[Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

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[Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
Chris writes:

> As I understand it, the "right to be forgotten" will only affect the
> discoverability of content, rather than existence of content.
>
> So if we rely on a source which says that person X did Y many years ago,
> and X succeeds in invoking their "right to be forgotten", then the source
> will no longer appear in search engine results. The source, whether offline
> or online, will continue to exist and will continue to be a valid reference.
>
> My understanding may well be wrong, and if there is anything that
> summarises this issue as it affects Wikimedians I would be really
> interested to read it.

Your understanding is essentially correct, as far as it goes. The ECJ
(aka "Curia") opinion makes clear that the decision applies to search
engines but not (yet) to the databases of source journals (such as The
New York Times or the Guardian).

But of course it can affect the work of Wikipedia editors and other
Wikimedians looking for online sources if search engine results can be
censored in this way. In addition, it seems possible that the ECJ
opinion can be understood to apply to Wikipedia itself, which, while
not a search engine, may qualify as a "controller" as that word is
defined under Article 2 of Directive 95/46 of the European Parliament
("on the protection of individuals with regard to the processing of
personal data and on the free movement of such data").  Look at these
relevant definitions from the text of the ECJ opinion:

------------

    Article 2 of Directive 95/46 states that ‘[f]or the purposes of
this Directive:

(a)      “personal data” shall mean any information relating to an
identified or identifiable natural person (“data subject”); an
identifiable person is one who can be identified, directly or
indirectly, in particular by reference to an identification number or
to one or more factors specific to his physical, physiological,
mental, economic, cultural or social identity;

(b)       “processing of personal data” (“processing”) shall mean any
operation or set of operations which is performed upon personal data,
whether or not by automatic means, such as collection, recording,
organisation, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or
otherwise making available, alignment or combination, blocking,
erasure or destruction;

...

(d)      “controller” shall mean the natural or legal person, public
authority, agency or any other body which alone or jointly with others
determines the purposes and means of the processing of personal data;
where the purposes and means of processing are determined by national
or Community laws or regulations, the controller or the specific
criteria for his nomination may be designated by national or Community
law;

...

    Article 9 of Directive 95/46, entitled ‘Processing of personal
data and freedom of expression’, provides:

‘Member States shall provide for exemptions or derogations from the
provisions of this Chapter, Chapter IV and Chapter VI for the
processing of personal data carried out solely for journalistic
purposes or the purpose of artistic or literary expression only if
they are necessary to reconcile the right to privacy with the rules
governing freedom of expression.’

---------------

(Note that "processing of personal data" need not be done "by
automatic means." I read this to mean that Wikipedia editors
themselves may qualify as engaging in the "processing of personal
data." And the definition of "controller" expressly includes a
"natural ... person."

Assuming that Member States would assert jurisdiction over Wikipedia
(even though Wikipedia is hosted in the United States), could
Wikipedia articles be defended under the "solely for journalistic
purposes or the purpose of artistic or literary expression" language
of Article 9 of the Directive? That language doesn't strike me as a
very good fit for what Wikipedia does.

The English-language version of the full text of the opinion is here:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=95716
.

Ilario writes:

> But I think that something will change for users writing content (no more
> references in the main search engine) but also to discover copyright
> infringements.

And, possibly much more than that, as I suggest above.

Not impossibly, and assuming EU can establish jurisdiction of
Wikimedia Foundation or its agents or its volunteer editors, this
particular news story might have turned out differently:
http://www.nytimes.com/2009/11/13/us/13wiki.html?_r=0 .


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Chris Keating-2
On Fri, May 30, 2014 at 6:39 PM, Mike Godwin <[hidden email]> wrote:

> Chris writes:
>
> > As I understand it, the "right to be forgotten" will only affect the
> > discoverability of content, rather than existence of content.
> >
> > So if we rely on a source which says that person X did Y many years ago,
> > and X succeeds in invoking their "right to be forgotten", then the source
> > will no longer appear in search engine results. The source, whether
> offline
> > or online, will continue to exist and will continue to be a valid
> reference.
> >
> > My understanding may well be wrong, and if there is anything that
> > summarises this issue as it affects Wikimedians I would be really
> > interested to read it.
>
> Your understanding is essentially correct, as far as it goes. The ECJ
> (aka "Curia") opinion makes clear that the decision applies to search
> engines but not (yet) to the databases of source journals (such as The
> New York Times or the Guardian).
>
> But of course it can affect the work of Wikipedia editors and other
> Wikimedians looking for online sources if search engine results can be
> censored in this way. In addition, it seems possible that the ECJ
> opinion can be understood to apply to Wikipedia itself, which, while
> not a search engine, may qualify as a "controller" as that word is
> defined under Article 2 of Directive 95/46 of the European Parliament
> ("on the protection of individuals with regard to the processing of
> personal data and on the free movement of such data").  Look at these
> relevant definitions from the text of the ECJ opinion:
>
>
Hi Mike - thanks for the reply! Having looked and thought about it in a bit
more depth, I am pretty sure that you're right and that a case can be made
this precedent will apply to Wikimedians and possibly the Wikimedia
Foundation.

Whether that is something we need to worry about is another issue, but this
is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post
contains anything you don't already know but it's a useful thought process
for me);

If as a private citizen in the EU you construct a card-file index of
newspaper cuttings (or any other kind of database) including personal
details about a group of individuals, you are becoming both a "data
processor" and "data controller".

This judgement determines that Google's indexing of information about an
individual is covered by the rules that apply to data processors and
controllers. Google argued that their work was not covered, a) because they
did not know the contents of their own data (it all being generated
algorithmically) and b) because the personal data was entirely intermingled
with non-personal data.

