The best-formatted version of this brief is the PDF (
Vito2.pdf (298.5 KB)), but I have included the text here for ease of reading.
In the matter of Viteu Marcianüs against the Rt. Hon. Alexandreu Davinescu, the Ministry of Stuff, and His Majesty’s Government, the defense respectfully submits the following brief laying out its case.
1. AuthorityCounsel for the plaintiff has argued that the contested material should be destroyed because it is of low quality and/or irrelevant. The defence has argued that this is mistaken in two ways:
a. The material is of great interest to the historical record, and material of this sort is vital to flesh out our cultural history.
b. The quality of the material has no bearing on its retention, regardless of quality, because there is no provision in law that permits a party to sue to overrule the editorial/managerial decisions of a website administrator on the basis of a content disagreement.
Opposing counsel has tangentially addressed the latter issue once more in their main brief, and the defense will revisit it in response.
The plaintiff’s arguments are unclear, but suggest that the government has exceeded its authority in the creation and administration of TalossaWiki to the extent that the website includes cultural or historical detail beyond the barest of facts. Opposing counsel states with absoluteness that “the wiki, and all government record, should be concerned with the transcription, storage and retrieval of factual events relevant to the nation,” because “the government has no compelling interest to retain information it thinks would be ‘interesting’ or things it thinks would be of amusement to its readers.”
This argument was also succinctly stated in the complaint: “While there exists no law requiring the Ministry of Stuff to remove the disputed content, we hold that the current law also does not support the Ministry of Stuff’s refusal to remove said content.”
The issues of this point, then, boil down to two inquiries:
- Does the government have the authority to create an informative website such as TalossaWiki and retain data ceded to it by contributors?
- To what extent does this cort have the authority to countermand government decisions in the administration of an informative website such as TalossaWiki?
To the first inquiry, we may answer in the affirmative with certainty. The government is given enormous scope where it concerns the media-driven promotion of the Kingdom of Talossa and the creation of informative texts. The Organic Law states with no qualification that
“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.” (Org.XII.6)
Statutes give even broader scope to the government’s authority to create informative media such as TalossaWiki, instructing that
“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” (Lex.D.2.7)
and
“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” (Lex.D.2.10).
Even more specifically, the Ziu has granted the Seneschal and any of his designated subordinates the power to create official websites or “any other future form of online group,” stating that
”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.” (Lex.A.21)
TalossaWiki is a website, a form of media, and an informational tool to preserve and promote Talossan heritage, culture, history, and “all of our other way cool quirks.” The government is given clear, broad Organic and statutory authority to create and maintain such websites. The plaintiff is incorrect to suggest that the government has no legal authority to create websites such as TalossaWiki; there is actually an Organic and statutory mandate to do so, providing the government with a compelling interest to preserve and promote facts about Talossan culture, heritage, history, and the like.
With the government’s authority to create informative websites such as TalossaWiki firmly established on Organic and statutory grounds, then, to what extent does this cort have the authority to countermand government decisions in the administration of an informative website such as TalossaWiki?
It should be made clear here that the defense does not mean to say that TalossaWiki is immune to actions of this cort, but rather that this cort has no jurisdiction to intervene in this particular matter. To put it simply, the government is the arbiter of state websites, and has full discretion to create, maintain, design, or delete the information on those websites. A disagreement over content only rises to this cort’s notice to the extent that the disputed content is in violation of the law or a party’s rights, not when the dispute concerns whether or not the disputed content is worth retaining.
The plaintiff has asserted through his counsel that no one should be interested in the culture and history of the Kingdom of Talossa to which the plaintiff contributed, as exemplified in the podcast and coloring book the plaintiff created during his time as a citizen. The plaintiff thinks it is no longer important, and opposing counsel has argued that “once petitioner ceased to be a citizen of the realm, the relevance of his podcast or his reasoning for leaving a particular party dissipated.” The government disagrees, and because the government has been given Organic and statutory authority to make such decisions, this cort cannot overturn the government’s decision unless the plaintiff’s rights have been violated or another law has been broken. There is no statute allowing the plaintiff to sue based on editorial disagreement.
We may more easily untangle this aspect of the argument if we consider items that are personally unrelated to the plaintiff. Would the plaintiff be able to sue if he disagreed with the font used by TalossaWiki, asking that the cort overrule the government’s design choices? Certainly not, unless those choices infringed on the law in some fashion (such as if the government chose Comic Sans, and so committed a crime against humanity).
