Wikimmunity: fitting the Communications Decency Act to Wikipedia.

• Author: Myers, Ken S.

TABLE OF CONTENTS I. INTRODUCTION II. INTRODUCING WIKIPEDIA A. History and Development B. Article Creation, Accretion, and "Governing" Policies C. Seigenthaler Controversy and Aftermath III. INTRODUCING THE COMMUNICATIONS DECENCY ACT IV. REBUTTING THE "DEFINITIONAL" READING OF § 230(C)(1) V. FITTING § 230(C)(1) TO WIKIPEDIA A. First Prong: "Provider or User of an Interactive Computer Service" B. Second Prong: "Treated as the Publisher or Speaker" C. Third Prong: "Information Provided by Another Information Content Provider" VI. THOUGHTS FOR FITTING WIKIPEDIA TO § 230(C)(1) A. Make the "Entity" Small B. Deconstruct the "Information" C. Avoid "Encouragement" D. Limit the Number of Defamers and Plaintiffs VII. CONCLUSION VIII. APPENDIX IT IS AN ACT OF NATURE AND IT GROWS ITSELF THROUGH OUR COLLECTIVE ACTIONS. YOU [TERRESTRIAL GOVERNMENTS] HAVE NOT ENGAGED IN OUR GREAT AND GATHERING CONVERSATION.... (1)

IMAGINE A WORLD IN WHICH EVERY SINGLE PERSON ON THE PLANET IS GIVEN FREE ACCESS TO THE SUM OF ALL HUMAN KNOWLEDGE. THAT'S WHAT WE'RE DOING. (2)

1. INTRODUCTION

   Wikipedia (3) is a project. Its goal is as ambitious as it is simple: to "create and distribute a free encyclopedia of the highest possible quality to every single person on the planet in their own language." (4) Contributing to this project are hundreds of thousands of volunteers scattered across the globe, with varying levels of expertise. Anyone may edit or contribute to Wikipedia, and the contribution is immediately available to the world. Therein lies both the beauty and the beast.

   On the backs (or fingertips) of unpaid volunteers, Wikipedia boasts over 3.5 million articles in over 200 languages after only five years of existence. A recent study by Nature concluded that Wikipedia is no less accurate than Encyclopaedia Britannica, at least in the articles it selected for comparison. (5) Yet for several months, Wikipedia carried a blatantly false biographical article on John Seigenthaler, Sr., which implicated him in the assassination of President John F. Kennedy. An anonymous user had made the edit to the Seigenthaler article as a joke, but the reputational damage it caused was anything but.

   Fortunately for Wikipedia, Seigenthaler is a strong advocate for First Amendment rights of free speech, and as a journalist his response was to criticize Wikipedia in a public forum rather than to sue in court. (6) Wikipedia may not be so fortunate in the future. If it is sued for defamatory speech on its site, its defense will be the immunity provided by 47 U.S.C. § 230(c)(1), which states that "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." (7)

   Many commentators have already suggested that Wikipedia would be able to escape liability for defamatory content pursuant to § 230(c)(1)'s immunity. (8) Unfortunately, none of these commentators provide a detailed roadmap to that conclusion, and courts interpreting § 230(c)(1) have not been precise with respect to their choice of the several alternative approaches to the statutory text. This Article is an attempt to bridge that gap by identifying and resolving the ambiguities relevant to an application of § 230(c)(1) to the unique facts of Wikipedia.

   In many ways, Wikipedia embodies John Perry Barlow's vision of a user-directed and user-created cyberspace. (9) It exists purely through the efforts of its users, individuals that have the potential to include every person connected to the Internet. However, Barlow's vision that "[w]here there are real conflicts, where there are wrongs, we will identify them and address them by our means," (10) is largely unrealized as cyberspace's population expands. (11) Sure, information wants to be free, (12) and Wikipedia certainly is free in the monetary sense, but should it also be free in the other sense--from meddling governments? (13)

   With the Telecommunications Act of 1996, (14) the 104th Congress seemed to answer that question in schizophrenic fashion. It amended § 223 and created § 230 in the Communications Act of 1934. While the amendment outlawed "indecent" communications over the Internet, courts have interpreted the latter as having created a very broad immunity for qualified re-transmitters of information. (15) The Supreme Court held that the amendment to § 223 was unconstitutional, (16) leaving the liability-immunizing provisions of § 230 largely unfettered. Although litigation has quickly flowed into the liability vacuum for speech-based causes of action to determine the boundaries, the current situation is moving towards Barlow's vision of a cyberspace free from government regulation.

