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2023 Terms of Use updates

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2023 Terms of Use Consultation Explanation of Changes

Introduction

This page is an explanation of the overall updates that the Wikimedia Foundation Legal department is proposing to the Terms of Use (ToU) in early 2023. This document lays out a brief summary section by section of what we are proposing would be updated and why we want to make the change. We hope that this is helpful for community members when reviewing the proposed changes during the feedback cycle.

Important note: Some of the proposed updates during this feedback cycle are necessary for Foundation legal compliance. Community feedback can help us ensure the wording of such changes is as good as possible, but we must make some sort of change in line with the proposals here. Other aspects of this proposal are optional ideas that we think would be helpful in light of our understanding of the projects and community feedback over the past ten years. These proposals can be significantly adjusted or abandoned entirely if the community believes that they would do more harm than good. We have tried to identify this distinction in the summaries below.

21 February 2023

Summary of overall changes

The introduction and overview sections have been revised for clarity and minor technical or semantics points. Section one (services) has been updated to include a reference to APIs and to clarify the definition of services which we believe is useful but optional. Section two (privacy policy) removed language about cross-border transfers because it is no longer legally relevant. Section 4 (refraining from certain activities) has major revisions: additions include a reference to the Universal Code of Conduct (UCoC) and update to the language about, fraud, disruption, paid contributions without disclosure, and actions not covered by the office action policy. Some changes in section 4 will assist with Digital Services Act (DSA) compliance. Some changes were made in anticipation of other upcoming laws such as the UK Online Harms Act. Some are more general proposed ideas. Section 7 (content license) implements the CC BY-SA 4.0 upgrade based on the 2016 community consultation on that topic. Section 10 has significant updates related to the DSA.

Summary section of the Terms of Use

The summary section of the Terms of Use has been updated with some additions to reflect the overall changes below. The goal of the summary section is to be a good human-readable way of understanding the Terms of Use, so please let us know if any of the updates here are confusing or too difficult to read.

Introduction

We adjusted the wording to add some information we’ve seen confused and make the section easier to translate. For example, lots of people who contact us don’t know that we’re based in San Francisco. The particular wording changes here could be tweaked or cut if there are any concerns.

Overview

We’ve added some wording changes here. We took out the DMCA reference as there are now several laws that require a DMCA style content review (including the DMCA itself, FOSTA, some privacy claims, the Digital Services Act, the European anti-terrorist laws, and possibly more coming). We instead noted that the general intervention here is legal compliance and threats of serious harm.

We also added a reference and link in the overview to the Universal Code of Conduct in the intro to prominently let people know it exists within this ToU document.

Other changes are wording tweaks for clarity and conciseness.

These changes are open to general feedback and can be removed or reworded if there are concerns.

Section 1 Our Services

We have added a reference in this section to the APIs, which are now more widely in use than in 2012. We have also added a definition to this section to more clearly indicate what our services cover as the term is used in the rest of the Terms of Use (ToU).

It is our opinion that the APIs are covered by this document regardless of whether this language is present or not, so the purpose of this is clarification. We think that’s quite useful, but please let us know if we haven’t gotten the definition quite right for these additions and we can adjust it.

Section 2 Privacy Policy

We cut some of the older language around cross-border transfers. This language is no longer legally relevant due to updated laws. Information on data transfers and all other privacy issues is now in the privacy policy. This is purely a language change and does not represent any change to our data handling practices.

Section 4 Refraining from Certain Activities

This section has multiple changes, which we break out below.

• We’ve added a new explanatory section intro that directly incorporates the Universal Code of Conduct (UCoC) by reference and asks users to follow it. The language here can be reworded if you see a concern, but we do need to have some reference to the UCoC here as part of the instructions on the enforcement pathways. The UCoC is also identified in the harassment section as a way to define harassment.

• At the end of the harassment section, we added a line regarding contributing content that’s intentionally designed to hurt a reader such as by causing them to harm themselves or triggering an epileptic seizure. This was already prohibited under the more general terms, but we believe it is likely that upcoming laws, the UK Online Harms Act in particular, will require an explicit reference to this.

• In violating privacy, we added an addition to account for countries where the age of majority is older than 18.

• We added to the fraud section that we consider hiding one’s affiliation when disclosure is required (either by us or local project policy) to violate this section. This should make undisclosed paid editing and scamming attempts a little easier to address. More on this below.

• We also adjusted the language on posting information to deceive or mislead others to more broadly cover the variety of possible disinformation campaigns such as contextless or partial information.

• We’ve added some additional language in the disruption section and added a short extra section below it that expands on technical disruption issues in light of the Foundation having some additional policies on these areas that did not exist a decade ago.

• We added a section in paid contributions without disclosure that people who post that they will do paid editing work elsewhere on the internet need to disclose what accounts they plan to use. This was originally suggested by an English Wikipedia policy and we liked it and think it will make it easier to stop bad faith undisclosed paid editors in the future.

