[WikiEN-l] Libel law

[Chip Berlet]

The advantages of having a son in law school who specializes in computers...
 
Usual disclaimer -  not by an attorney, not a legal opinion, research just for information and discussion:
 
= = =
 
Britain and America have separate standards for publication. America
follows the single publication standard for statutes of limitation:

Here is the American rule:

Van Buskirk v. New York Times Co.,  No. 00-9220 (2nd Cir. 2003).  The
Second Circuit applied the single publication rule to statements posted on
the Internet. Following a broadcast of a news special alleging misconduct
by the American military, John Plaster wrote a letter to the New York
Times stating that the allegations were untrue and identifying Robert Van
Buskirk as the source of the untrue allegations. The letter was published
in the newspaper's editorial page and posted online by Plaster. Two years
after the editorial page letter was posted on the Internet, Van Buskirk
sued Plaster and the New York Times for defamation. Applying the single
publication rule, the court dismissed the action because it had not been
brought within one year after the article was first posted on the
Internet.  

Here is the British multi-publication rule:

Loutchansky v. The Times Newspapers Limited,  2001 EWCA Civ. 1805 (England
and Wales Court of Appeal, 2001).  The Court of Appeal held that a
newspaper's online archive does not enjoy a qualified privelege with
respect to defamatory material. The court's ruling confirmed that
defamatory content made available online will be considered to be
republished each time that it is accessed by users. The defendant printed
articles identifying the plaintiff as "a suspected mafia boss." After
publication, the articles were posted on the defendant's website. The
court held that although the printed articles were protected by a
qualified privelege to defamation regarding matters of public interest,
the online archives were not protected by the privelege. The court noted
that continuing to post the material without a warning that the
allegations may be untrue was not only defamation but also irresponsible
journalism.  

The two courts reached very different conclusions. Under British law there
is a new publication each time the material is accessed. This has the
potential to make a lawsuit possible decades after the first publication.
Under American law the first publication starts the statute of
limitations. Thus after 1 year, there is no longer any liability. I am not
sure what happens when articles are edited. It may be that this is enough
to restart the statute, or it may only start again for the new information.


On the issue of liability - in America it is unclear:

Sabbato v. Hardy,  Case No. 2000CA00136 (Ohio Ct. App., Dec. 18, 2000). 
An Ohio appellate court reversed a lower court's decision concerning
immunity under Section 230 of the Communications Decency Act (CDA). Hardy
operated a website that allowed users to post and read opinions on the
website. Sabbato sued Hardy for defamatory comments that were posted on
his website. The appellate court found that the lower court had erred in
granting Hardy immunity under the CDA. The court determined that Hardy was
not automatically entitled to immunity under Section 230 of the CDA
because the complaint alleged that Hardy had personally participated in
creating the defamatory comments. 
Opinion at http://legal.web.aol.com/decisions/dldefam/sabbatodec.pdf

Schneider v. Amazon.com Inc.,  31 P.3d 37 (Wash. Ct. App. 2001).  A
Washington court held that Amazon.com was shielded by the Communications
Decency Act (CDA) and not liable for statements posted by a third party on
its website. Several books written by plaintiff Jerome Schneider were for
sale on the Amazon website. Amazon also posted several book reviews that
criticized Schneider personally. Schneider requested that the reviews be
removed; however, Amazon failed to take any action. Schneider filed an
action for defamation and other torts. The court found that Amazon
qualified as an interactive service provider under the safe harbor
provision of Section 230 of the CDA. As such, Amazon was not liable for
statements posted on its website by third parties. 


Given Wikipedia's editing policy, it is unlikely to qualify for the safe
harbor protection under the CDA. Amazon.com does not edit posts, and thus
is essentially immune from suit. While the other case found an editor
liable, that was because it appeared from the complaint that he had
participated in the libeling. Wikipedia, unfortunately, falls between the
two extremes.

Internationally, it is even more confusing. Wikipedia has the potential to
be sued in basically any jurisdiction for the content that it posts online
and the standards vary.

Here are two articles that give a good overview of defamation on the
internet.

http://www.internetpolicy.net/practices/libel.shtml
http://www.murdoch.edu.au/elaw/issues/v8n4/nicholson84_text.html

If all an editor did was hit save, I do not think liability would attach,
but if any editing was done, even simply reading the page, there is an
argument that they are liable.
 
-Robert Berlet

________________________________

From: wikien-l-bounces at Wikipedia.org on behalf of Steve Block
Sent: Thu 12/8/2005 4:54 AM
To: English Wikipedia
Subject: Re: [WikiEN-l] Libel law



Ray Saintonge wrote:
> Steve Block wrote:
>
>> geni wrote:
>>
>>> On 12/7/05, Steve Block <steve.block at myrealbox.com> wrote:
>>>
>>>> Is there any thoughts on private individuals?  Are we open to libel
>>>> suits if we edit a page containing a libellous statement and fail to
>>>> remove it completely from the edit history?
>>>
>>>
>>> I don't think there are any legal presidents in that area.
>>
>>
>> No, but it would be nice to hear people's opinions, and also nice to
>> hear if any legal opinion had been given to Wikipedia regarding this.