Suing Wikipedia
posted by Daniel Solove
What happens if there’s a Wikipedia article about you that’s unflattering? What if it is in error or revealing of your private life? Wikipedia, for those not familiar with it, is an online encyclopedia that is written and edited collectively by anybody who wants to participate.
Daniel Brandt, a blogger who maintains blogs called Google Watch and Wikipedia Watch complained to Wikipedia administrators asking them to delete an entry about him. What should one’s rights in this regard be?
Here’s what Brandt writes:
There is a problem with the structure of Wikipedia. The basic problem is that no one, neither the Trustees of Wikimedia Foundation, nor the volunteers who are connected with Wikipedia, consider themselves responsible for the content. . . .
At the same time that no one claims responsibility, there are two unique characteristics of Wikipedia that can be very damaging to a person, corporation, or group. The first is that anyone can edit an article, and there is no guarantee that any article you read has not been edited maliciously, and remains uncorrected in that state, at the precise time that you access that article.
The second unique characteristic is that Wikipedia articles, and in some cases even the free-for-all “talk” discussions behind the articles, rank very highly in the major search engines. This means that Wikipedia’s potential for inflicting damage is amplified by several orders of magnitude.
Brandt muses whether he ought to sue Wikipedia:
As someone who has been jostling with Wikipedia administrators for several weeks, I am very interested in whom I should sue if I wanted to sue. This assumes, of course, that I’ve decided I’ve been clearly libeled by Wikipedia’s article on me, and/or the discussion page attached to it. At the moment, this is an intellectual interest of mine, and I am not currently claiming that I have been libeled.
1. Should Wikipedia take down the entry as a matter of policy? If so, should they take down anything that a person finds offensive or disagreeable? Or should they be more restrictive as to what they deem deletable?
2. The Communications Decency Act (CDA) § 230 provides immunity for an ISP or website operator for liability for comments posted by others: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. §230(c)(1). Under § 230, ISPs cannot be liable as “publishers” of information posted by a user. The operators of a blog cannot be liable for comments posted by others. Wikipedia is akin to the operator of a blog that accepts comments by users; the folks at Wikipedia are allowing others to put up information, and under § 230 they cannot be held liable.
3. There remains a disputable issue as to whether § 230 applies once a website operator knows that a comment posted is defamatory or invasive of privacy. Some cases have held that § 230 still applies, but other courts have concluded that once a website or ISP has knowledge of about an improper comment and still leaves it up, this could give rise to liability. What should the rule be in this regard?
Related Posts:
1. Solove, Yahoo! Nude Photos Case (PrawfsBlawg)
Hat tip: Google Blogoscoped
November 11, 2005 at 12:33 am
Posted in: First Amendment, Privacy, Tort Law, Wiki
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Responses (8)
John Armstrong - November 11, 2005 at 1:33 am
I don’t see any way to give Brandt his way without disassembling the very notion of a wiki. Either it’s freely editable or it’s not. If Saddam Hussein thinks he comes off in an unflattering light in his entry, can he require it to be removed? How about Charles Manson? This isn’t to equate Brandt with these men, but to show that this is a case where the slope is slippery indeed.
Wikipedia has a very clear content disclaimer:
Does Brandt believe that people are disregarding the disclaimer and taking Wikipedia as authoritative? Then he has his own forum already to complain and to advance his case.
In the interests of full disclosure, I know very well what Brandt is going through — feeling like he’s being slandered by a better-connected, better-promoted, more popular group. I remember some of those times very vividly, and I also remember some advice I recieved: my mother told me to go back to the playground and call them stupidheads right back.
Paul Gowder - November 11, 2005 at 9:51 am
Dan: I believe IP addresses are logged on wikipedia. Simple solution for this guy is to subpoena that and get the person who inserted the allegedly defamatory content.
(also, has sec. 230 ever been held to bar injunctive relief?)
Perhaps more interesting would be self-help, however. Couldn’t he edit the wikipedia entry on himself to remove the defamatory material, and post an explanation as to why? And if he failed to do so, would he still be able to recover damages?
Eric Goldman - November 11, 2005 at 10:01 am
Maybe I’m missing something, but I’m with Paul G.–why doesn’t Brandt just edit the entry himself? Wikipedia seems to give defamed parties a far more powerful remedy than even a “right of reply”–it’s a right to edit!
And while I recognize there are a few scrappy precedents that create the ambiguity described in your point #3, I’m extremely optimistic that the Wikipedia operators would fully qualify for 230’s protection for any defamation claim based on user edits.
Eric.
Ken Arromdee - November 11, 2005 at 10:09 am
why doesn’t Brandt just edit the entry himself? Wikipedia seems to give defamed parties a far more powerful remedy than even a “right of reply”–it’s a right to edit!
On his site he claims that he is not allowed to edit the article. “Believe it or not, Lenssen’s position is that I don’t have the right to touch any articles that mention me…”, “Now Lenssen and other editors (everyone except me, of course) are free to…”
He also says that he had tried to edit before and “My only interest in trying to shape the article was to determine how much power I had to address this situation short of a deletion. I am now satisfied that I lack sufficient power”.
Chris Farris - November 15, 2005 at 4:30 am
I find it interesting that wikipedia was authoritative enough for the Michigan Law Review in footnote 15 of the Harry Potter piece.
As for who is at fault, I’d follow Paul’s advice and go after the poster of the libelous information. Of course it isn’t trivial to translate an IP address into a name.
"Legal Eagle" - December 3, 2005 at 6:07 pm
Q: Why doesn’t Brandt just edit the entry himself????
A: It represents no right of reply if a subsequent visitor to an “amended” entry goes in and rewrites it yet further. The Wikipedia ethos pays only lip-service to fairness (have you *tried* to decipher amendments in its History files?).
Jimmy Wales and those who run Wikipedia are not only arrogant but naive. A year ago I posted my views as a footnote to an utterly factually wrong entry on a specialist subject in which I have been an active participant. I declined to “edit” the existing entry, saying that the Wikipedia ideal was flawed: any entry is only as good as the last pair of hands to edit it, which guarantees nothing. In any case I’d have had to completely rewrite the item in question, which betrayed its authors to be secondary sources.
Weeks later my comment was removed to the bowels of Wikipedia’s history, as was a second critical footnote I submitted earlier this year. The original incorrect entry stands to this day. -
“Legal Eagle”
Leonardi - March 28, 2007 at 3:45 pm
Even if he could edit the entry himself, or have someone else do it for him, there’s still the fact that the defamatory content was available online for quite some time. Self-help would work to stop the problem from that moment forward only.
Tom Anderson - May 7, 2009 at 8:59 pm
Why aren’t they suing the writers of libelous statements? Wikipedia allows a place for people to collaboratively write text about things in the world. But when a person gets carried away, writing maliciously, why is it any different than taking out an advertisement in a newspaper and printing defamatory statements?
Recently a hoaxer added a false quote to a biography shortly after the person died with the express intent to make others print that false quote: http://tech.yahoo.com/news/nm/20090507/wr_nm/us_wikipedia_hoax_2
I see no reason that the hoaxer should not be sued for defamation. Even the anonymous editors should be liable to a lawsuit, though it might be more difficult to prove their identity. But in the case of the hoaxer I mentioned, he has already admitted he did it, he admitted that he thought others would falsely reprint his false statement about the dead person, and should therefore be sued because he’s so stupidly inane.
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