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

Anthony wikimail at inbox.org
Tue Dec 4 23:44:40 UTC 2007

On Dec 4, 2007 5:57 PM, Robert Rohde <rarohde at gmail.com> wrote:
> 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.

Yes, it depends if their editing constitutes being a provider of information.

> 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.
But Section 230 of the CDA intentionally creates a different standard
for Internet publications and traditional dead-tree standards.  Or, to
quote the very first paragraph of Batzel v. Smith:

<blockquote> There is no reason inherent in the technological features
of cyberspace why First Amendment and defamation law should apply
differently in cyberspace than in the brick and mortar world.
Congress, however, has chosen for policy reasons to immunize from
liability for defamatory or obscene speech "providers and users of
interactive computer services" when the defamatory or obscene material
is "provided" by someone else.</blockquote>

> 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.

Ah, I see what you're saying.  Yes, there is some dispute over how
fine grained the "provided by another information content provider"
should be taken.  If someone edits one section of a Wikipedia article,
do they give up immunity for that section, for the entire article, for
the entire site, or for only the statements they actually wrote?  I'll
certainly admit the law itself is not clear on that point.  The courts
seem to be taking a narrow view, though.  I don't have any citations
on that at the moment though, so I'll leave it open.

> 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.
Traditional standards are completely irrelevant, in my opinion,
because Congress clearly and intentionally provided different
standards for providers *or users* of interactive computer services.

> 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.

Should you be immune from liability?  No way.  Are you immune from
liability under the CDA?  Under current precedent in California,
probably (IANAL, don't try this at home, etc).  Elsewhere in the 9th
Circuit, probably (IANAL, don't try this at home, etc).  Elsewhere in
the US, depends how good your lawyer is.

> 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).
Did you read the details of the cases I provided?  Take Barrett v.
Rosenthal, which I liken to Bang Bang v. Giano II.  Some guy took a
libelous (*) email someone sent him and published it on the Internet.
He participated in an injurious (*) publication process when he
certainly should have known better (*).  And he got off scott-free.

(*) At least, this was assumed to be true for the purpose of the case.

> 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.
My moral standards are such that I'm going to choose not to
participate in such behavior regardless of the law, but I provided the
case law - [[Barrett v. Rosenthal]] and [[Batzel v. Smith]].  At least
read the Wikipedia article, if not the actual decisions.

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