued:
At the hearing on October 22, 2007 chaired by Emmanuel BINOCHE, First Vice-President held publicly,
We, the President,
After hearing the parties appearing or their counsel,
Given the summons issued on October 8, 2007 by Mrs. B., MM. P. T. and F. D., following which it is requested relief:
- Note that violation of the article 9 of the Civil Code, the WIKIMEDIA FOUNDATION has infringed the privacy of Ms. M. B., MM. P. T. and F. D. by hosting on its site, on the encyclopedia WIKIPEDIA, the following:
"Several times cited by gays & lesbians associations as a corporate where it is nice to work when you are homosexual. Mrs. B. emblematic of this movement advocating the difference in the company — its teams are managed by young professionals from the gay community who assume their full role: X. J. P. T., F. D. The pillars of this new generation of leaders."
"And it is because of her activism in the evolution of the rights of homosexual couples that Mrs. B. was able to obtain in 2001 with the approval of the DDASS to adopt 2 children from Cape Verde"
- that the WIKIMEDIA FOUNDATION has committed the crime of defamation with respect to Madame B., and planned crime punishable under Articles 29 paragraph 1 and 32 paragraph 1 of the Act of July 29, 1881 by hosting on its website WIKIPEDIA the following:
And it is because of her activism in the evolution of the rights of homosexual couples that Mrs. B. is able to obtain in 2001 with the approval of the DDASS to adopt 2 children from Cape Verde."
- Note that despite the request by mail on 27 and 28 September 2007, WIKIMEDIA FOUNDATION refused to withdraw the text of WIKIPEDIA website, which is still in the history of the WIKIPEDIA article devoted to S.
- Condemn WIKIMEDIA FOUNDATION to remove two paragraphs entitled "PARTICULARISM" (from "Several times cited" to "Cape Verde") contained in the article S., published on the site WIKIPEDIA under the URL http://fr.wikipedia.org/wiki/S.; the history of the site and make access impossible and subject to a penalty of 5,000 euros per day for late payment of delivery of this decision,
- Condemn WIKIMEDIA FOUNDATION applicants to the exact coordinates of the writer of the article S., posted August 25, 2007 at 4:42 pm, identified by the IP address 82.224.51.xx and that under the provisions of Article 145 of the new Code of Civil Procedure and Article 6, II of the Act of June 21, 2004,
- Condemn WIKIMEDIA FOUNDATION to pay to Mrs. M. B., M. P. T. and Mr. F. D., the sum of € 15,000 each as a provision on damages as a result of the breach of their privacy,
- Condemn WIKIMEDIA FOUNDATION payable to Mrs. M. B. the sum of 15,000 euros as a provision on damages interest for defamation,
- Condemn WIKIMEDIA FOUNDATION payable to Mrs. M. B., MM. P. T. and F. D., the sum of € 3,000 each under Article 700 of the new code of civil procedure and the payment of costs.
Given the findings of the foundation of American law WIKIMEDIA FOUNDATION Inc. who for the most demand in limine litis declare the annulment of the document instituting, as a subsidiary to note that responsibility for the foundation WIKIMEDIA may not be initiated and put it out of the event, and the plaintiffs to dismiss their request for identification;
Considering the notification on October 10, 2007 of the document instituting Mr. the public prosecutor, absent at the hearing, which has not commented;
ON THE CHALLENGE OF REGULARITY OF DOCUMENT
The foundation WIKIMEDIA FOUNDATION Inc. argues first that the requirements of Article 53 of the Act of July 29, 1881 have not been met there, what the act seeks cumulatively Article 9 of the Civil Code and Articles 29 § 1 and 32 § 1 of the Act of July 29, 1881, having renounced at the audience the plea that there is no notification to Mr. the prosecutor, which was justified.