It would be hard to argue that a Wikipedia article  or Wikidata entry does
not represent personal data in a retrievable form.

It would be an interesting question whether the Wikimedia Foundation or
individual Wikimedians were data processors and controllers. The court
would have to decide who was the "controller" of this data, if indeed there
was one. I imagine they would be hard to persuade that the data had no
"controller", and easy to persuade that the WMF's provision of technical
infrastructure which interprets the data and present it represented
"control" in the sense of 2d. Wikimedians might however jointly be
"controllers" if they played a particularly important role.

I don't believe Wikipedia could be a data controller as it has no legal
personality, and legal personality is quite difficult to acquire when you
set out to avoid acquiring it.

 However, even if my line of thinking is correct, I think Wikipedia's
existing policies wouldn't need much amendment. Processing of personal data
is allowed so long as it complies with the various duties on data
processors, e.g. being accurate and processed for a legitimate purpose.

We have quite a clear purpose in processing data - the provision of an
encyclopedia. We already limit ourselves to truthful and accurate coverage
of data subjects (e.g. the BLP policy); and we already have something
analogous to a public-interest test as to whether we process this data at
all (the notability principle).

Regards,

Chris






> ------------
>
>     Article 2 of Directive 95/46 states that ‘[f]or the purposes of
> this Directive:
>
> (a)      “personal data” shall mean any information relating to an
> identified or identifiable natural person (“data subject”); an
> identifiable person is one who can be identified, directly or
> indirectly, in particular by reference to an identification number or
> to one or more factors specific to his physical, physiological,
> mental, economic, cultural or social identity;
>
> (b)       “processing of personal data” (“processing”) shall mean any
> operation or set of operations which is performed upon personal data,
> whether or not by automatic means, such as collection, recording,
> organisation, storage, adaptation or alteration, retrieval,
> consultation, use, disclosure by transmission, dissemination or
> otherwise making available, alignment or combination, blocking,
> erasure or destruction;
>
> ...
>
> (d)      “controller” shall mean the natural or legal person, public
> authority, agency or any other body which alone or jointly with others
> determines the purposes and means of the processing of personal data;
> where the purposes and means of processing are determined by national
> or Community laws or regulations, the controller or the specific
> criteria for his nomination may be designated by national or Community
> law;
>
> ...
>
>     Article 9 of Directive 95/46, entitled ‘Processing of personal
> data and freedom of expression’, provides:
>
> ‘Member States shall provide for exemptions or derogations from the
> provisions of this Chapter, Chapter IV and Chapter VI for the
> processing of personal data carried out solely for journalistic
> purposes or the purpose of artistic or literary expression only if
> they are necessary to reconcile the right to privacy with the rules
> governing freedom of expression.’
>
> ---------------
>
> (Note that "processing of personal data" need not be done "by
> automatic means." I read this to mean that Wikipedia editors
> themselves may qualify as engaging in the "processing of personal
> data." And the definition of "controller" expressly includes a
> "natural ... person."
>
> Assuming that Member States would assert jurisdiction over Wikipedia
> (even though Wikipedia is hosted in the United States), could
> Wikipedia articles be defended under the "solely for journalistic
> purposes or the purpose of artistic or literary expression" language
> of Article 9 of the Directive? That language doesn't strike me as a
> very good fit for what Wikipedia does.
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
Chris writes:

> If as a private citizen in the EU you construct a card-file index of
> newspaper cuttings (or any other kind of database) including personal
> details about a group of individuals, you are becoming both a "data
> processor" and "data controller".

I think that's the plain meaning of the ECJ decision.

> It would be hard to argue that a Wikipedia article  or Wikidata entry does
> not represent personal data in a retrievable form.

I agree here too.

> It would be an interesting question whether the Wikimedia Foundation or
> individual Wikimedians were data processors and controllers. The court would
> have to decide who was the "controller" of this data, if indeed there was
> one.

My intuition is that a European court, and certainly the ECJ, would be
likely to hold either or both WMF and individual Wikimedians liable.
No need to choose between one or the other, given the breadth of the
definitions.

> I don't believe Wikipedia could be a data controller as it has no legal
> personality, and legal personality is quite difficult to acquire when you
> set out to avoid acquiring it.

On this point I must disagree.

>  However, even if my line of thinking is correct, I think Wikipedia's
> existing policies wouldn't need much amendment. Processing of personal data
> is allowed so long as it complies with the various duties on data
> processors, e.g. being accurate and processed for a legitimate purpose.

Accuracy is no defense! That's one of the chief lessons of the ECJ
opinion. And building an encyclopedia is not named as "a legitimate
purpose" by the ECJ. (If it were, all Google would have to do is
revive its own experiment in encyclopedias, Knol, but this time give
it a compatible Creative Commons license.)

> We have quite a clear purpose in processing data - the provision of an
> encyclopedia. We already limit ourselves to truthful and accurate coverage
> of data subjects (e.g. the BLP policy); and we already have something
> analogous to a public-interest test as to whether we process this data at
> all (the notability principle).

Google has a clear purpose too, and it was no defense. Plus, there is
a public-interest argument in favor of eschewing the erasure of true,
accurate public data that happens to be old.

Plus, it must be said, Wikimedia Foundation is not well-positioned to
litigate these issues again and again in Europe.


