Wikipedia in the courts: from skepticism to reasonable approaches
With the development of the Internet, Wikipedia has replaced most people with a typographic encyclopedia. The popularity of Wikipedia has reached such proportions that the Russian courts and government agencies
are trying to block Wikipedia , then use it in resolving disputes.
Wikipedia is an open-source, multilingual, universal Internet encyclopedia with free content. Users can independently change the contents of the pages, the so-called “wikis”, using the tools provided by the site. Whenever the contents of a Wikipedia page change, the editor’s alias (or its IP address), as well as a summary of the changes made, are visible in the “change history” page section. Thus, it is possible at any time to return the previous version in case of unfair editions, all versions of the page are stored on servers. The self-organized community of editors and administrators ensures that edits comply with Wikipedia guidelines.
Due to the fact that users have access to editing the content of the online encyclopedia, Wikipedia itself
does not recommend citing it as a source in research papers. But still the servants of Themis sometimes use Wikipedia in resolving court cases.
Wikipedia in the arbitration process
First of all, with the help of Wikipedia, arbitration courts establish the content of the newest foreign language terms, for example,
“camping” ,
“IP-address” or
“KPIs” .
In some cases, Wikipedia may be useful to the court when establishing other circumstances that are relevant to the resolution of the dispute. For example, not so long ago, the Ninth Appeal Court of Arbitration used information from Wikipedia in resolving cases of copyright infringement and collecting compensation, using it to establish licensing conditions for the distribution of the musical composition of the NewTone group (Decree of February 27, 2018 N 09-5769 / 18). In this case, the musicians demanded compensation from the All-Russian State Television and Radio Broadcasting Company for compensation in the amount of 3,000,000 rubles for using the song “Run!” On the Russia 24 TV channel (news
clip “Trump: I will be the best president ever created by God”). The court refused the music group, because it found in Wikipedia information about the permission of the copyright holder to freely use the composition. At the same time, the court took into account the public statements on the claimant’s blog about the possibility of free use of the composition “Run”, including by rotating the compositions (i.e. The messages broadcast).
Wikipedia materials can also be used as evidence of well-knownness of a phenomenon, for example, floods (Decision of the Arbitration Court of the Samara Region dated July 08, 2013 in Case No. A55-5855 / 2013. Resolution of the Fifteenth Arbitration Court of Appeal dated April 29, 2013 N 15-4536 / 2013 in case No. A53-24138 / 2012). This turned out to be significant in resolving the economic dispute between the two organizations arising from the violation of the terms of the supply agreement. Due to flooding in Thailand, where the defendant’s plant is located in the case, the delivery time has been violated. Naturally, the claimant-customer demanded to recover penalties for violation of the terms. In his defense, the defendant referred to force majeure - flooding, and pointed to the well-known nature of the cataclysm, which was confirmed by information published on Wikipedia. The court took this circumstance into consideration, but nevertheless assessed it not as a circumstance precluding the supplier’s responsibility, but as a circumstance mitigating its responsibility. The penalty for late delivery of goods was partially recovered from the defendant.
Links to Wikipedia can also be found in arbitration cases related to violation of the law "On Advertising". For example, an interesting case was considered by the Arbitration Court of the Udmurt Republic (
Decision of April 21, 2009 No. A71-2331 / 2009). In this case, the channel “TNT” challenged the prescription of the OFAS, which considered the advertisement of the channel with the mention of the word “horse” inappropriate and inconsistent with the law on advertising. When interpreting the word “loshara” OFAS used materials from Wikipedia. The court stated that the FAS did not provide any evidence of the interpretation of the word “loshara”, except for materials from the online encyclopedia, the authors of which are unknown, as is unknown and whether they are experts in the field of linguistics. As a result, the court reversed the decision of the FAS, independently examining the meaning of the word “loshara”. In particular, the court referred to a Soviet cartoon called “Losharik” - a story about a circus horse that performed best in the circus. In this regard, the court concluded that the word “loshara” is not perceived by consumers as offensive.
Clarification of the Intellectual Property Court
According to the results of the generalization of judicial practice, the Court of Intellectual Rights of Russia (CIP) in 2017 formulated general approaches to evidence obtained on the Internet, including Wikipedia.
The
CIP information sheet emphasizes that “information from the free content site (“ Wikipedia ”) is not considered to confirm the circumstances stated in it, since such information can be entered and edited by anyone, and therefore is not objective.”
