The Swiss Federal Supreme Court — at least its 2nd Social Security Law Division (II. Sozialversicherungsrechtliche Abteilung) — has started to quote Wikipedia in 2007:

• In a decision from May 3, 2007 (I 871/06) the Court relied on Wikipedia’s description of volleyball moves in order to assess whether the appellant who played volleyball was unable to work due to a disability in his arms.
• In a decision from January 18, 2008 (K 136/06, published as FCD 134 V 72, cons. 3.1) the Court took the German Wikipedia entry for “Autoscooter” (German-English pidgin for bumper car) as evidence that collisions in bumper cars are almost innocuous, which led it to the conclusion that losing a tooth in a bumper car is an accident under federal social security law.
• In a decision from January 7, 2008 (9C_286/2007) the Court referred to an expert opinion which stated that hyperthyreosis morbus Basedow causes depression, adding that a Wikipedia printout which had been submitted by the appellant stated the same.

These three judgments have been drafted by different clerks of the same department of the Federal Supreme Court that decides matters of social security. In this area of law, legal proceedings are not entirely driven by the parties, but the courts may to a certain extent collect evidence as well. Civil and criminal legal proceedings being totally different in this respect, the probative force of Wikipedia entries in these field still remains unclear.

Luckily, there’s Google’s cache, and all information still seems to be there: http://www.google.com/search?hl=en&q=site%3Awww.jcvp-sg.ch&btnG=Search Hence, I recommended that my friends settle with their provider for natural restitution, i.e. him clicking through Google’s cache and restoring the web content.

The project is awesome because the software will allow users to benchmark the performance of their computers against their peers.  (See here for more information.)

My wish list for Herdict is short–it has only one item if I don’t count the best wishes for the Herdict team:

It would be awesome if Herdict could also periodically measure the available internet bandwidth. 

Here in Switzerland, there’s been a great deal of discussion concerning broadband subscribers who get much less bandwidth than they subscribed for, and I don’t think the situation is much different elsewhere–especially in the U.S. where the average bandwidth is lower than in Central Europe. One of the country’s telcos, Sunrise, already offers a “ADSL speedometer” on its website.

However, this service is inferior to Herdict in several ways:

• First, the company that offers it is not neutral by any measure;
• Second, users cannot benchmark test results;
• Third, it’s a web service, and each testing requires user activity.

The problem with lower-than-promised bandwidth is now, as I perceive it, an information problem–and also a problem of collective action.  Herdict can solve both of them:

• With Herdict, it would be easy for anyone to get good data about the actual bandwidth of his or her connection.  (The software might even include analyses as to the average bandwidth depending on the daytime, cross-provider comparisons, etc.)
• In cases where a provider doesn’t live up to its promises, users would see that they’re not alone.  Consumer organizations and the media, both being already interested in the issue, would be more than happy to use and publicize that information.
• Maybe even the OECD would be interested in high-level aggregates of the so-produced information in order to refine their broadband statistics.
• At least in countries that allow class actions, providers would be under a credible threat of legal action and could not hide behind the best efforts clauses in their Terms & Conditions any longer.
• All of this would eventually prompt providers to improve their services and increase quality competition in the broadband sector.  (In Switzerland, at least, there is little price competition since the physical landlines are owned by only two companies, Swisscom and Cablecom, in most parts of the country.)

Of course, where the potential impact of a software on a market is so high and much is at stake for big market players, the prevention of manipulations of all sorts deserves a great deal of attention.

P.S. The release version of Herdict should come in multiple languages, otherwise only a small percentage of users could use it outside the anglophone countries.

At least in Switzerland, doctors cannot invoke the medical privilege if they are being prosecuted themselves.  This rule, however, is based on the assumption that a patient is the victim and thus happy to waive his or her right to confidentiality.  Yet, doping is structurally different from that: like corruption, doping does not involve a direct victim, and it necessarily requires the clandestine collaboration of two actors–official and individual in the first case, doctor and athlete in the second.

The common legal doctrine on the medical privilege in Switzerland seems unfit to cope with this situation:  in an investigation against an athlete, his or her physician may (and in some cantons even has to) refuse to testify or to submit documents.  In an investigation against the doctor himself, most relevant documents–and arguably those that deliver a “smoking gun” to the prosecution–relate to the doctor’s “patient”, the athlete, and may therefore not be used either.  Arguing that the doctor did not learn the relevant facts (and create the documents) in connection with his profession won’t be convincing because the treatment of athletes, even if it involves performance-enhancing substances, can hardly be considered as non-medical.

Taken together, this would make prosecutions for doping virtually impossible. If one does not want to accept this, one could insert a clause into the anti-doping statute that lifts the medical privilege with respect to the relationship between the doctor and the athlete.  This would be a rather strong shift of the balance between the interest in effective criminal prosecution and privacy.  Is this shift justified given the fact that doping isn’t a very serious crime?