But given that it is clearly distinguished in the grounds of the document that falls in the eyes of applicants for the invasion of privacy (page 8, paragraph 2), or the allegation, real or perceived, of homosexuality of the three plaintiffs, which would be the defamation or insinuation directed exclusively towards Mrs. B. because it could not adopt two children through a "activism" for the rights of sexual minorities (page 8, paragraph 3); only a paragraph, clearly reflected in the operative part of the document under the visa of Articles 29 § 1 and 32 § 1 of the Act of July 29, 1881, consisting of a sentence is very distinct from the rest of the text in question, states: "And it is thanks to the activism I evolution in the rights of homosexual couples that Mrs B. able to obtain in 2001 with the approval of the DDASS to adopt children dem Cape Verdean."
It should be remembered that nothing prevents an applicant to involve about aiming for a national qualification to the provisions of Article 9 of the civil code to protect the privacy on the one hand and to those of the law of 29 July 1881 protective of freedom of expression and déünissant strictly its abuses on the other hand, the basic principles involved are essentially different in nature, since it may result in no confusion for the exercise by the defendant of his rights to defend, that the foundation defendant could not sustain serious he could result from the presentation of facts such an ambiguity as to the qualification of the facts it has been in able to defend;
What result it can be pronounced the cancellation of the document on that basis;
The foundation WIKIMEDIA FOUNDATION Inc. argues that the second period of ten days provided for in Article 55 of the law of 29 July 1881 in order to prove the truth of defamatory facts have not been respected, having been touched by the significance of the document, which must be issued before October 8, 2007 at 5 pm, on October 17 for a hearing held on October 22, 2007.
The plaintiffs argue that the subpoena was issued in a timely fashion.
Whereas it should be noted first, that having decided also to remove the site about the issue, the foundation seems to deprive defendant objectively supply proof of its essential purpose, V is preserving free expression;
Considering however that the subpoena was, according to the authorization given on October 3, 2007, to be issued before the 5 October, 5 pm, the second original of the document issued by the bailiff carries the instruments dated October 8, 2007, 2 pm; indicated sending the same on October 8 of a registered letter with acknowledgment to the organisation responsible accordance with the provisions of the Hague Convention of the notification, the recipient is parallel notified directly on the same day of sending the feat by registered mail with advice of receipt, in accordance with the provisions of article 647-1 of the new code of civil procedure, the date of service of the extrajudicial document in question happens to be in respect of applicants the date of shipment by bailiff, October 8, 2007;
That surplus, if the defendant claims to have been affected by the significance of Oct. 17, 2007, it does not provide any justification;
What this means seeking the annulment of the document instituting will also be rejected;
It argues finally, based on a law on a publisher whose president had not been assigned, as the legal representative of the foundation WIKIMEDIA ought to be directly assigned to his or her home, and that failure has prevented him from exercising his right to offer evidence of the truth of defamatory facts.
But given that the parties agree that it is acting as a provider of accommodation that the foundation WIKIMEDIA is given, especially for halting damage caused by the content of a communication service line, as defined in Article 6.1.8 of the Law No. 2004-575 of June 21, 2004, it supports not intervening in any way in the selection or content services, which belongs according to his explanations to the community volunteers, and that according to the minutes of observation erected on 24 and 25 September 2007, it is stated that the foundation "has no role or editorial control" (Annex 16), and the association after the 1901 law Wikimedia France "has no editorial role" (Annex 17);
What result it will not be granted the request to declare the annulment of the document instituting;
Ms. M. B. presents herself as the general director (CEO) of the society S., which is aimed at the conception, development and management of services to improve the management of health care, MM. P. T. And F. D. being managers of this company.
She says having Sept. 24, 2007 found on the website WIKIPEDIA an article describing the company's activities S., and divided into 7 subparts — History, concepts, critical perspective, executives and managers, particularism and notes and references —.
The plaintiffs are challenging the content of the "PARTICULARISM" the terms of which are mentioned above.
The plaintiffs, Ms. B, and MM. T. and D., based on a report prepared by observation of bailiff in Paris on September 24, 2007, and September 27, 2007, notice was sent by e-mail by their counsel to the foundation WIKIMEDIA, hosting WIKIPEDIA sites, non-profit foundation of American law, whose headquarters is in Florida, for the purpose of withdrawing the article, in accordance with the procedure described on the site, followed by a second on September 28, 2007.