--Mike



On Mon, Jun 2, 2014 at 4:02 PM, Chris Keating
<[hidden email]> wrote:

>
>
>
> On Fri, May 30, 2014 at 6:39 PM, Mike Godwin <[hidden email]> wrote:
>>
>> Chris writes:
>>
>> > As I understand it, the "right to be forgotten" will only affect the
>> > discoverability of content, rather than existence of content.
>> >
>> > So if we rely on a source which says that person X did Y many years ago,
>> > and X succeeds in invoking their "right to be forgotten", then the
>> > source
>> > will no longer appear in search engine results. The source, whether
>> > offline
>> > or online, will continue to exist and will continue to be a valid
>> > reference.
>> >
>> > My understanding may well be wrong, and if there is anything that
>> > summarises this issue as it affects Wikimedians I would be really
>> > interested to read it.
>>
>> Your understanding is essentially correct, as far as it goes. The ECJ
>> (aka "Curia") opinion makes clear that the decision applies to search
>> engines but not (yet) to the databases of source journals (such as The
>> New York Times or the Guardian).
>>
>> But of course it can affect the work of Wikipedia editors and other
>> Wikimedians looking for online sources if search engine results can be
>> censored in this way. In addition, it seems possible that the ECJ
>> opinion can be understood to apply to Wikipedia itself, which, while
>> not a search engine, may qualify as a "controller" as that word is
>> defined under Article 2 of Directive 95/46 of the European Parliament
>> ("on the protection of individuals with regard to the processing of
>> personal data and on the free movement of such data").  Look at these
>> relevant definitions from the text of the ECJ opinion:
>>
>
> Hi Mike - thanks for the reply! Having looked and thought about it in a bit
> more depth, I am pretty sure that you're right and that a case can be made
> this precedent will apply to Wikimedians and possibly the Wikimedia
> Foundation.
>
> Whether that is something we need to worry about is another issue, but this
> is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post
> contains anything you don't already know but it's a useful thought process
> for me);
>
> If as a private citizen in the EU you construct a card-file index of
> newspaper cuttings (or any other kind of database) including personal
> details about a group of individuals, you are becoming both a "data
> processor" and "data controller".
>
> This judgement determines that Google's indexing of information about an
> individual is covered by the rules that apply to data processors and
> controllers. Google argued that their work was not covered, a) because they
> did not know the contents of their own data (it all being generated
> algorithmically) and b) because the personal data was entirely intermingled
> with non-personal data.
>
> It would be hard to argue that a Wikipedia article  or Wikidata entry does
> not represent personal data in a retrievable form.
>
> It would be an interesting question whether the Wikimedia Foundation or
> individual Wikimedians were data processors and controllers. The court would
> have to decide who was the "controller" of this data, if indeed there was
> one. I imagine they would be hard to persuade that the data had no
> "controller", and easy to persuade that the WMF's provision of technical
> infrastructure which interprets the data and present it represented
> "control" in the sense of 2d. Wikimedians might however jointly be
> "controllers" if they played a particularly important role.
>
> I don't believe Wikipedia could be a data controller as it has no legal
> personality, and legal personality is quite difficult to acquire when you
> set out to avoid acquiring it.
>
>  However, even if my line of thinking is correct, I think Wikipedia's
> existing policies wouldn't need much amendment. Processing of personal data
> is allowed so long as it complies with the various duties on data
> processors, e.g. being accurate and processed for a legitimate purpose.
>
> We have quite a clear purpose in processing data - the provision of an
> encyclopedia. We already limit ourselves to truthful and accurate coverage
> of data subjects (e.g. the BLP policy); and we already have something
> analogous to a public-interest test as to whether we process this data at
> all (the notability principle).
>
> Regards,
>
> Chris
>
>
>
>
>
>>
>> ------------
>>
>>     Article 2 of Directive 95/46 states that ‘[f]or the purposes of
>> this Directive:
>>
>> (a)      “personal data” shall mean any information relating to an
>> identified or identifiable natural person (“data subject”); an
>> identifiable person is one who can be identified, directly or
>> indirectly, in particular by reference to an identification number or
>> to one or more factors specific to his physical, physiological,
>> mental, economic, cultural or social identity;
>>
>> (b)       “processing of personal data” (“processing”) shall mean any
>> operation or set of operations which is performed upon personal data,
>> whether or not by automatic means, such as collection, recording,
>> organisation, storage, adaptation or alteration, retrieval,
>> consultation, use, disclosure by transmission, dissemination or
>> otherwise making available, alignment or combination, blocking,
>> erasure or destruction;
>>
>> ...
>>
>> (d)      “controller” shall mean the natural or legal person, public
>> authority, agency or any other body which alone or jointly with others
>> determines the purposes and means of the processing of personal data;
>> where the purposes and means of processing are determined by national
>> or Community laws or regulations, the controller or the specific
>> criteria for his nomination may be designated by national or Community
>> law;
>>
>> ...
>>
>>     Article 9 of Directive 95/46, entitled ‘Processing of personal
>> data and freedom of expression’, provides:
>>
>> ‘Member States shall provide for exemptions or derogations from the
>> provisions of this Chapter, Chapter IV and Chapter VI for the
>> processing of personal data carried out solely for journalistic
>> purposes or the purpose of artistic or literary expression only if
>> they are necessary to reconcile the right to privacy with the rules
>> governing freedom of expression.’
>>
>> ---------------
>>
>> (Note that "processing of personal data" need not be done "by
>> automatic means." I read this to mean that Wikipedia editors
>> themselves may qualify as engaging in the "processing of personal
>> data." And the definition of "controller" expressly includes a
>> "natural ... person."
>>
>> Assuming that Member States would assert jurisdiction over Wikipedia
>> (even though Wikipedia is hosted in the United States), could
>> Wikipedia articles be defended under the "solely for journalistic
>> purposes or the purpose of artistic or literary expression" language
>> of Article 9 of the Directive? That language doesn't strike me as a
>> very good fit for what Wikipedia does.
>
>