There is thus no foundation for this aspect of the plaintiff’s case: the quality of the disputed material or the plaintiff’s opinion of its cultural and historical worth are immaterial, since the authority to make such determinations resides solely in the hands of the government. If the people disagree in the manner in which the government makes those determinations, then the people will cast their vote for a more accommodating government. This is the plaintiff’s demanded “recourse and remedy,” if they are unsatisfied with the existing dispute process, as in the case of many government programs.
It should also be noted that an enormous amount of material has already been voluntarily removed by the government, contrary to opposing counsel’s claims that the government has refused to accommodate it. Upon request, the government went to considerable lengths to expunge a great deal of personal information which it judged to be of no value, striving to arrive at some suitable middle ground between the full article and the obliterated terse note that the plaintiff requested. The plaintiff may still be unsatisfied, but he cannot justly claim that his requests have been ignored.
2. Contractual DisputeOpposing counsel presents an argument by analogy, stating that citizenship is like marriage in some ways, therefore the end of citizenship should be resolved the same way the end of a marriage is resolved.
“Defendant notes that the Petitioner was not compelled to upload any content to the Wiki. This is true. Neither is a married person compelled to buy a home, contribute to a retirement account, have children, or purchase a plethora of joint assets. That does not eliminate the fact that these assets are contested at the time of a divorce.
Like a situation of divorce, petitioner made contributions to the wiki while a full citizen who, presumably, intended to remain a citizen into perpetuity. Those circumstances changed.
...
The defendant cites the licensing agreement. However, married couples are bound by a lifetime vow. This vow is revocable by the courts as circumstances dictate. The failure of a marriage does not mean that those entering a marriage are insincere in their initial commitment. Rather, the court determines that circumstances have merely shifted and warrant a reappraisal of the marital arrangement.
Petitioner entered into the licensing agreement when he was a citizen of the Kingdom who actively participated in Kingdom affairs. Pursuant to his Organic rights, he terminated that citizenship in a manner not dissimilar to a divorce. Like a married couple facing divorce, this warrants a reappraisal of the previously agreed upon status. “
This argument, in essence, suggests that all contracts and agreements into which a citizen enters may become null and void upon that citizen’s renunciation of his citizenship. The plaintiff has dissolved his ties from an unwilling Kingdom of Talossa - does this dissolve all agreements into which the plaintiff entered while a citizen?
We should first note that the inductive logic of this argument is heavily flawed. As anyone who has been through a divorce can attest, no obligations and agreements are nullified by divorce. A couple that owns a house together is still responsible for the mortgage, even if they split up - they must meet that obligation somehow, or lose the house. Banks are unsympathetic to the argument that the mortgage agreement was signed while the couple was married and so the contract is nullified by divorce. A retirement account and other assets likewise remain binding; you must pay tax penalties if you withdraw from your 401(k) early, even if you need the funds for a downpayment on a new divorcee’s apartment. Pleas that circumstances “warrant a reappraisal of the previously agreed upon status” will attain little result.
Neither is there, in Talossan law, any basis on which to assert that the loss of citizenship might somehow dissolve a copyright agreement. The plaintiff has certainly not demonstrated any such law or principle. An analogy is insufficient, since a mere comparison has no force of law.
The plaintiff has stipulated that he voluntarily ceded his rights to the disputed material to the government. By contributing to the website and sending his material to be published, he “irrevocably consented to the display, copying, reuse or editing of your information, edits and entries, with or without attribution.” He cannot change his mind, simply because he has made the poor decision to leave the Kingdom of Talossa.
The inadequacy of this argument is further emphasized by a moment’s consideration of the contrary. If renunciation dissolved contracts, then contracts would have precious little strength. It would be a major but fool-proof way to evade any seriously burdensome contract that a Talossan wished to escape. This cort should not create a unilateral way to dissolve contracts.
3. A New “Right to Be Forgotten”Opposing counsel has also argued that the plaintiff has a “right to be forgotten,” citing a recent decision in the European Union. This argument is flawed in two ways:
a. The decision is limited to search engines and their collation of results, and does not compel any website to “forget” its content.
b. Google v Agencia Española de Protección de Datos, Mario Costeja González is a recent decision by a European Union court, and bases this “right to be forgotten” specifically on rights found in the European Union Charter. The Kingdom of Talossa does not subscribe to the European Union Charter, and a decision that relies on Articles 7 and 8 of that Charter has no applicability to this dispute. There has never been a “right to be forgotten” in Talossan law, and this cort should not create new rights out of whole cloth.
