[Foundation-l] Wikinews - not so much a state of the wiki

[Robert Rohde]

On Dec 4, 2007 11:54 AM, Anthony <wikimail at inbox.org> wrote:

> On Dec 4, 2007 1:59 PM, Robert Rohde <rarohde at gmail.com> wrote:
> > On Dec 4, 2007 9:58 AM, Anthony <wikimail at inbox.org> wrote:
> > > On Dec 4, 2007 11:57 AM, Thomas Dalton <thomas.dalton at gmail.com>
> wrote:
> > > > One reason we don't have editorial control of any kind is because
> with
> > > > editorial control comes editorial responsibility. At the moment, any
> > > > libel (or whatever) is solely the responsibility of the person that
> > > > added it (at least, until WMF is formally notified). If someone
> takes
> > > > editorial control, by my understanding, they would also be liable
> for
> > > > anything illegal on the site.
> > > >
> > > Where does this understanding come from?  And what jurisdiction(s) are
> > > you talking about?
> > >
> >
> > Both for copyright and libel there are provisions in the US that limit
> the
> > liability of "service providers" for the actions of their users.
>  Generally,
> > part of liability protection comes from the conclusion that the service
> > provider is unaware of the negative behavior of the users.
> >
> I think you're going to have to cite some sources for that, post
> Section 230, as far as the US goes.  Because the cases I have read
> have contradicted that point.  Specifically, I'm thinking of [[Barrett
> v. Rosenthal]].
>
> > My understanding is that if there were a full-fledged editor responsible
> for
> > approving every story then that person (or organization) could be liable
> in
> > the event that something they approved was found to libelous or
> otherwise
> > injurious to a third party.  Or in other words once you put in a filter
> on
> > submitted content, you may be responsible when negative content
> > inappropriately gets through that filter.
> >
> Again, in the US, that argument has explicitly been brought up and
> rejected.  The whole point of Section 230 was to *encourage*
> self-policing and filtering.  If services which filtered content were
> held to a higher standard, that would *discourage* self-policing and
> filtering using the very argument you are now making.
>
> > However, as far as I know, there is very little in the way of case law
> that
> > actually addresses the liability associated with massive collaboration
> > systems, like wikis.  It is unclear to me what liability a volunteer
> editor
> > might have when confronted with the injurious statements of another
> > volunteer contributor.
> >
> The fact that it is a massive collaboration system likely is
> irrelevant.  Section 230 of the CDA provides immunity to both a
> "provider or user of an interactive computer service".  It has been
> said that this immunity is essentially applicable to anyone who
> communicates over the Internet, so long as the information is
> "provided by another information content provider".
>
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Anthony,

I was somewhat careless in my description.

To quote Section 230: "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".  Where "information
content provider" means "any person or entity that is responsible, in whole
or in part, for the creation or development of information provided through
the Internet or any other interactive computer service"

A person who serves in the traditional role of an editor, i.e. someone who
both selects what content to publish and contributes to editting that
content, is in an ambiguous position with respect to 230.  To apply the
traditional dead-tree standards, an editor and the organization to which he
belong can be responsible for the content being published, even if
they are unaware of its injurious nature.  Or more specifically, this person
is traditionally seen as sharing in the role of being a content provider.

230 provides a scenario where a person managing content need not be seen as
a content provider, and may be protected as a neutral party.  Specifically,
he may be afforded protection if he is merely a user and not an "information
content provider" for the injurious content.  So, the whole thing basically
turns on whether or not the editor will be seen as a neutral conduit or an
active participant in the information creation; should he be counted as
merely a user or as a person "responsible... for the creation or development
of information" that he publishes.  Is it two independent acts of
information creation, or one collective act?

Someone who merely attempts to select information, ala Slashdot, is probably
in a strong position to argue for the 230 exemption.  Someone who
participates in the content creation process at Wikinews, while also
deciding when to promote/"publish" the story is probably in a much weaker
position.  By traditional standards, the author, editor, and publisher are
often seen as engaging in a single extended act of content creation.  I
suspect that the more people involved in the Wikinews editting and
publishing process, the more likely it is to be seen as an extended act
rather than a set of independent acts.

To consider an absurd reduction of this problem, suppose User:X writes an
article about how George Bush likes to have threesomes with Hillary Clinton
and Elizabeth Dole.  You read this story, and decide to promote it as a
serious publication on Wikinews and send it to Google News.  Now, is it
reasonable that you should be immune from liability?  I'd certainly say no.
You participated in an injurious publication process when you certainly
should have known better.  I suspect the courts would interpret an act like
that as not exempt (even if they had to bend over backwards to do so).

Somewhere between my absurd example and the case of a simple message board
there is probably a fuzzy gray line to decide when someone is just a user
and when they are part of an extended content creation process.  In the
absense of guiding case law, I personally am going to stay away from the
middle ground, but you are free to choose differently.

-Robert Rohde