The article had not been withdrawn by WIKIMEDIA FOUNDATION and these formal notices being left unanswered, the plaintiffs state that the "PARTICULARISM" has been removed from the page devoted to S. A surfer on 1 October 2007 in connection with the operation of this site, any user with the ability to change the content of the articles, delete them or discuss their contents.
They complain, however, that the article remains accessible in the history of article S. for any visitor to the site.
The remarks in question, as a result of the alleged homosexuality, real or alleged persons named, have a sense clearly violate their privacy; they are, in addition, a defamation with respect to Mrs. B., under Articles 29 § 1 and 32 § 1 of the Act of July 29, 1881, implying in the last paragraph that it was unable to adopt two children through a so-called "activism" and not according the normal process, which undermines her consideration.
They seek the withdrawal of the "PARTICULARISM" on the basis WIKIPEDIA history and they also require a provisional payment to argue on damages.
They argue that WIKIMEDIA is a hosting provider within the meaning of artic1e 6.1.1 of the Act for the confidence in the digital economy of June 21, 2004, so that responsibility can be held liable since he knowledge of illegal remarks made on its site, the WIKIPEDIA site, created in 2001, is an universal and multilingual online encyclopedia, the content of which is freely modified by users.
They refer to a decision made by this tribunal which convicted a company, after having qualified to host, for not having withdrawn its video site protected by copyright.
This solution seems perfectly applicable to the site WIKIPEDIA created and managed by WIKIMEDIA, which provides its users the means to disseminate articles, which can not ignore the fact that Internet users can make online articles to illegal content; it located therefore obliged to withdraw the article once it is aware.
Arguing that the foundation WIKIMEDIA as hosts liable for not having made every effort to make it impossible to access the item in question, they consider themselves on the basis of Article 6-1-8 from the Act of June 21, 2004 entitled to seek immediate withdrawal of its history of the site and make access impossible, under penalty of 5,000 euros per day for late payment of the judgement.
Furthermore, the author of the article S. posted August 25, 2007 identifying himself with the IP address 82.224.51.xx and Article 6.11 of the Act of June 21, 2004 requiring hosts to hold and retain data that would allow identification of anyone who has helped create the contents or the contents of one of the services they are providing, they ask communication accurate coordinates of the person so identified.
The foundation WIKIMEDIA opposes the absence of monitoring obligation of content, the fact that she had no knowledge about the issue, and it has not received formal notices, which have not complied with the formalism of Article 6.1.5 of the Law of June 21, 2004.
This knowledge of the facts at issue is therefore not presumed acquired, and would have been, the content could not be regarded as manifestly illegal within the meaning of the reserve interpretation in its decision of 10 June 2004 by the Constitutional Council.
She argues finally that reception on October 17, 2007 to assign it has removed the content at issue. It also argues that the service provider and not the hosting provider which is in a position to provide details of the author of litigious words in the light of the Internet Protocol address and the date and time of the publication.