To the first point, Google v Agencia Española de Protección de Datos, Mario Costeja González has no bearing on content pages, as might be found on TalossaWiki. The purported “right to be forgotten” applies only to search engines. Indeed, the decision is so wholly inappropriate to these proceedings that it is immediately apparent why opposing counsel quoted only part of a single sentence in his arguments, striving to obfuscate the actual principles involved.
The court’s press release (http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf) sums the matter most effectively, declaring that “an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.” In the case, an individual sued both a provider of content (a prominent Spanish publishing house) and a search engine (Google), asking to have material removed from a content page and the search results removed, respectively. The court wholly and rightly rejected the claim against the publisher, but upheld the claim against Google, and proceeded to consider when and how a search engine should allow a given search result to drop from its listings or be erased.
Examining the actual findings and judgment of the court, there is nowhere any language which would imply that this ruling would apply to any other agencies beyond search engines, which were adjudicated “data processors” in the ruling and determined to be responsible for the data they processed. This is why opposing counsel himself quotes the press release (in whole: “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed.”) but omits the rest of the passage (indeed, omits the first half of the sentence). when presented in entirety, it illustrates the extent of this ruling from the European Court of Justice.
Finally, in response to the question whether the directive enables the data subject to request that links to web pages be removed from such a list of results on the grounds that he wishes the information appearing on those pages relating to him personally to be ‘forgotten’ after a certain time, the Court holds that, if it is found, following a request by the data subject, that the inclusion of those links in the list is, at this point in time, incompatible with the directive, the links and information in the list of results must be erased. The Court observes in this regard that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where, having regard to all the circumstances of the case, the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed. The Court adds that, when appraising such a request made by the data subject in order to oppose the processing carried out by the operator of a search engine, it should in particular be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results that is displayed following a search made on the basis of his name. If that is the case, the links to web pages containing that information must be removed from that list of results, unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information when such a search is made.
For further evidence, we may look to the official “Fact Sheet” (http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf) regarded the case (emphasis theirs):
On the “Right to be Forgotten” : Individuals have the right - under certain conditions - to ask search engines to remove links with personal information about them. This applies where the information is
inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing (para 93 of the ruling). The court found that in this particular case the interference with a person’s right to data protection could not be justified merely by the economic interest of the search engine. At the same time, the Court explicitly clarified that the
right to be forgotten is not absolute but will always need to be balanced against other fundamental rights, such as the freedom of expression and of the media (para 85 of the ruling). A
case-by-case assessment is needed considering the type of information in question, its sensitivity for the individual’s private life and the interest of the public in having access to that information. The role the person requesting the deletion plays in public life might also be relevant.
This judgment and the purported “right to be forgotten” can have no bearing on these proceedings. They do not extend to the point of requiring the owner of a website to delete material that someone wishes to be forgotten, despite the quaint name and opposing counsel’s elegant circumlocution.
To the second point, this decision bases the “right to be forgotten” entirely on the Charter of the European Union. This is evident from the central point in the judgment itself, in the discussion over Directive 95/46 (a provision governing the behavior of data processors) where the court outlines how the legitimate interests of data processing (by Google) must be balanced against the subject’s rights from Articles 7 and 8.
This provision permits the processing of personal data where it is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject — in particular his right to privacy with respect to the processing of personal data — which require protection under Article 1(1) of the directive. Application of Article 7(f) thus necessitates a balancing of the opposing rights and interests concerned, in the context of which account must be taken of the significance of the data subject’s rights arising from Articles 7 and 8 of the Charter.
Articles 7 and 8 of the Charter of the European Union are as follows:
Everyone has the right to respect for his or her private and family life, home and communications.
and
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
There is nothing wrong with these Articles, or with the Charter of the European Union, or with the European Union itself. However, the Kingdom of Talossa is not a member of the European Union, and nothing in our Organic Law resembles either of these Articles.
While it is common in our small system to look to international law for guidance, particularly when it comes to much-traveled and well-worn ideas in American and British law, and our justices are directed to “issue court orders or injunctions according to the generally accepted principles of Anglo-American law,” this is a very recent - a few months old! - and controversial decision in a European Union court based on rights found only in the European Union Charter. It is not helpful for guidance, much less some manner of binding precedent that solidifies a brand-new “right to be forgotten” in the Kingdom of Talossa.