Wherein:
- if the decision of the state body is based on a word whose meaning is set using Wikipedia, the courts should check the time of entry (placement) of the relevant information and match this date with the date, which is decisive in the particular case (for example, when assessing the legality of registration of a trademark - at the time of its priority) (see the CIP decision of 06/05/2016 No. SIP-614/2015, the decision of the CIP Presidium of September 19, 2016 in case No. SIP-93/2016).
- if a participant in a case refers to information posted on Wikipedia to substantiate his position, then the validation of the date of placement of such information or the fact of placing information on that date is made by the court only if there are objections from other persons involved in the case.
Wikipedia in courts of general jurisdiction
For the courts of general jurisdiction, so far there is no explanation regarding the use of Wikipedia, so the judges themselves determine under what conditions and in what matters it is appropriate. Courts of law, like arbitration courts, sometimes refer to Wikipedia to clarify the meaning of a concept. However, the interest of the courts in the online encyclopedia is not limited to this.
In the case
of the perpetual blocking of Rutracker.org (No. 3-0647 / 2015), the Moscow City Court also referred to Wikipedia, determining what Rutreker is and how many users are registered on this site. However, such a reference was of no value to substantiate the conclusions of the court and, most likely, was only of an informative nature. Rutreker was subsequently blocked.
Wikipedia can play its role in the case of privacy protection. In 2013, the Presnensky District Court of Moscow considered the case on the suit of the singer Elena Vaengi against the NTV television channel. The reason for the suit was the release of the program “Secret show business”, dedicated to the singer (“Elena Vaenga. Gypsy Million”). The telecast was not without the use of photographs of the star, so the plaintiff hoped that her image was used without permission, and this violated her rights to privacy and the image of a citizen. Elena Vaenga wanted to receive compensation from the television company, but the court determined the well-knownness of the singer with reference to Wikipedia, as well as the rating of Forbes magazine “50 stars - 2011”. The claims were denied, because the plaintiff could not prove that the images used in the television program and information about the singer’s life were not publicly distributed before the broadcast of this program.
Wikipedia in foreign processes
In other countries, Wikipedia has also gained popularity among the ministers of justice. Wikipedia itself has a dedicated
page . It lists the judicial decisions of different countries where Wikipedia is quoted either by the parties to the process or by the court itself.
In the United States since 2004, some courts
refer to information contained in the virtual encyclopedia. For example, the US District Court referred to Wikipedia in explaining the phenomenon of “butterfly effect”, other courts through Wikipedia defined such concepts as “domain name”, “tire code”, “history of mental disorders”, “scoliosis”, “Twitter” (Twitter), and also found out who such a rapper Ludacris (Ludacris).
In the US, there are courts that categorically refer to Wikipedia, considering it an unreliable source of data. In 2017, the Texas High Court issued an
interesting decision regarding the citation of Wikipedia. The case began with a lawsuit by Jeanay Rosenthal about libel against the online magazine D Magazine, which published the
article , accusing the plaintiff of fraud in receiving social benefits, and describing it throughout the article as the “Welfare Queen”. According to the English version of Wikipedia, the phrase “Queen of Social Security”, i.e.
Queen Welfare is a derogatory term used in the United States to refer to divorced, unmarried or widowed women who are allegedly abusing the social security benefits they receive through fraud and manipulation. The lower court, despite the diversity of other sources, referred in its decision to Wikipedia as the primary source for describing the term “Welfare Queen”, which significantly influences the general message of the article. The High Court of Texas considered that Wikipedia could be used as a starting point for research purposes or for some minor points in court decisions. The High Court pointed out that, nevertheless, Wikipedia cannot be an authoritative source on any issue in the case under review, the courts should be extremely careful in how they use the online library.
Conclusion
Internet sources are beginning to play an increasing role in the lives of people, not excluding lawsuits. Wikipedia is very user-friendly, it is a huge storehouse of constantly updated, up-to-date information, which puts it in an advantageous position compared to classical reference books that do not keep pace with the rapid development of languages and the emergence of new terms and expressions. For this reason, despite the flexibility of the content of Wikipedia, the courts are willing to use it to establish the content of those or other new concepts (especially slang, jargon), combining the electronic encyclopedia with other sources. Wikipedia has also been useful in cases where it is necessary to establish the level of fame of a particular person or event. Nevertheless, there is no centralized control over the quality of the content of absolutely all the pages of the online encyclopedia, besides Wikipedia is not subject to scientific reviewing. Therefore, when considering litigation and adjudication, the courts cautiously refer to the virtual encyclopedia, limited only by its use to clarify minor facts or in combination with other sources.
