Wikipedia is the online collaborative encyclopedia operated by the Wikimedia Foundation.
The latter forbid herself to take part in the choice or the content of articles put online, but it does not exclude that her responsibility could be engaged as host.
For this, Wikipedia is subject to rules relating to the identification of authors, but also the deletion of illegal content.
I. The communication of identification data
The trend appear that Wikipedia is described by the court as a web host [1].
According to article 6 II of the LCEN [2], the hosts must hold and preserve the data likely to allow the identification of anyone who contributed to the creation of any content they host.
When the author of the contested article is anonymous, Wikipedia may be required to communicate the identification data.
The list of data to be held is provided by Decree No. 2011-219 of 25 February 2011 [3].
This decree sets the time-limits to store data at 1 year.
The communication of the data may be ordered following a judicial request, or an action for interim measures. For example, in a judgment dated of July 10, 2008, the Tribunal ordered Wikipedia to communicate the IP address to identify a contributor. The article in the encyclopedia revealed defamatory and abusive remarks, such as « big cunt, big shit » [4].
In another trial, the judge of interim measures ordered Wikipedia to communicate the IP address of the author of the disputed remarks.
However, as the 1 year retention period was exceeded, the applicants could not obtain the contact details of the user by Free, a French telephone provider [5].
In addition to being potentially condemned to release identification data, Wikipedia may be held liable when it does not promptly remove obviously unlawful content.
II. Deleting illegal content
It is possible to ask Wikipedia for the deletion of a publication that would violate the rights of a person: reputation, disparagement, defamation, insult, privacy, personal data etc …
First of all, the applicant must prove this infringement.
Otherwise, his request will be rejected.
This is the case when the bailiff’s report does not establish that the encyclopedia contains the terms referred to in the summons [6].
If it is intended to condemn Wikipedia to delete the content directly, without going through the authors, it must, in addition, demonstrate that the contested remarks are clearly illegal.
In one case, the Court took note of Wikipedia’s deletion of comments contained in the « private life » section, which manifestly violated the applicant’s privacy.
On the other hand, it considered that the remarks inserted in the heading « controversy » did not have a manifestly illicit character [7]
In another case, an astrologer asked for the deletion of an article, which damages her reputation.
It was held that the remarks were not defamatory and insulting, and were free criticism.
Therefore, the disorder invoked was not manifestly unlawful [8].
In addition to the manifestly unlawful nature of the remarks, when the plaintiff acts against Wikipedia especially on the basis of defamation and insult, he must respect a certain formalism.
The applicants must first take legal action within a period of 3 months from the publication of the disputed remarks.
Failing this, their action is prescribed on the basis of the article 65 of the 1881 Act [9]
And, the reappearance of deleted articles can not be regarded as a new act of publication in order to make run a new limitation period [10]
Nevertheless, the Court of Cassation considers that constitutes a new act of publication, interruptive prescription, moving a content of the tab « history » to the tab « article » of Wikipedia [11].
Another way to break the limitation period is to file a lawsuit against X.
In addition, this 3-month period also applies to the right of reply of the person concerned.
In order to be valid, the subpoena must comply with the conditions set out in section 53 of the 1881 Act. [12]
Was considered void by the judge, an action against Wikipedia which did not aim the articles 29 al 1, and 32 al 1 of the law of 1881 [13]
Another was canceled for failure to notify the Public Prosecutor under section 55 of the Act [14]
These cases illustrate the difficulty of obtaining the conviction of Wikipedia to remove defamatory or offensive content.
By Arnaud Dimeglio, lawyer and Nakita Ly Tong Pao, lawyer student