The medical privilege is based on the fundamental importance of the ability of individuals to seek medical treatment if they need it, without having to fear that they could end in prison because of what the doctor learns from the consultation.  In cases of doping, however, the doctor-patient relationship is (in most cases) an integral part of the criminal activity, like in the case of corruption, as I mentioned.  Where the relationship itself is a problem, the invocation of the duty of confidence in the dress of the medical privilege would amount to an abuse of rights. (Thought strongly inspired by the work f J.N. Druey, of course!) 

For the same reasons, a possible argument that the medical privilege is upheld even for the most serious crimes, and that the state is willing to take the risk of having to acquit a guilty person for lack of evidence because the privilege is upheld, isn’t very strong: One could say that just because the seriousness of the crime and the evidentiary problems are irrelevant, the fact that doping is less serious a crime should be irrelevant, too.  Plus, the state takes the evidentiary risks posed by the medical privilege for the benefit of the health of individuals.  It doesn’t have to take them if a given medical treatment is not intended to cure or alleviate a disease or an injury at all.

Therefore, I think lifting the medical privilege in doping cases is justified, even under the law as it stands.  In order to avoid costly litigation over this question, however, I would opt for a statutory exception to the privilege.

A French consumer association sued the producers of Mulholland Drive because their DVDs were copy-protected and because there was no appropriate notice on the wrapping.

[T]he Court … decided on 4 April 2007 that the private copy of a certain work is not a right but “a legal exception to the principle of copying the entire work without the consent of the copyright holder”. Therefore a private copy is not a right, but an exception and no one can start a legal action based on an exception.

In Hohfeldian terms, private coyping is a privilege for consumers, not a right that would be associated with a duty on the part of rightsholders.

The decision doesn’t come as a big surprise, although many European scholars have put forward the argument–or at least examined it at great length–that private copying could actually be more than a privilege.

The report goes on:

However, the Court of Appeal indicated that this exception can be used as a reasonable defence in the case of alleged counterfeit, if the other legal conditions are fulfilled.

From the perspective of law enforcement, the “right” to make private copies confers subjects immunity from liability for counterfeit.

By the way: The opt-in private copy exception to DRM protection under the EUCD (Art. 6(4)2) doesn’t make the privilege a right, but rather limits consumers’ liability for DRM circumvention.

My (very unimaginative) answer would have been:

• compensation and amends
• a publication of the judgment

A couple of days ago, my favorite Swiss newspaper, the Neue Zürcher Zeitung, featured a report on a “recent” decision by the Interamerican Court of Human Rights in such a case:  In 1992, 41 members of the Peruvian rebel/terrorist group “Sendero Luminoso” lost their lives in prison, and the court concluded that they were executed illegally by state organs.  (The official verson of Fujimori’s government at that time was that the prisoners were killed in fightings following a mutiny …)

The judgment isn’t as recent as I would have thougt, it dates from November 29, 2006.  In return, it is massive in length (almost 150 pages), and, personally, I find the remedies granted by the Court very innovative.

Here they are (from p. 114-118):

• First, the Court declared that the Peruvian government had violated various provisions of the Interamerican Convention on Human Rights, including the right to life, the right to physical integrity, and judicial guarantees.  These declarations were in turn declared to constitute a form of reparation per se.
• Second, the Court obliged Peru to pay compensation to the survivors (between USD 20,000 and 60,000, which is 3 to 9 times the per capita GDP of Peru).
• Third, Peru has to publish certain parts of the judgment, including the sections dealing with the abuses proven before the Court.

So far, so unspectacular. But here comes the interesting part:

• Peru must immediately complete the investigations against the authors of the human rights abuses and ensure that they are punished in accordance with national law.
• The government must also immediately search for the remains of the victims, turn them over to the victims, and cover eventual funeral costs.
• The government is also ordered to hold a public ceremony of recognition of responsibility, attended by government representatives, and in presence of the survivors.
• Further, the names of the victims are to be inscribed in the national memorial “El Ojo que Llora”, which is dedicated to the victims of violence, in an official ceremony.
• From the day of proclamation of the judgment, the government further needs to provide adequate medical treatment and psychological assistance to the survivors.
• Last but not least, the government must arrange permanent education in human rights for the members of intelligence services, the army and national police, as well as for public prosecutors and judges (!).

This list of remedies is truly impressive, and it’s hard to imagine many more things a government could do to remedy past human rights violations.  Of course, one could argue that court-ordered expressions of regret are not much good for the victims–similar to Kant’s saying that obeying the law is not morally “valuable”.  But on the other hand, the ceremonies ordered by the Court might also be looked at by the survivors as symbols of their victory against the government and therefore as symbols of justice.