Due in the first place he is not seriously challenged as questionable or day of the hearing the content in question had been removed and that that court enjoying the requests at the time when it gives a verdict, the one that tended to withdraw the historic site of the Wikipedia no longer serves any purpose;
Considering that under article 6.1.2 hosting providers can see their liability incurred as a result of information they store if they did not have actual knowledge of unlawful or facts and circumstances showing that character;
It should also be recalled that under Article 6.1.7 of the Act, hosting providers are not required to a general obligation to monitor the information stored, or to seek facts or circumstances indicating illegal activity;
That can not be regarded as the evocation of a decision that the plaintiffs cite suggested then, however, that nothing is paid to the debate in the sense that the defendant is a danger that, on a regular basis, internet users contributing to the content of the encyclopedia present on the site may be forced to hold about violating the privacy of third parties or having a defamatory;
Whether it is clear that the notification invoked by the plaintiffs was not made following forms of Article 6.1.5 of the Law of June 21, 2004; that the email on September 28, 2007 in particular, it includes the exact address of the page containing the content in question, makes no mention of legal provisions, which are essential for the verification by the recipient of manifestly illegal to be taken by the content in question, with regard to the information provided on the site (annexes 26, 27 and 33), is only reported evidence of the sending — and not its receipt of an e-mail — and not on a letter sent by post with the proof of receipt; that then, the question knowledge of the unlawful nature of what could be less deemed as regards the lack of respect for privacy in this case the evocation of a recognition, real or not, of the company by associations defending sexual minorities as an example with regard to respect of their rights, requiring consideration of the position of the persons designated on the revelation of their differences, real or supposed;
That does not appear with all the necessary evidence before this court to take provisional measures in that the responsibility of the foundation WIKIMEDIA has been committed;
ON REQUESTS FOR ALLOWANCE AS PROVISIONAL
Considering that under Article 809 § 2 of the new Code of Civil Procedure, in cases where the existence of the ob1igation is not seriously disputed, it may be granted an allowance to the creditor;
Considering that in assessing whether the provider, informed by the act instituting the proceedings, acted swiftly within the meaning of Article 6.1.2 above referred to remove the data or make access impossible, it should to be at the date of receipt of the notice, the parties agree that the withdrawal was reached at an earlier date at the audience held on October 22, 2007, it should be considered accordingly by the court, in the absence of evidence to the contrary hypothesis that the foundation WIKIMEDIA, Law of the State of Florida (United States of America), acted promptly as soon as it became aware of a clear and non equivocation by the document because the petitioners challenged the reference made about their privacy, and Mrs. B. The presentation of her work;
That obligation invoked at the expense of the foundation WIKIMEDIA to compensate the plaintiff for the damage caused to them is therefore seriously questionable, it could not be granted their requests made to that effect;
ON THE IDENTITY SOUGHT
The foundation WIKIMEDIA argues that the applicants have the date and time for the online issue of the article by its author, August 25, 2007 at 4:42 pm, as the following address Internet Protocol (IP) 82.224.51.xx corresponding to the personal computer used, and that only the service provider may be able to transmit the data to pinpoint the user.
Considering that the data actually result of the play No. 2 provided by the applicants, it is not disputed that the supplier that provided Internet access to the user and is able identified to communicate the details under which it endorsed his license that he is on the other hand failed to demonstrate that the foundation WIKIMEDIA available data other than those posted on the play communicated;
It is therefore necessary to make the injunction sought;
What therefore there is place on those issues he refers;
That does not, however, contrary to the equity of not implementing the provisions of Article 700 of the New Code of Civil Procedure;
What costs are however left to be paid by the applicants.
On those grounds,
By order made available at the Registry, contradictory and in the first instance,
Reject the request of the foundation of law in the State of Florida (USA) WIKIMEDIA FOUNDATION Inc. Seeking the cancellation of the act which instituted,
In the light of article 6.1.8 of the Law No. 2004-575 of June 21, 2004,
Recognize that the application for withdrawal of the historic site WIKIPEDIA contents of the section entitled "PARTICULARISM" of the article S. accessible at http://fr.wikipedia.org/wiki/S. and to make access impossible, is now irrelevant,
Recognize that the foundation WIKIMEDIA acted promptly to stop providing access to content as soon as it became aware of its manifest illegality,
Nonsuit Mrs. B., MM. T. and D. their claims for an allocation of compensation on a provisional basis,
Nonsuit their claim for identification data to the user with the IP address 82.224.51.xx,
Let us say there are no measures accordingly,
Let us not take place in accordance with the provisions of the artic1e 700 of the New Code of Civil Procedure;
Let the entire cost be paid by Mrs. B., MM. T. and D.
Done at Paris on October 29, 2007
The Registrar, the President,
Marlène MARQUET Emmanuel BINOCHE
- government social service