2014 Marcianüs v. Davinescu et al

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Din el Cort dels Edilicieux




21 Jul 2014/XXXV

Brief of the ruling

Opinion of the Court delivered by
Magistrate Txec dal Nordselva


Over the course of this trial, counselors have presented several legal theories to the court and the court will endeavor to respond to what it believes are the most pertinent in this case.

In the complaint, the plaintiff asserts "The Talossa Wiki is presented as an official government web project beginning with the announcement of its launch on Witt (issued under government seal) to its management by the Minister of Stuff. S:reu Davinescu rightly states that Talossan Privacy Laws do not allow citizens or former citizens the right to amend public records which relate to them. However, we contend that the Talossa Wiki is not a public record...The Talossan Wiki was not created by statute.”

The defense raised what it believes were applicable statutory laws that, while not specifically authorizing the creation of a Wiki, do grant the government the authority to do so in general terms. Specifically, the defense presented Org.XII.6 and statutes Lex.D.2.7, Lex.D.2.10, Lex.A.21. The court will in this ruling examine each of these laws and determine their applicability to this case.

Org.XII.6 states "The Minister of Stuff shall prepare, at the behest of the Cosâ, the Seneschál, or on his own initiative, informative texts about the Kingdom of Talossa.” The court finds that this passage of the Organic Law does not specifically mention WIki’s but it does not specifically exclude them either. In fact, it is reasonable to assume that when the Organic Law was drafted this passage was kept reasonably broad to incorporate new technologies that could be seen as “informative texts.” This view of the Organic Law is further strengthened by Lex.A.21. in which is stated “ the Ziu hereby requires that any and all official or officially-sanctioned websites, social networking pages, online Embassies, and any other future form of Internet group be run by an assigned Ministry from the Prime Minister, assigned member of the government, or private citizens, when explicit permission is granted by the Prime Minister.” This statute was created by the 39th Cosa in April of 2009. Therefore, the court finds that under Org.XII.6. and Lex.A.21., the government does possess the necessary authority to create the Wiki and that any material present on the Wiki after April 2009 falls under this defined authority.

Lex.D.2.7. states "The Minister of Culture, heading the Ministry of Culture, who shall promote Talossan culture, including our national language, our musical and sporting heritage, our mythical Berber connections, and all of our other way cool quirks.” While the Wiki does reflect several aspects of national culture within its pages, the court does not find this statute to be applicable in this case.

Lex.D.2.10. reads "The Minister of Stuff, heading the Ministry of Stuff, which shall be responsible for the promotion of the Kingdom through public relations. The Ministrà del Sanavar da Talossa al Ultra-Fiôvân Folâs (Ministry of Stuff) shall dutifully ensure that the Kingdom and events therein are regularly publicized in any and all worldwide media, and shall produce and circulate on a regular basis a national publication for internal and external promotion of all things Talossan.” A wiki is an online database that may or not be public. The national wiki is public and has been cited by immigrants to Talossa as a factor in immigration. Therefore, the court finds this statute to be applicable as it acts as a form of public relations.

The court rules therefore that the government possesses the right to creation and maintenance of the Wiki.

The plaintiff raised the issue of an expectation of privacy and argued that the plaintiff possesses such a right. The court does not argue that any citizen of Talossa loses its right of privacy as it relates to the Wiki. However, in examining the right to privacy, the court must consider what the right to privacy means. In considering the right to privacy, the court used the following rubric to determine of privacy was violated in this case: 1. has the plaintiff’s identity been appropriated for the defendants benefit, 2., has the plaintiff been placed in a false light in the public eye, 3., have private facts about the plaintiff been publicly disclosed, and 4., has there been an unreasonable intrusion upon the seclusion or solitude of the plaintiff?

Test 1: Appropriating the plaintiff's identity for the defendant's benefit. The court cannot find any reason or evidence to support that the defendant has benefited in any way in any potential appropriation of the plaintiff’s identity. The plaintiff himself placed information about his identity on the Wiki. Additionally, nowhere is it mentioned the non-Talossan name of the plaintiff. Yet it must be reflected that the plaintiff himself put that information there. The plaintiff voluntarily uploaded his image and text about himself and consented to the Wiki’s privacy policies and copyright policies. He voluntarily waived his total control over this content and during the case he both stipulated and testified that these acts did in fact occur. The section entitled “Life Outside of Talossa” does however give biographical information but the plaintiff publicly made this information available voiding his expectation of privacy.