Certainly, grave human rights violations as in this case are irreparable.  Yet, justice is restorable.  In this light, a combination of restorative, preventive, and symbolic remedies as taken by the Interamerican Court of Human Rights seems to be the “best second-best” solution available.

1. Jim Moore’s video on YouTube.
2. 10,000+ articles/posts on the story that will eventually go the way of everything on the web–to the Internet Archive.
3. A loss of reputation on the part of Viacom (allbeit certainly limited both in terms of time and audience).

I’m not quite sure whether Viacom was aware of this reputation risk when it decided to send cease-and-desist letters to Youtube. But the big echo this case has caused hopefully will change that and thus lead to a more targeted use of cease-and-desist letters under the DMCA. And the risk isn’t likely to decrease in the future, as the community is organizing around takedowns.

By the way, it would be interesting to know which risk a corporate compliance risk manager would quantify as higher: the risk of having to pay compensation under DMCA § 512(f) (see latter part of this post by J.P.) or the reputation risk associated with sending unjustified cease-and-desist letters.

In the paper, I argue that it is better to strengthen social norms through appropriate procedures than to replace them by substantive rules aimed at protecting emotions.

In Switzerland, Article 261 of the Criminal Code states: “Whosoever openly and invidiously insults or derides the beliefs of others in matters of faith, in particular the belief in God, […], will be subject to fine or a prison sentence of up to 6 months.” Similar provisions can be found in the laws of many other countries on the European continent. Their purpose is to protect public order by shielding the faithful from undue encroachment.

The nature of emotions, and especially the nature of religious sentiments, sets boundaries to the protection of emotions via substantive law: On the one hand, a legal rule aiming to protect emotions cannot—and ought not to—be entirely subjective; on the other hand, objectifying emotions necessarily involves their valuation. Yet, emotions are protected by law to a certain extent precisely because they are subjective and inaccessible to the valuation of others, be it another person or the judiciary. Therefore, objectifying emotions to a certain extent contradicts the very purpose of their legal protection.

A year ago, the publication of a dozen cartoons of the prophet Mohammed by a Danish newspaper caused a huge stir in Western Europe and in the Middle East, and to a lesser extent, as I understand, also in North America. In the light of Article 261 of the Criminal Code, the publication of the cartoons is not punishable, despite the fact that many Muslims, and by far not only the zealots, felt deeply offended by them. Obviously, the sensitivity of members of different religions of the world as to the ridiculing of the founders of their religion greatly varies.

The law, in contrast, cannot take that into consideration for various reasons, and protect each belief in a different manner, according to their degree of sensitivity. As a consequence, the protection of religious sentiments does not depend on the intensity of an encroachment, but rather—and arguably to a high degree—on the cultural background of the judiciary. In these cases, the law becomes ineffective, as it cannot fulfill its function of ensuring public order anymore.

In my paper I suggest that Article 261 should be repealed.

Instead, I argue that the provision should be replaced by a procedural mechanism which to some extent parallels existing concepts of criminal mediation, and which I chose to name a palaver*: Whoever nowadays would file a criminal complaint under Article 261 of the Criminal Code should be enabled to initiate a legal proceeding with the author of the statement concerned, in which he or she can confront that person and discuss the issue. (I am skipping the details of the procedure.)

The palaver could lead to either an apology or heated argument, ore something in between, depending on the good faith of the parties. Either result is a good one because in both cases, negative emotions caused by the concerned statement can be effectively canalized within the procedure and thus absorbed. As media coverage of the palaver can be expected particularly in cases where an offensive statement and the reactions thereto have received high publicity, the palaver will also give those people some satisfaction who do not take part in the proceeding but were nevertheless offended.

Last but not least, the remedy hopefully will have a preventive effect: Whoever is going to make a defamatory statement on religious matters in the public, i.e. via more or less unidirectional media, has the prospect of being confronted with his or her statements in a face to face situation. Since most humans tend to be more moderate and tactful in the presence of a person they know they might offend, odds are that they behave the same way when they speak or write in public. In other words, odds are that the remedy I suggest leverages the social norms governing face to face conversations in a way that they are respected when people speak through the media, instead of overriding them, as the substantive legal norm of Art. 261 of the Criminal Code does.

*) After a proposition by J.N. Druey. Palavers are known as important dispute resolution mechanisms in archaic societies.
—————-
Update: Following a suggestion by my friend and colleague James Thurman, I replaced “religious emotions” by the more precise circumscription of the uncircumscribable, “religious sentiments.”

Mention the Tiananmen square massacre and express your support for a free, independent Tibet. Don’t forget to link to such subversive organizations as the Open Net Initiative, Human Rights Watch, the Berkman Center, and the BBC.

Then, it will be difficult for a Chinese plaintiff to prove that your blog has actually been read in China, which doesn’t prevent him from suing you, though.  But suing you for what you have posted on your blog is also more difficult for a lawyer if he cannot access your blog from his country, so you’ll be safe.