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Todd Allen
Would WMF, being in the US, need to worry about this to any greater degree
than it worries about, say, Chinese publishing restrictions, or UK
"superinjunctions"?
On Jun 2, 2014 2:15 PM, "Mike Godwin" <[hidden email]> wrote:

> Chris writes:
>
> > If as a private citizen in the EU you construct a card-file index of
> > newspaper cuttings (or any other kind of database) including personal
> > details about a group of individuals, you are becoming both a "data
> > processor" and "data controller".
>
> I think that's the plain meaning of the ECJ decision.
>
> > It would be hard to argue that a Wikipedia article  or Wikidata entry
> does
> > not represent personal data in a retrievable form.
>
> I agree here too.
>
> > It would be an interesting question whether the Wikimedia Foundation or
> > individual Wikimedians were data processors and controllers. The court
> would
> > have to decide who was the "controller" of this data, if indeed there was
> > one.
>
> My intuition is that a European court, and certainly the ECJ, would be
> likely to hold either or both WMF and individual Wikimedians liable.
> No need to choose between one or the other, given the breadth of the
> definitions.
>
> > I don't believe Wikipedia could be a data controller as it has no legal
> > personality, and legal personality is quite difficult to acquire when you
> > set out to avoid acquiring it.
>
> On this point I must disagree.
>
> >  However, even if my line of thinking is correct, I think Wikipedia's
> > existing policies wouldn't need much amendment. Processing of personal
> data
> > is allowed so long as it complies with the various duties on data
> > processors, e.g. being accurate and processed for a legitimate purpose.
>
> Accuracy is no defense! That's one of the chief lessons of the ECJ
> opinion. And building an encyclopedia is not named as "a legitimate
> purpose" by the ECJ. (If it were, all Google would have to do is
> revive its own experiment in encyclopedias, Knol, but this time give
> it a compatible Creative Commons license.)
>
> > We have quite a clear purpose in processing data - the provision of an
> > encyclopedia. We already limit ourselves to truthful and accurate
> coverage
> > of data subjects (e.g. the BLP policy); and we already have something
> > analogous to a public-interest test as to whether we process this data at
> > all (the notability principle).
>
> Google has a clear purpose too, and it was no defense. Plus, there is
> a public-interest argument in favor of eschewing the erasure of true,
> accurate public data that happens to be old.
>
> Plus, it must be said, Wikimedia Foundation is not well-positioned to
> litigate these issues again and again in Europe.
>
>
> --Mike
>
>
>
> On Mon, Jun 2, 2014 at 4:02 PM, Chris Keating
> <[hidden email]> wrote:
> >
> >
> >
> > On Fri, May 30, 2014 at 6:39 PM, Mike Godwin <[hidden email]> wrote:
> >>
> >> Chris writes:
> >>
> >> > As I understand it, the "right to be forgotten" will only affect the
> >> > discoverability of content, rather than existence of content.
> >> >
> >> > So if we rely on a source which says that person X did Y many years
> ago,
> >> > and X succeeds in invoking their "right to be forgotten", then the
> >> > source
> >> > will no longer appear in search engine results. The source, whether
> >> > offline
> >> > or online, will continue to exist and will continue to be a valid
> >> > reference.
> >> >
> >> > My understanding may well be wrong, and if there is anything that
> >> > summarises this issue as it affects Wikimedians I would be really
> >> > interested to read it.
> >>
> >> Your understanding is essentially correct, as far as it goes. The ECJ
> >> (aka "Curia") opinion makes clear that the decision applies to search
> >> engines but not (yet) to the databases of source journals (such as The
> >> New York Times or the Guardian).
> >>
> >> But of course it can affect the work of Wikipedia editors and other
> >> Wikimedians looking for online sources if search engine results can be
> >> censored in this way. In addition, it seems possible that the ECJ
> >> opinion can be understood to apply to Wikipedia itself, which, while
> >> not a search engine, may qualify as a "controller" as that word is
> >> defined under Article 2 of Directive 95/46 of the European Parliament
> >> ("on the protection of individuals with regard to the processing of
> >> personal data and on the free movement of such data").  Look at these
> >> relevant definitions from the text of the ECJ opinion:
> >>
> >
> > Hi Mike - thanks for the reply! Having looked and thought about it in a
> bit
> > more depth, I am pretty sure that you're right and that a case can be
> made
> > this precedent will apply to Wikimedians and possibly the Wikimedia
> > Foundation.
> >
> > Whether that is something we need to worry about is another issue, but
> this
> > is my reasoning (obviously I'm not a lawyer, etc, and I doubt this post
> > contains anything you don't already know but it's a useful thought
> process
> > for me);
> >
> > If as a private citizen in the EU you construct a card-file index of
> > newspaper cuttings (or any other kind of database) including personal
> > details about a group of individuals, you are becoming both a "data
> > processor" and "data controller".
> >
> > This judgement determines that Google's indexing of information about an
> > individual is covered by the rules that apply to data processors and
> > controllers. Google argued that their work was not covered, a) because
> they
> > did not know the contents of their own data (it all being generated
> > algorithmically) and b) because the personal data was entirely
> intermingled
> > with non-personal data.
> >
> > It would be hard to argue that a Wikipedia article  or Wikidata entry
> does
> > not represent personal data in a retrievable form.
> >
> > It would be an interesting question whether the Wikimedia Foundation or
> > individual Wikimedians were data processors and controllers. The court
> would
> > have to decide who was the "controller" of this data, if indeed there was
> > one. I imagine they would be hard to persuade that the data had no
> > "controller", and easy to persuade that the WMF's provision of technical
> > infrastructure which interprets the data and present it represented
> > "control" in the sense of 2d. Wikimedians might however jointly be
> > "controllers" if they played a particularly important role.
> >
> > I don't believe Wikipedia could be a data controller as it has no legal
> > personality, and legal personality is quite difficult to acquire when you
> > set out to avoid acquiring it.
> >
> >  However, even if my line of thinking is correct, I think Wikipedia's
> > existing policies wouldn't need much amendment. Processing of personal
> data
> > is allowed so long as it complies with the various duties on data
> > processors, e.g. being accurate and processed for a legitimate purpose.
> >
> > We have quite a clear purpose in processing data - the provision of an
> > encyclopedia. We already limit ourselves to truthful and accurate
> coverage
> > of data subjects (e.g. the BLP policy); and we already have something
> > analogous to a public-interest test as to whether we process this data at
> > all (the notability principle).
> >
> > Regards,
> >
> > Chris
> >
> >
> >
> >
> >
> >>
> >> ------------
> >>
> >>     Article 2 of Directive 95/46 states that ‘[f]or the purposes of
> >> this Directive:
> >>
> >> (a)      “personal data” shall mean any information relating to an
> >> identified or identifiable natural person (“data subject”); an
> >> identifiable person is one who can be identified, directly or
> >> indirectly, in particular by reference to an identification number or
> >> to one or more factors specific to his physical, physiological,
> >> mental, economic, cultural or social identity;
> >>
> >> (b)       “processing of personal data” (“processing”) shall mean any
> >> operation or set of operations which is performed upon personal data,
> >> whether or not by automatic means, such as collection, recording,
> >> organisation, storage, adaptation or alteration, retrieval,
> >> consultation, use, disclosure by transmission, dissemination or
> >> otherwise making available, alignment or combination, blocking,
> >> erasure or destruction;
> >>
> >> ...
> >>
> >> (d)      “controller” shall mean the natural or legal person, public
> >> authority, agency or any other body which alone or jointly with others
> >> determines the purposes and means of the processing of personal data;
> >> where the purposes and means of processing are determined by national
> >> or Community laws or regulations, the controller or the specific
> >> criteria for his nomination may be designated by national or Community
> >> law;
> >>
> >> ...
> >>
> >>     Article 9 of Directive 95/46, entitled ‘Processing of personal
> >> data and freedom of expression’, provides:
> >>
> >> ‘Member States shall provide for exemptions or derogations from the
> >> provisions of this Chapter, Chapter IV and Chapter VI for the
> >> processing of personal data carried out solely for journalistic
> >> purposes or the purpose of artistic or literary expression only if
> >> they are necessary to reconcile the right to privacy with the rules
> >> governing freedom of expression.’
> >>
> >> ---------------
> >>
> >> (Note that "processing of personal data" need not be done "by
> >> automatic means." I read this to mean that Wikipedia editors
> >> themselves may qualify as engaging in the "processing of personal
> >> data." And the definition of "controller" expressly includes a
> >> "natural ... person."
> >>
> >> Assuming that Member States would assert jurisdiction over Wikipedia
> >> (even though Wikipedia is hosted in the United States), could
> >> Wikipedia articles be defended under the "solely for journalistic
> >> purposes or the purpose of artistic or literary expression" language
> >> of Article 9 of the Directive? That language doesn't strike me as a
> >> very good fit for what Wikipedia does.
> >
> >
>
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Chris Keating-2
In reply to this post by Mike Godwin-2
>
>
> > I don't believe Wikipedia could be a data controller as it has no legal
> > personality, and legal personality is quite difficult to acquire when you
> > set out to avoid acquiring it.
>
> On this point I must disagree.
>