Test 2: Placing the plaintiff in a false light in the public eye. There is no question by the court that none of the material on the Wiki page place the plaintiff in a false light. All of the information posted by the plaintiff is assumed to be accurate and does not cause injury to the plaintiff. It is possible that material posted by other wiki editors could be incorrect, however the court finds no reason to suspect this as being the case.

Test 3: Publicly disclosing private facts about the plaintiff. It may be argued that the section “Life Outside of Talossa” could be publicly disclosed private facts. In general, one cannot have a reasonable expectation of privacy in things held out to the public. The plaintiff himself posted these details so this test is not met.

Test 4: Unreasonably intruding upon the seclusion or solitude of the plaintiff. The court believes that this test in and of itself is the most relevant in this case. Does the wiki unreasonably intrude upon the seclusion or solitude of the plaintiff? The court sees no example in the public Wiki page nor any of the edited pages that unreasonably intrude. It is without merit that these pages are preserved in any form that would create an intrusion. Had the plaintiff not consented to the Wiki entry content, this may have been the case. Nothing in this case rises to the level of intrusion or forces the plaintiff to put aside his solitude to engage in any fashion with any Talossan. In fact, it could be argued that this entire case and the requests for revision prior to it act as waivers to seclusion or solitude as the plaintiff.

The court finds that there has been no violation to the rights of privacy of the plaintiff.

The plaintiff repeatedly argued that their exists a “right to be forgotten” as specified under recent rulings by courts in the European Union. While the courts of Talossa do look to accepted principles of Anglo-American law, the Organic Law, Statutory Law and the Covenant of Rights and Freedoms trump any foreign laws. It cannot be argued that a very recent viewpoint on the right to be forgotten in one foreign court unilaterally applies to Talossa. In fact, the very ruling used as an argument in this case is specific in its application as it applies only to the Charter of the European Union. The court is free to disregard this European ruling because it is not, the the view of this court, part of accepted principles of Anglo-American law. Even if one were to argue that it could be, it must be understood that Talossa is not a signatory to the European Charter and is not bound by its laws.

In looking to our own Covenants of Rights and Freedoms, the court notes that the first right is applicable in this case. Specifically, "No law shall exist abridging the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication except in case of public order or morals. Censorship shall never exist in Talossa; every person may freely speak, write and publish his sentiments on all subjects, being responsible for the libelous abuse of that right.” This right uses several methods to determine if has been violated, including public order or morals and libelous abuse. The court can find no example in this case that points to a violation of public order or morals nor that of libelous abuse. The defendant, in preserving the Wiki, has not libeled the plaintiff nor has the plaintiff’s publicly posted material been an issue relating to public order or morality of Talossans.

The sixth covenant speaks to the issue of privacy "Liberty consists of any action which is not detrimental to others, and no right herein enumerated, or elsewhere recognised by the Cosâ, shall extend to anyone engaged in activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons through the pretended exercise of said right.” The court has already found that the privacy of the plaintiff was not violated. It further finds that their exists no injury to the plaintiff as relates to this covenant. Any injury that may have occurred was not at the behest of the defense.

The plaintiff raised support of its assertion in the right to be forgotten the concept of renunciation and that in so doing, all ties with the nation are severed to include the history of the renounced citizen and contracts entered into. The plaintiff used the example of divorce as an example. The court finds this line or reasoning to be insufficient. Throughout history, men and women have voluntarily left their nations and emigrated elsewhere or publicly disavowed their citizenship and yet these men and women may still be represented in the histories of their nations. Additionally, the mere act of a divorce does not nullify contracts or obligations entered into. Renunciation is not tantamount to divorce. Were renunciation an absolute that permanently removes someone from the memory of Talossa, our national history would consist only of those currently active citizens and many current citizens would not be citizens as several have at one time or another renounced and then re-immigrated.

Therefore, in light of the evidence and briefs submitted by both parties, this case is dismissed.

Statement by
Magistrate Txec dal Nordselva

Transcript of Case

The proceedings of the case can be found here.