[Foundation-l] Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act

[Gregory Maxwell]

On Sun, May 18, 2008 at 1:25 PM, Geoffrey Plourde <geo.plrd at yahoo.com> wrote:
> When a trained attorney says something could cause a lawsuit, generally they are right, and generally the best course of action is to kill the something in question before someone dashes to their friendly neighborhood U.S. Courthouse.

Yet Wikimedia gets email from (people claiming to be) the attorneys of
companies and people that the projects have written about, demanding
that articles be taken down or changed with some regularity, but as
far as I can tell their demands are not met with some regularity.

Wikinews, in particular, contains a lot of non-neutral and highly
opinionated material.  I've complained about WN on the lists a number
of times.  The articles posted to Wikileaks were, in my somewhat
considered opinion, far closer to non-libelous than some other
material on WN, but this is the first time that I'm aware of the WMF
directing the users to remove an article due to concerns like this.
(Thats not to say that it hasn't happened before, ... such things
don't tend to leave obvious public records).

The CDA argument is completely spurious. As Mike said, the case law
says otherwise (Zeran v. AOL).  The theory that service providers must
be totally hands-off in order to retain immunity is a common piece of
slashdot armchair lawyer idiocy. Usually they chalk it up to "common
carrier status" but now it seems to be fashionable to chalk it up to
CDA 230. The irony is that CDA 230 is a big part of the reason why
that isn't true.

One of the biggest effects CDA 230 had was reversing the judicial
trend assigning responsibility for posts to providers who perform any
form of moderation (For example, Stratton-Oakmont & Porush v. Prodigy
which is no longer good law).  Today, if the provider didn't have
knowledge of the libelous material posted by a user then you shouldn't
expect them to be held liable no matter how censorious, non-neutral,
or even sloppy they are. Moderation, including incomplete or
incompetent moderation, doesn't break the immunity provided by S. 230.