I'd be interested to hear why :-)

I think also though that if editors are potentially liable, then so are
legal persons that engage in similar activity. Say for instance a European
Wikimedia chapter engaged with a national archive to update Wikidata with a
few million records, including some on living people. Arguably both of them
could be acting as data controllers on those records for the rest of the
duration of Wikidata. Hmmmmm.....


>
> >  However, even if my line of thinking is correct, I think Wikipedia's
> > existing policies wouldn't need much amendment. Processing of personal
> data
> > is allowed so long as it complies with the various duties on data
> > processors, e.g. being accurate and processed for a legitimate purpose.
>
> Accuracy is no defense! That's one of the chief lessons of the ECJ
> opinion. And building an encyclopedia is not named as "a legitimate
> purpose" by the ECJ. (If it were, all Google would have to do is
> revive its own experiment in encyclopedias, Knol, but this time give
> it a compatible Creative Commons license.)
>
> > We have quite a clear purpose in processing data - the provision of an
> > encyclopedia. We already limit ourselves to truthful and accurate
> coverage
> > of data subjects (e.g. the BLP policy); and we already have something
> > analogous to a public-interest test as to whether we process this data at
> > all (the notability principle).
>
> Google has a clear purpose too, and it was no defense. Plus, there is
> a public-interest argument in favor of eschewing the erasure of true,
> accurate public data that happens to be old.
>

This is all the case, but the decision makes it clear that this is a
question in striking a balance between the interests of the data subject
(the "right to be forgotten", i.e. the ability to enjoy a private life),
and the interests of others. This derives from Article 7(f) of the original
directive.

It also makes it clear that this balance may be struck in different places
in different situations; for instance at Paragraph 81, talking about the
balance of public interest in people who have taken a role in public
life[1] who are arguably the sort we cover in our articles.

I'd agree that there is no clarity about what would happen if someone
pursued this course of action with Wikipedia, but there are many
differences between our case and Google's...