4. Right to PrivacyThe plaintiff has argued through his counsel that his right to privacy is paramount, and accordingly, even though he has no rights or control to it, this information should be destroyed because it intrudes on his right to privacy.
Defendant asserts that, because the petitioner uploaded information to a Wiki, he has no right to privacy. This is absurd. Petitioner also maintains a Facebook account and walks down public streets (where third parties are free to record his image without his permission). Defendant treats the right to privacy as a static right which can simply be waived in a sweeping motion. In reality, privacy includes the right to have irrelevant information forgotten. Needless to say, the defense has not argued that the plaintiff waived the whole of his right to privacy in all things when he edited TalossaWiki. That would be an absurd exaggeration and mis-statement, and exactly as useful to the defense as a man made of straw. Instead, the defense has pointed out that the plaintiff himself made this information public, and so he cannot now rightfully complain that it is public.
Opposing counsel uses two examples: the use of Facebook and the use of public streets. One of these is particularly illustrative of the flaws in the plaintiff’s case, and opposing counsel has our gratitude for bringing it to our attention.
Examining the use of Facebook, we will note that users are subject to extraordinarily specific and legally binding terms of use and copyright agreements (https://www.facebook.com/legal/terms). They include provisions that certify that when you publish something on Facebook, you are granting a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.” In other words, you are giving license to Facebook to use your text and photos (and whatever else) when you upload those materials to Facebook. On TalossaWiki, users who submit material in their own turn agree to the terms of the Privacy Policy (“All contributions to TalossaWiki are public, and there should be no expectations of privacy for any edits or discussions that take place on the wiki.”) and the Copyright Policy (“By contributing information to TalossaWiki, you irrevocably consent to the display, copying, reuse or editing of your information, edits and entries, with or without attribution.”).
Just as in the plaintiff’s example of Facebook, these terms are binding. The right to privacy does not spring up and override them at whim, or else no contractual exchanges of rights could occur. Consider the contrary: a model who poses for a picture, and signs over his rights to his image in that picture. Could this model then sue the photographer or advertiser to remove his image from public, arguing that his right to privacy was paramount over his own contractual agreements? Certainly not - he has agreed to make it public and cannot not claim it is private.
The plaintiff personally, with full awareness and under no duress, published all of the relevant material to TalossaWiki. He was aware that anyone who visited the page would be able to view it - that is the entire point of a public website. In addition, he specifically ceded his rights to the material, irrevocably. He cannot now claim that its publication violates his right to privacy, unless he is willing to name himself as a defendant - because he is the one responsible for publishing it.
If a newspaper columnist writes about his own life and submits it for publication, can he thereafter sue the paper and have back issues destroyed, on the theory that the voluntarily published material is still somehow private information? Certainly not.
Any contrary finding would establish that no contract involving material about any person is truly binding, in broad contradiction of established laws about publication and privacy, and without foundation of law or sense.
5. RenunciationThe plaintiff has asserted through his counsel that the Organic right to renounce one’s citizenship includes a right to “sever all ties with the nation.”
Article XVIII Section 9 cements as a fundamental right for a Talossan to renounce his or her citizenship. We must consider that the authors of the organiclaw considered and intended an individual to be able to sever all ties with the nation. The authors likely did not consider the final disposition of photographs as the concept of a “wiki” would have been a distant conception beyond the grasp of the nation’s humble origins, had anyone even considered something similar in the first place. The provision of the Organic Law in question is as follows:
Talossans may voluntarily renounce their own citizenship. This may be done by publicly issuing a written Declaration of Renunciation. It shall take immediate effect upon its acknowledgement by the Secretary of State through issuance of a Writ of Termination of Citizenship, which shall be published under the seal of the Chancery.
Nowhere in the text of the Organic Law, here or elsewhere, is there any suggestion that a Talossan citizen has the right, upon that renunciation, to nullify other agreements into which they have entered. It is not a time-traveling right - it cannot reach back into the past and undo it. Talossan citizens have the right to renounce their citizenship, but they do not have the right to have never been citizens at all. It is renunciation, not annulment.
