Is Wikipedia safe from libel liability?
That's a lesson that's emerging from former journalist John Seigenthaler's run-in with an article in the online, anyone-can-contribute encyclopedia, which for four months carried an article falsely linking him to the assassinations of Robert Kennedy and John F. Kennedy.
But as angry as Seigenthaler was, and as untrue as the article had been, it's unlikely that he has a good court case against Wikipedia, according to legal experts interviewed by CNET News.com. Seigenthaler himself acknowledged as much in a USA Today op-ed piece.What's new:
A case in which a man was falsely linked on Wikipedia to the assassinations of Robert Kennedy and John F. Kennedy has led some to question the online encyclopedia's libel liability.
Bottom line:
While Wikipedia is most likely safe from legal liability for libel, the issues raised by the Seigenthaler case should be carefully considered, some legal experts say.
Thanks to section 230 of the Federal Communications Decency Act (CDA), which became law in 1996, Wikipedia is most likely safe from legal liability for libel, regardless of how long an inaccurate article stays on the site. That's because it is a service provider as opposed to a publisher such as Salon.com or CNN.com.
"I think that there's no liability, period," said Jennifer Granick, executive director of the Center for Internet and Society at Stanford University Law School. "Section 230 gives you immunity for this."
In his scathing,
And despite his protestations, Seigenthaler wrote, Wikipedia's only action prior to removing the offending article on Oct. 5 was to change a misspelling on May 29, just three days after it was originally posted.
On Monday, Wikipedia announced that it would no longer allow unregistered users to post new articles, on the theory that members--who have provided some personal information to register--will be more accountable for what they write. However, registering for Wikipedia takes only seconds and doesn't even require providing an e-mail address.
Of course, Wikipedia's standing has yet to be tested in a courtroom. Until then, no one can say for certain that the fast-growing online encyclopedia--which hosts 853,630 articles in English and in excess of a million more in dozens of other languages, and which has grown from 16,061 registered users in October 2004 to 45,351 at the end of October 2005--isn't liable for material that appears on the site.
When Wikipedia errs
weighs in on the relationship
between Wikipedia and truth.
But people like Seigenthaler who are unhappy about an anonymous posting on the site may well find that they have no legal recourse since Congress has decided that without giving service providers protections against legal liability, only very rich and cautious media companies would be able to host third parties' content, said Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation.
In one of the most famous cases testing a service provider's liability, Zeran v. America Online, the 3rd U.S. Circuit Court of Appeals, located in Philadelphia, ruled unambiguously that online services like AOL, Amazon.com or Wikipedia are protected under the CDA, said Opsahl.
"By its plain language, section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service," the 3rd Circuit wrote in its 1997 opinion. And that's true even when a service provider--like Wikipedia-- makes regular efforts to ensure that content it hosts is clean. Prior to the passage of the CDA, said Opsahl, the legal environment was unclear about whether a service provider that took steps to edit content faced higher liability than one that didn't.
"One of the reasons Congress passed the (CDA) was to encourage service providers and other who make their space on the Internet available to do monitoring without assuming liability," said Roger Myers, a San Francisco-based partner at the international law firm DLA Piper Rudnick. "Congress was very specific about this."
In addition, said Myers, who occasionally consults on legal issues for CNET Networks, there's been only one case that has held that a service provider carries any liability if libelous information is brought to its attention and isn't taken down. But that case, Barrett v. Rosenthal, is currently under review by the California Supreme Court, and isn't currently citable, meaning it can't be used as precedent in future cases.
Still, the issues raised by the Seigenthaler case should be carefully considered, said Granick, because services like Wikipedia still contain inaccurate information.
"It's a fascinating issue," she said. "Because here you have Wikipedia, which is a great thing, which was able to flourish and thrive because of the absence of liability. On the other hand, the collaborative, decentralized nature of it means pieces of it are broken, and it's unavoidable. So the question is what can we do to stop this in the future and at what price?"
For its part, Wikipedia is attempting to address some of the problem with its new rule prohibiting unregistered users from creating new articles, though anonymous users will still be able to edit existing entries, said Jimmy Wales, the service's founder. Wales strongly believes the service is on solid ground.
"I'm not a lawyer," said Wales. But "to the extent that I'm aware, we would be in a similar situation to Yahoo or any kind of common Web site where people are allowed to post messages."
Wales also said that despite Wikipedia hosting other objectionable articles--which a group of volunteer administrators tries to address on a regular basis--the service has never been sued. But while Seigenthaler's situation is notable because of his relationship to the high-profile Robert Kennedy, the deleted Wikipedia article about him is only one example of a hoax on the site, something that happens from time to time.
We "plan to keep it that way if we can," he said. "We take a strongly pro-active approach to deleting vandalism and consider our approach to be 'best of breed' in terms of discouraging abusive postings."
In any case, issues like those raised by the Seigenthaler case are not likely to go away any time soon, and could still find their way into courtrooms, despite the CDA, said Douglas Lichtman, a professor at the University of Chicago Law School.
"Courts today still debate the precise contours of the relevant statute," said Lichtman, "but the consensus view would be that Wikipedia is not liable for most bad acts--including, say, defamation--that its contributors might perpetrate."
Lichtman added that he feels Wikipedia could face liability in some very limited cases.
For example, he said, if Wales and his Wikipedia colleagues knew clearly that they were distributing defamatory material, "that knowledge plus Wikipedia's ability to remove the defamatory material should, in my view, give rise to an obligation to act."
But Lichtman also noted that such an example was no more than a hypothesis.
"In Wikipedia's specific case, as implemented today," he said, "I do not see much more that can be done. The consensus view of the law would seem to protect Wikipedia, and that sounds like the right decision on policy grounds given the facts at hand."
CNET News.com's Michael Kanellos contributed to this report.