Chris


[1]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=95716
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

???
In reply to this post by Mike Godwin-2
On 02/06/2014 21:14, Mike Godwin wrote:
>
> Google has a clear purpose too, and it was no defense. Plus, there is
> a public-interest argument in favor of eschewing the erasure of true,
> accurate public data that happens to be old.
>

There is nothing in the judgement about erasing "true, acaccurate public
data that happens to be old." The judgement is about collecting,
collating, and processing it, in away that is an invasion of privacy.

There is no public interest in how many time celeb X got a detention at
school for not doing their homework at junior high. There is no public
interest in whether umbilical cord blood was taken from child Y or not.



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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mark
On 6/2/14, 10:55 PM, ??? wrote:
> There is no public interest in how many time celeb X got a detention
> at school for not doing their homework at junior high.

Isn't that the kind of information you would in fact expect to find in a
biography of any kind of public figure? If I were reading a biography of
Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else
prominent enough to have a book-length biography written about them, I
would typically expect it to include a chapter about their childhood,
and that would normally include some details of how they did at school,
if such details are known. That's precisely the kind of information that
biographers search for when putting together a comprehensive biography.

-Mark


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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
In reply to this post by Todd Allen
On Mon, Jun 2, 2014 at 4:19 PM, Todd Allen <[hidden email]> wrote:
> Would WMF, being in the US, need to worry about this to any greater degree
> than it worries about, say, Chinese publishing restrictions, or UK
> "superinjunctions"?

First, WMF operates globally, and while I took pains as general
counsel, just as the WMF legal team does now, to limit exposure around
the world, it is a mistake to suppose that jurisdictional protections
are invariably impenetrable. See my discussion here on YouTube:
https://www.youtube.com/watch?v=wqQOvxyj66w .

Second, the ECJ decision can be used to go after editors individually,
or organized WMF-affiliated groups.


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
In reply to this post by Chris Keating-2
On Mon, Jun 2, 2014 at 4:48 PM, Chris Keating
<[hidden email]> wrote:
>>
>> > I don't believe Wikipedia could be a data controller as it has no legal
>> > personality, and legal personality is quite difficult to acquire when
>> > you
>> > set out to avoid acquiring it.
>>
>> On this point I must disagree.

WMF is a legal entity. The editors are legal entities. The affiliated
groups are legal entities. And there is nothing in the EU directive
that requires what you are calling "a legal personality."

> I think also though that if editors are potentially liable, then so are
> legal persons that engage in similar activity. Say for instance a European
> Wikimedia chapter engaged with a national archive to update Wikidata with a
> few million records, including some on living people. Arguably both of them
> could be acting as data controllers on those records for the rest of the
> duration of Wikidata. Hmmmmm.....

Now you are beginning to glimpse the scope of the ECJ opinion.

>> Google has a clear purpose too, and it was no defense. Plus, there is
>> a public-interest argument in favor of eschewing the erasure of true,
>> accurate public data that happens to be old.
>
>
> This is all the case, but the decision makes it clear that this is a
> question in striking a balance between the interests of the data subject
> (the "right to be forgotten", i.e. the ability to enjoy a private life), and
> the interests of others. This derives from Article 7(f) of the original
> directive.

Not exactly. The case "makes it clear" that it is *asserting* that it
is striking a balance, but when you read the specific language as a
lawyer, it's clear that, regardless of what the ECJ says, there is no
limiting principle regarding the scope of application.

> It also makes it clear that this balance may be struck in different places
> in different situations; for instance at Paragraph 81, talking about the
> balance of public interest in people who have taken a role in public life[1]
> who are arguably the sort we cover in our articles.

There's that "makes it clear" language again. Do you really suppose
Wikipedia information about individuals is limited to those who have
(presumably voluntarily) "taken a role in public life"?

When did this person --
https://en.wikipedia.org/wiki/Dannielynn_Birkhead_paternity_case --
volunteer to take a role in public life?

> I'd agree that there is no clarity about what would happen if someone
> pursued this course of action with Wikipedia, but there are many differences
> between our case and Google's...

Not really, if you read the precise language of the decision.
Certainly, every other lawyer I've asked about this agrees with me
that Wikipedia fits the definition of "controller" under the directive
and the ECJ decision.


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Nathan Awrich
In reply to this post by Mike Godwin-2
On Tue, Jun 3, 2014 at 9:37 AM, Mike Godwin <[hidden email]> wrote:

> On Mon, Jun 2, 2014 at 4:19 PM, Todd Allen <[hidden email]> wrote:
> > Would WMF, being in the US, need to worry about this to any greater
> degree
> > than it worries about, say, Chinese publishing restrictions, or UK
> > "superinjunctions"?
>
> First, WMF operates globally, and while I took pains as general
> counsel, just as the WMF legal team does now, to limit exposure around
> the world, it is a mistake to suppose that jurisdictional protections
> are invariably impenetrable. See my discussion here on YouTube:
> https://www.youtube.com/watch?v=wqQOvxyj66w .
>
> Second, the ECJ decision can be used to go after editors individually,
> or organized WMF-affiliated groups.



Does the ECJ need to establish jurisdiction over Wikimedia or specific
users (presumably only those users directly involved in creating or
curating the content in dispute)? We've seen in some situations in the past
(e.g. with the DCRI and frwp) where governments have targeted users within
their jurisdiction to demand information or actions. Could that happen
here?

Should the WMF choose to refuse to implement the directive, could the ECJ
pursue penalties against the income stream of donations, or grant funding
disbursed to WMF-related entities in the EU? Could the WMF seek exemptions
under Article 9, or would we run into jurisdictional risks by doing that?

In Article 23, it reads "The controller may be exempted from this
liability, in whole or in part, if he proves that he is not responsible for
the event giving rise to the damage." Does this, perhaps in conjunction
with the Section 230 status of the WMF, provide some cover?