This is strongly evidenced by Org.XVIII.11, two provisions later in the Organic Law, which outlines how citizenship may be “restored.” It is not difficult to imagine the plaintiff reconsidering his own actions, and appealing for a restoration of his own citizenship. In such a case, what would be the effect of the magical time-traveling right to annul all past agreements? Would it make these agreements effectual only contingent on the signatory’s citizenship? It’s difficult to imagine how this procedure would work.
Opposing counsel points to the antiquity of the Organic Law as excuse. I will humbly submit, however, that 1997 was not quite so long ago, and the idea of photographs and documents were already quite well-established. Indeed, several of those who drafted the Organic Law may even have seen a computer or two, though they lived in the distant era of 1997. While the specifics of a “wiki” were certainly foreign to them, they were more than capable of considering whether or not a Talossan citizen’s past in Talossa should be eradicated on his departure. King Robert I had, after all, been writing and publishing prolifically and in very specific (occasionally defamatory) terms about other Talossans. If the Organic Law was intended to obliterate the past, it would have included provisions for doing so - and probably would not have included a simple method to “restore” citizenship. As the drafters of the Organic Law rode their horses to meetings in thatched huts in 1997, squinting at the parchment by lamplight, they would have had the capability to consider past issues of Støtanneu and whether or not they would like them censored upon a Talossan’s departure. They chose otherwise.
SummaryThe defense has here made five arguments in answer to the plaintiff’s brief, in each case illuminating the ways in which opposing counsel’s arguments are fatally flawed or based in wholesale misinformation. Briefly reviewed, these are:
1. The government has full Organic and statutory authority to create and maintain information and promotional websites such as TalossaWiki, and it would be
improper for a cort to intervene in a decision that comes well within the scope of that authority unless there were otherwise an infringement of rights or the
law.
2. Renunciation of citizenship does not dissolve the agreements and contracts into which a citizen has entered.
3. The “right to be forgotten” is inapplicable, since it refers to the deprecation of items of collated information on a search engine and not to primary content,
and inadmissable as precedent because the Kingdom of Talossa is not bound or subject to the Charter of the European Union or to any similar provisions as its Articles 7 and 8.
4. When someone voluntarily publishes information, they have given up their right to claim that it is private.
5. The right to renounce one’s citizenship does not confer the ability to censor the past.
With so little legal standing, counsel for the plaintiff has devolved to alarmism and circumlocution, pretending that the defendants are some darkly malignant entity of his own creation, seeking to seize and retain all citizen information. This is simply not the case. These proceedings and unjust demands have been remarkably distasteful, and the government (in the person of the defense, its appointed official in this regard) has no wish to drag the plaintiff into Talossa or retain him there against his wishes. We respect his privacy and his right to renounce, and while we mourn his departure, the defendants will not stand in his way.
There was no choice except to contest this action, however. If it became precedent that any former citizen had a legal right to demand the eradication of their past history, then the Kingdom of Talossa could very shortly have no history left. The nightmare case is that of Robert Ben Madison, founder and former monarch of this Kingdom. If the government permitted S:reu Marcianüs to delete almost the whole of his cultural and historical contributions on demand, then how could it turn down S:reu Madison’s own request, if he made it? Or that of any other former citizen?
And let’s make no mistake - what the plaintiff is demanding is the destruction of his own part of that history and culture. If this suit were to succeed, in its wake the only evidence of S:reu Marcianüs’ passage would be a bare list of dates and offices held: the scoured bones of his time in Talossa.
Opposing counsel has several times voiced his scorn for the idea that the plaintiff’s podcast or colouring book might have any value to the future, calling them “hardly significant.” But the defense would here argue that these things are not just significant, but extraordinarily important. The Kingdom of Talossa is a delicate thing, with a scant handful of citizens, when compared to most nations. It has been in danger of extinction not just once, but many times. Its culture has weathered mass departures and heavy immigration. This history and culture is not something to take lightly, even in its smallest part.
When these proceedings are concluded, the disputed article will be unlocked and free for editing. It is entirely possible that editors will decide that some of what remains should be removed, or that S:reu Marcianüs’ role here should be added. Either way, the departed citizen’s time in Talossa belongs to the country and to history and to culture. He has no right to destroy the past, popping it like a soap bubble. The inviolate past is the only way that Talossa can have a future.
The defense submits that the plaintiff has no justification, moral or legal, for his demands, and asks that this cort dismiss them.
Sir Alexandreu Davinescu, UrN
Defendant and counsel for the defense