   Part II describes Wikipedia--how it came to exist, the policies that "govern" the Wikipedia community, and the Seigenthaler controversy that sparked a public outcry. Part III introduces the development of the Communications Decency Act. Part IV rebuts a suggestion made by Judge Easterbrook that § 230(c)(1) provides no basis for immunity at the outset. Part V breaks down § 230(c)(1) into its component parts and applies the resultant three-prong test to Wikipedia. Finally, Part VI offers a few suggestions for Wikipedia to maintain its strong position in the § 230(c)(1) analysis.

2. INTRODUCING WIKIPEDIA

   1. History and Development

      In March 2000, Jimmy "Jimbo" Wales, CEO of Bomis, Inc., founded an Internet encyclopedia project named Nupedia. (17) Unlike other contemporary projects aimed at providing encyclopedic content over the Internet, (18) Nupedia sought to create an encyclopedia that would be free for all to use. (19) To avoid obvious intellectual property issues, Nupedia sought to publish self-generated content. With the goal of maintaining professional-level quality, Nupedia utilized an extensive seven-step peer-review system and generally required editors to possess PhDs. (20) However, the low number of article contributions and the lengthy review process led to only twenty-four published articles on Nupedia in 2000. (21)

      To facilitate the creation of new articles to feed through the review process on Nupedia, Wales and Editor-in-Chief Larry Sanger decided to launch an ancillary project using wiki technology (22) that would allow the public at large to contribute. (23) After resistance by the subject experts on Nupedia's Advisory Board to the open contribution format of the wiki, Sanger suggested launching the project under a new name on its own domain. (24) Thus, Wikipedia was born on January 15, 2001 (known as "Wikipedia Day" among the Wikipedia community). (25)

      In August 2002, shortly after Wales's announcement that Wikipedia would have no commercial advertisements, Wikipedia moved its URL from wikipedia.com to wikipedia.org. (26) By late 2004, Wikipedia had over one million articles, 400,000 of which belonged to the English-language version. (27) As of October 1, 2006, there are more than 5 million articles, of which about 1.4 million are in English, and over 2.6 million registered user accounts. (28)

      The Wikimedia Foundation Inc., created on June 20, 2003, operates as the parent organization of Wikipedia and the other Wikiprojects (e.g., Wiktionary, Wikiquote, and Wikinews). (29)

   2. Article Creation, Accretion, and "Governing" Policies

      In contrast to Nupedia, when Wikipedia was launched, it allowed anyone to create or edit--anonymously--any article. (30) Indeed, its slogan was, and is, "the free encyclopedia that anyone can edit." (31)

      Before the editing process can begin, someone must create the article. Often, articles begin as a "stub," usually comprising of no more than a title with a few short sentences that describe the article's subject. Stubs serve as "more info wanted" signs so that as users with relevant information come across them, (32) they can grow into full-fledged articles. As an article evolves through the many accretions left by Wikipedia users, a history page catalogues archived copies of each version. Each new version has a time stamp and either a username (if the change is made by a registered user) or an IP address (if unregistered). (33) One can compare any two versions to identify any single accretion and its author.

      Occasionally, an article's progress is not smooth. "Edit wars" or "revert wars" occur when two or more actively editing users have opposing views regarding the content of an article. By using the history page, any user can easily revert to an earlier version of a page, thereby erasing the contributions of another.

      Wikipedia also suffers, perhaps predictably, from vandalism. (34) To defend against such attacks, Wikipedia users have created a number of tools to monitor new articles and recent article edits, particularly those made by unregistered users. (35) A 2002 IBM study found that over half of all instances of vandalism were reverted within five minutes, demonstrating the tools' effectiveness. (36) However, these tools focus on more egregious forms of vandalism (e.g., spamming by unregistered users), and not on more subtle, yet equally damaging, misinformation. (37) When presented with these instances of possible non-obvious vandalism, any user may request administrator investigation (usually after reverting once or twice) on the "Requests for Investigation" page. (38) During this investigation and the ensuing discussion, the offending material may remain visible on the Wikipedia article.

      With respect to living biographies, a likely site of defamation, Wikipedia considers substantive edits by the biography's subject improper. (39) The preference is for debates over substance to occur on the discussion page and not through edits to the article itself. However, the policy does encourage subjects of a biography to correct "obvious vandalism." (40) A defamed individual may also contact Wikipedia directly to request assistance. (41)

      When either an edit war or vandalism disrupts an article, any user can...