CC'd to the advocacy advisory list.

~Nathan
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
On Tue, Jun 3, 2014 at 10:37 AM, Nathan <[hidden email]> wrote:

> Does the ECJ need to establish jurisdiction over Wikimedia or specific users
> (presumably only those users directly involved in creating or curating the
> content in dispute)? We've seen in some situations in the past (e.g. with
> the DCRI and frwp) where governments have targeted users within their
> jurisdiction to demand information or actions. Could that happen here?

Clearly, the EU doesn't need to establish jurisdiction over EU
citizens who happen to be Wikimedians, since it already has it. The
same is true with regard to affiliated organizations in the EU.  Plus,
and this is something that bears repeating, there is no particular
reason to think that the EU might not claim it has jurisdiction over
Wikimedia Foundation, even if it might have a hard time imposing it.

Even claims of jurisdiction without merit can be problematic, as I
explain here; http://youtu.be/wqQOvxyj66w.

> Should the WMF choose to refuse to implement the directive, could the ECJ
> pursue penalties against the income stream of donations, or grant funding
> disbursed to WMF-related entities in the EU? Could the WMF seek exemptions
> under Article 9, or would we run into jurisdictional risks by doing that?

I wouldn't think any funds given to, or disbursed from, WMF in the EU
would be immune.

> In Article 23, it reads "The controller may be exempted from this liability,
> in whole or in part, if he proves that he is not responsible for the event
> giving rise to the damage." Does this, perhaps in conjunction with the
> Section 230 status of the WMF, provide some cover?

Article 23's language would not be interpreted as providing
Section-230-like protection, if I read EU law correctly.


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

???
In reply to this post by Mark
On 03/06/2014 12:53, Mark wrote:

> On 6/2/14, 10:55 PM, ??? wrote:
>> There is no public interest in how many time celeb X got a detention
>> at school for not doing their homework at junior high.
>
> Isn't that the kind of information you would in fact expect to find in a
> biography of any kind of public figure? If I were reading a biography of
> Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else
> prominent enough to have a book-length biography written about them, I
> would typically expect it to include a chapter about their childhood,
> and that would normally include some details of how they did at school,
> if such details are known. That's precisely the kind of information that
> biographers search for when putting together a comprehensive biography.
>

WP is not creating books, and it is mostly NOT creating articles about
major figures of the 20th century. It is not constructing comprehensive
biographies. It is mostly creating short articles about people of slight
notability from scant sources, where perhaps their school detention is
the one of the few things extant about them.



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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Nathan Awrich
On Tue, Jun 3, 2014 at 5:23 PM, ??? <[hidden email]> wrote:

> On 03/06/2014 12:53, Mark wrote:
>
>> On 6/2/14, 10:55 PM, ??? wrote:
>>
>>> There is no public interest in how many time celeb X got a detention
>>> at school for not doing their homework at junior high.
>>>
>>
>> Isn't that the kind of information you would in fact expect to find in a
>> biography of any kind of public figure? If I were reading a biography of
>> Winston Churchill or Louis Armstrong or Neil Armstrong or anyone else
>> prominent enough to have a book-length biography written about them, I
>> would typically expect it to include a chapter about their childhood,
>> and that would normally include some details of how they did at school,
>> if such details are known. That's precisely the kind of information that
>> biographers search for when putting together a comprehensive biography.
>>
>>
> WP is not creating books, and it is mostly NOT creating articles about
> major figures of the 20th century. It is not constructing comprehensive
> biographies. It is mostly creating short articles about people of slight
> notability from scant sources, where perhaps their school detention is the
> one of the few things extant about them.


Interesting. Can you link me to a biography where a school detention is the
main feature of the article?
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

???
On 03/06/2014 22:35, Nathan wrote:
>
> Interesting. Can you link me to a biography where a school detention is the
> main feature of the article?

How about this 8 yo?
https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography

What about these other kids?
https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life
https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain
https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino
https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant

...




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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Nathan Awrich
On Tue, Jun 3, 2014 at 6:54 PM, ??? <[hidden email]> wrote:

> On 03/06/2014 22:35, Nathan wrote:
>
>>
>> Interesting. Can you link me to a biography where a school detention is
>> the
>> main feature of the article?
>>
>
> How about this 8 yo?
> https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography
>
> What about these other kids?
> https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life
> https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain
> https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino
> https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant
>
> ...
>
>
Thanks! I was unable to locate any mention of school detentions in any of
the articles you linked.

I was able to determine that one is the heir to the throne of Belgium,
another the granddaughter of the Queen of England, another the daughter of
the soon-to-be King of Spain, one will likely become Emperor of Japan and
lastly Prince Emmanuel is the son of the King of Belgium and the younger
sibling of the eventual Queen.

So I do not yet see your point, which I think is that WP processes trivial
personal information about non-notable individuals in whom few people have
any interest. Perhaps you neglected to include the articles you mentioned
where school detentions are one of the few things extant about the
subjects?
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

???
On 04/06/2014 00:06, Nathan wrote:

