On July 10, 2015 the Court of Rome issued a very important decision in favor of Wikimedia Foundation (the organization managing the online encyclopedia Wikipedia), represented by Hogan Lovells, in relation to the Foundation’s lack of liability for the content created by its users.
The Court has confirmed the Foundation’s role as hosting provider as well as its neutral role in relation to the hosted content, recognizing the procedure provided by Wikimedia to all Wikipedia’s contributors (the so called Wiki model) as the correct method to follow for amending Wikipedia pages which, on the contrary, cannot be modified asking directly to the hosting provider.
1. Factual background
In March 2011, MOIGE, the Italian Parents Movement, filed a defamation claim with the Court of Rome against Wikimedia Foundation, seeking the Court to order Wikimedia the removal, from MOIGE’s Wikipedia Italian page, of some statements concerning MOIGE’s views on sensitive and controversial social topics and which allegedly damaged the Movement’s image, name, and reputation.
The Movement, also relying on an alleged “right to be forgotten”, accused Wikimedia of defamation and sought Wikipedia to pay for damages amounting to EUR 200,000.
Wikimedia Foundation’s reply was based on 4 main arguments:
Wikimedia Foundation is a hosting provider and as such, it is not liable for the content hosted and not created;
the statements challenged by MOIGE were not defamatory;
due to the peculiarity of the online encyclopedia, a notice to the hosting provider is not enough to have the content removed or amended: MOIGE should have attempted to amend the statements through the dedicated tools (following the Wiki model)
right to be forgotten was inapplicable to this case.
2. Decision of the court
After a four-year proceeding, the Court of Rome ruled in favor of the Wikimedia Foundation, completely rejecting the claim filed by the plaintiff in all its grounds.
2.1 Wikimedia’s role as hosting provider
Firstly, the Court has specified Wikimedia can be considered as a hosting provider under European and Italian Law and as such benefits from the general liability exemption set forth by the E-Commerce Directive. Wikimedia Foundation, in its quality as hosting provider “has no duty to ensure that no illicit acts which may offend others’ reputation are carried out”, as it “provides a service which is based on the freedom of its users to draft the pages of the encyclopedia”, freedom which is “counterbalanced by the possibility for every user to amend or remove any content”.
2.2 Neutrality with respect to content
The Court stressed the neutrality which characterizes a hosting provider in relation to the content posted or created by its users. According to the Court, such neutrality applies not only to that content which has never been flagged as inappropriate, but it also applies once the hosting provider has been put on notice and has the possibility to intervene. The Court specifies that the duty to intervene according to the E-Commerce Directive is a different matter from the neutrality which characterizes a hosting provider such as Wikimedia Foundation: neutrality safeguards the nature of the encyclopedia, which is managed directly by the users beyond the provider’s control.
Furthermore, the Court recognizes that “not even the ownership of the servers and the web domain wikipedia.org can be considered as elements capable to modify the nature of the defendant’s activity, which is found to be completely extraneous from the organization and selection of the contents published”.
On the same grounds, the Court rejects also the accusation for the crime of libel moved by MOIGE against Wikimedia.
2.3 The effectiveness of Wikipedia’s model
Another important victory for Wikimedia Foundation is the recognition by the Court of the effectiveness of Wikipedia’s model: as observed by the Court, “the page of the encyclopaedia dedicated to the MOIGE … has been modified many times since the start of the proceedings until today, … and this provides evidence of the described functioning of the encyclopaedia (which follows the so-called ‘wiki’ model) and of the suitability of the system developed by the [Wikimedia Foundation] to ‘self-correct’ pages through the amendments made by users”.
3. Importance of the decision
As reported throughout the article, this decision is very important since it recognizes Wikimedia Foundation’s role as hosting provider as well as its lack of liability in relation to the hosted content, emphasizing on the good functioning of the method provided by the Foundation in order to keep the content of the encyclopedia updated and appropriate. Stressing on the neutrality principle characterizing Wikimedia Foundation as hosting provider, the Court of Rome has issued a decision which, as reported by Wikimedia itself, has to be considered “a victory for all Wikipedians and for the freedom of speech on the Internet”.
Wikimedia Foundation was represented by Marco Berliri, Massimiliano Masnada, and Marta Staccioli from Hogan Lovells’ Rome office.