• Added language about actions we may take not covered by the office action policy. This is to account for new requirements under changing laws. It is intended as a transparency commitment from the Foundation that if we find ourselves required to do things we haven’t before, we’ll get them into the office action policy to help improve predictability within a one year timeframe.

• We have a new section on mediation and arbitration for undisclosed paid editors. This section is written to offer a new legal alternative for addressing bad-faith undisclosed paid editing. We think this will discourage bad faith undisclosed paid editors and make it easier for us to support the efforts of community functionaries around the world. It is intended as written to cover deceptive and scamming type services and to NOT cover GLAM efforts.

Overall, section four was a main subject of change for us. Some of these changes are ways we think we can be helpful based on community concerns we’ve heard over the past ten years and can be subject to significant change or not done if people think they would do more harm than good overall. Others are related to our legal requirements and may need to be present in some form although we are open to feedback on the wording for all these changes.

Section 7 Licensing of Content

Changes to this section represent the implementation of the upgrade of project text to a new license version! This section has been updated with the language for CC 4.0 as proposed here.

When these changes go into effect, future text contributions to the projects will default to a CC BY-SA 4.0 license, rather than the current 3.0. As articles are updated, they will also become CC BY-SA 4.0. Users will also be able to copy CC BY-SA 4.0 text from other sources over to Wikipedia that was not previously possible.

For more background about this section’s changes, please see the 2016 consultation here.

Section 10 management of websites

We’ve added a significant amount of new language here to cover our compliance with Europe’s Digital Services Act. Below, we provide a section by section breakdown of what each block of language is doing.

1. We’ve added a new block of text explaining how to notify us of illegal content. This is required in some form based on the DSA’s obligation that we explain in our Terms of Use how we handle complaints. The language we’ve used tries to encourage people to use community systems where possible. The particular descriptions can be modified if there is a better way to direct people than how we’ve written it.

• We have made some small additions to the bullet points. The goal of these changes is to indicate that the DSA may require us to address some types of content that violates the law beyond our traditional copyright requirements. The language changes here are set by law (we’re describing things we need to do whether we put them in the ToU or not), but if we have accidentally created a significant problem with our phrasing, please let us know and we can try to adjust to address it.

• We’ve added a section indicating that some functions may be performed by software and that in any case where software performs an action, human review is available. This is required to be indicated by the DSA even for simple actions such as the anti-DDOS measures given in the text.

• We’ve added a short text block about how someone can complain under the DSA if they don’t think we handled their request properly. This will link out to a separate page similar to the existing DMCA policy. This explanation is required by the DSA.

• We have added a paragraph about how we may suspend accepting DSA notices from bad-faith senders. This right is included in the DSA and we also think this section will be valuable to protect the Projects from people attempting to remove content through spammed or fraudulent legal demands.

In practice, we think that most of this language actually does not significantly change our company practices except from a procedural point of view. In other words, we are increasing the procedural formality with which the Foundation accepts complaints, but in practice the content of the vast majority of complaints that the Foundation receives will likely be handled the same way that they are currently.

We need to have most of this language for legal compliance purposes as explained in the numbered points above. Although we cannot fully cut these changes, we definitely want to know if anything we’ve added here may have caused an unintended problem so that we can make adjustments to the language to address it.

Section 12 API Terms

We have added a new section 12, API terms. This is to refer users to the set of policies related to our APIs which did not exist in 2012 when the previous draft was written.

Similar to the changes in Section 1, we believe that the API policies are arguably already incorporated, but this clarifies things in case of a future semantics dispute.

This insertion also means that every other section after this has been renumbered.

Section 14 Disputes and Jurisdiction (formerly section 13)

This section has new language that provides the legal terms for the mediation and arbitration added to section four. The language here is technical legal language to establish the process and legal outcomes, so it’s not subject to direct suggestion. It is open to discussion about whether the proposed process is good as written though, and if we need to adjust or decide not to use the process for violations of undisclosed paid editing under section 4, we will adjust the language here as appropriate.

One legal term we’d like to highlight is that we propose that someone who is covered by the ToU agrees to provide a client list and a list of accounts used on the Wikimedia projects if they violate the undisclosed paid editing section. If this is successful, it will help us gain information that we could share with the communities about bad actors.

Section 18 Other Terms (formerly section 17)

We’ve added a small additional note here for DSA purposes. This should help to protect users with special rights (like admins or functionaries) from liability if the Foundation does not act correctly under the DSA’s legal requirements. We think it is unlikely that users would have been liable for a Foundation mistake in any event, but the extra language here helps make sure that there’s no risk to users under the DSA.

22 March 2023

Through the document

Updated the terms “contributor” “editor” and “author” for document consistency. Where multiple of the terms were used, we have used all three together to cover the full range of activity. Author is used separately in several places, primarily for its use in copyright law and remains used alone.

Updated the use of the terms “Project” and “Wikimedia Projects” for consistency throughout the document.

Updated some other terms and capitalization where inconsistent.

Redid several links in response to the feedback that single-word links make the document more difficult for people with disabilities who use screen readers. All links should now be a group of words or a short phrase matching the content being linked.