> On Tue, Jun 3, 2014 at 6:54 PM, ??? <[hidden email]> wrote:
>
>> On 03/06/2014 22:35, Nathan wrote:
>>
>>>
>>> Interesting. Can you link me to a biography where a school detention is
>>> the
>>> main feature of the article?
>>>
>>
>> How about this 8 yo?
>> https://en.wikipedia.org/wiki/Prince_Emmanuel_of_Belgium#Biography
>>
>> What about these other kids?
>> https://en.wikipedia.org/wiki/Lady_Louise_Windsor#Early_life
>> https://en.wikipedia.org/wiki/Infanta_Sof%C3%ADa_of_Spain
>> https://en.wikipedia.org/wiki/Prince_Hisahito_of_Akishino
>> https://en.wikipedia.org/wiki/Princess_Elisabeth,_Duchess_of_Brabant
>>
>> ...
>>
>>
> Thanks! I was unable to locate any mention of school detentions in any of
> the articles you linked.
>
> I was able to determine that one is the heir to the throne of Belgium,
> another the granddaughter of the Queen of England, another the daughter of
> the soon-to-be King of Spain, one will likely become Emperor of Japan and
> lastly Prince Emmanuel is the son of the King of Belgium and the younger
> sibling of the eventual Queen.
>
> So I do not yet see your point, which I think is that WP processes trivial
> personal information about non-notable individuals in whom few people have
> any interest. Perhaps you neglected to include the articles you mentioned
> where school detentions are one of the few things extant about the
> subjects?


These are pre-teen kids, the information that is being collated is
trivia and intrusive. Fell and broke arm, taken out of main stream
education, went to a Science Museum, able to change his own clothes,
went to see a musical.

And if you can't see that this is equivalent to "didn't do hos homework"
all one can say is Oh dear!



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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
In reply to this post by Mike Godwin-2
??? writes:

>On 02/06/2014 21:14, Mike Godwin wrote:
>>
>> Google has a clear purpose too, and it was no defense. Plus, there is
>> a public-interest argument in favor of eschewing the erasure of true,
>> accurate public data that happens to be old.
>>
>
>There is nothing in the judgement about erasing "true, acaccurate public
>data that happens to be old." The judgement is about collecting,
>collating, and processing it, in away that is an invasion of privacy.

This is an incorrect characterization of the opinion. The ECJ said the
right "to be forgotten" applies when the data aggregated "appear to be
inadequate, irrelevant or no longer relevant, or excessive in relation
to the purpose for which they were processed and in light of the time
that has elapsed." This does not mean "invasion of privacy," which is
a term generally applied to information that has not previously been
published. By its nature, Google is not publishing information that
has never been published. -- it indexes and enables the retrieval of
information that has been previously published.

Whatever "the right to be forgotten" may turn out to be, it's not
about publication of previously unpublished information. Ergo, it's
not about "invasion of privacy," broadly speaking. The opinion makes
clear that one can publish true, accurate, already-published
information and nevertheless be compelled to erase it by an individual
or entity invoking a right "to be forgotten."


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Chris Keating-2
>
> Whatever "the right to be forgotten" may turn out to be, it's not
> about publication of previously unpublished information. Ergo, it's
> not about "invasion of privacy," broadly speaking. The opinion makes
> clear that one can publish true, accurate, already-published
> information and nevertheless be compelled to erase it by an individual
> or entity invoking a right "to be forgotten."
>
>
I think there's a philosophical issue about "privacy" here. As far as I can
see the ECJ interprets "privacy" as "the right to enjoy a private life",
and sees any party holding a significant amount of data about a private
individual without good reason as a potential infringement on that right,
regardless of whether that information was previously published or not.

There is a narrower interpretation of "privacy" as "the right of private
individuals to control what information about them is published", which I
think is implied by your post.

From my own point of view and at the philosophical rather than practical
level, I think the ECJ's approach is better suited to what "privacy" means
these days.

Chris



> --Mike
>
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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Mike Godwin-2
Chris writes:

> I think there's a philosophical issue about "privacy" here. As far as I can
> see the ECJ interprets "privacy" as "the right to enjoy a private life", and
> sees any party holding a significant amount of data about a private
> individual without good reason as a potential infringement on that right,
> regardless of whether that information was previously published or not.

But the ECJ opinion does not impose upon Google the obligation to
erase all the information about the complainant. The underlying facts
of the case (always a good idea to consult these!) relate to an order
from the Spanish Data Protection Authority to remove links to a
newspaper article  relating to the auction of complainant's house, 16
years ago, to recover social-security debts.

In general, possession of real estate, and public auctions of
real-estate by the government, are both public matters. Indeed, you
likely wouldn't want to live in a society in which they are not.

Furthermore, the newspaper itself is expressly not obligated to censor
its own databases, which adds the extra added benefit of philosophical
inconsistency.


--Mike

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Re: [Wikimedia-l] Applying the Right to Be Forgotten to Wikipedia (Was Re: Right to be forgotten)

Brad Jorsch (Anomie)
In reply to this post by Mike Godwin-2
(note any comments here are entirely my own personal opinion)

On Wed, Jun 4, 2014 at 11:23 AM, Mike Godwin <[hidden email]> wrote:

> The ECJ said the
> right "to be forgotten" applies when the data aggregated "appear to be
> inadequate, irrelevant or no longer relevant, or excessive in relation
> to the purpose for which they were processed and in light of the time
> that has elapsed."


That begs the question as to what is "the purpose for which they were
processed". Even in this case with Google and the Spanish guy and some old
repossession: What's the purpose of Google's processing the data? To
satisfy search requests. Is the old repossession relevant to the search for
the guy's name? It depends on why someone is doing the searching, maybe it
is and maybe it isn't.

And is Google having to remove all record of the repossession from their
index, or just in connection with the guy's name? What if someone searches
for "Mario Costeja González repossession", is the old repossession relevant
then? What about "Mario Costeja González 1998", since the repossession
occurred in 1998? How many years until he can whine at Google that the top
results for "Mario Costeja González" are now all about this stupid lawsuit?

What if it had been some other Mario Costeja González (maybe one living
outside Europe) who had the repossession? Would the ECJ ruling still
require Google to remove the information based on the complaint by *this*
Mario Costeja González?
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