Fixed typos and grammatical errors. Thanks for catching these! Note that as part of the process, we will also give the final clean version a read through for grammar and typos before it goes on foundation.wikimedia.org

We have also taken note of typos in translation and those changes will be reflected in the final translation after the community consultation is over.

Our Terms of Use

Removed the 501(c)(3) addition, as some people found it confusing and it was not required. This information can still be found on the Foundation corporate website or from company registration documentation available publicly.

NOT CHANGED: We did not adjust the language in the overview indicating that laws may apply where “you or the subject you’re writing about are located).” As there was feedback about this, we want to explain why we have left it. We added this language to help warn editors to be careful about external risks, as we have seen several legal cases in the last decade that used the law of the article subject, rather than US law or the location of the editor. Unfortunately, this trend is likely to remain true for the foreseeable future whether we put it in the terms of use or not. For clarity, this language in the overview does NOT refer to Foundation enforcement actions. It’s only there to warn editors to be cautious when writing about living persons or organizations who might initiate a lawsuit.

Section 4

NOT CHANGED: The new language “Posting or modifying content with the intention to seriously harm others” in the harassment section. We responded to a few comments indicating confusion, but our understanding is that the text is still the best version of this issue and we hope that the confusion was addressed by the replies.

Added the reference “applicable law” in the intro language for this section, and in “Engaging in False Statements, Impersonation, or Fraud” noted that the Foundation standard for defamation is only US law. See section 10 changes below for the overall explanation of this and related changes.

We added some additional language in the “Misusing Our Services for Other Illegal Purposes” section to clarify that pedophilia advocacy, solicitation, or grooming is not permitted on the projects. This addition is due to a non-public comment requesting that we review adding additional language on this topic received from the Case Review Committee

In third party technical resources, changed “uploading” to “improper use” based on feedback that this would better describe the issue.

Added some additional language and clarification in the new marketing company mediation section based on the feedback received. For example, we clarified that logged-out editing would likely be a violation of the policy because a user generally can’t meet their disclosure requirements by its very nature. We also changed the information link to the primary English language COI policy per the suggestion to do so.

NOT CHANGED: Many community members made good arguments that the line governing paid editing disclosure, “You must make that disclosure in at least one of the following ways,” should be changed to, “You must make that disclosure in all three of the following ways.” After internal debate, we agree that this would meaningfully relieve burden on editors for checking disclosures, but we also believe that increasing complexity may also harm certain good faith contributors without having much affect on anyone intentionally breaking the rule. We are trying to narrowly tailor these undisclosed paid editing enforcement changes to target intentional bad actors.

Because the debate has wide ranging affects across projects, it seems more appropriate to defer to community processes for this. For example, if en-Wiki wants to change this part of their undisclosed paid policy to make it “all three” by consensus, then at whatever point that local rule took effect, we could also enforce it through the ToU. Further, if there was consensus on a project that, “all paid editors needed to disclose via a template,” such that that template was easily searchable, that could be another solution to address these concerns.

Section 7

Removed one use of “BY-SA” to remove text importation redundancy. Some language clean-up as well.

Section 8

Updated DMCA transparency to Lumen Database. The chilling effects website redirected there, but this should make the way that DMCA takedowns are reported more clear. Note that both are the same entity, Chilling Effects just renamed itself to Lumen during the past decade.

Section 10

In the section about “repeat posting of unlawful material” we have added the language “under applicable law in line with human rights principles.” We have also reflected this in the summary and where referenced similarly. This is in response to the concerns that some users expressed that this language could expand to result in the Foundation taking action against users for violating harmful laws from around the world. We’ve added this human rights language to indicate that the Foundation would not take such actions where laws are out of compliance with global human rights principles. We also note that separate from the ToU we updated our legal policies meta page with an updated explanation of how the Foundation identifies applicable law. This reflects that there is greater global legal regulation of website hosts, making it impossible for us to only use US law, but also aims to protect the movement to the greatest extent possible.

18 April 2023

Through the document

Updated some semantics: for example, using the term "websites" instead of "sites."

Continued making the defined term "Project(s)" making consistent with the non-defined term "project(s)."

Updated some other punctuation and capitalization where inconsistent.

Continued to respond to the feedback that single-word links make the document more difficult for people with disabilities who use screen readers. We adjusted another link that still needed to be fixed.

Section 4

Based on your feedback, we removed the language integrating the "Third Party Technical Resources" since the final text of that document will not likely be complete before the end of this consultation process.

We adjusted the phrasing in the final bullet point of section four to clarify how local rules interact with the new undisclosed paid editing enforcement mechanism. We state in plain English that local rules "may supplement or replace" these terms of use requirements.

NOT CHANGED: A handful of community members are concerned about how the commercialization of generative text and image algorithms (for example, "ChatGPT") may affect the projects. They've asked Foundation Legal to address these tools directly in the terms of use. Thus far, these tools have not presented any novel legal issues that would require us to discuss them directly in the terms. Indirectly, the existing terms and local project rules already prohibit many of the negative issues that these may create. As a result, we believe the community should create local rules for how these tools are used on the projects.