On another thread, Doc glasgow wrote of his legal concerns over his involvement in Wikipedia's OTRS. The OTRS are a group of editors that "organize, handle, and respond to e-mails sent to Wikipedia and the Wikimedia Foundation" - mainly dealing with biography victims.



On Jimbo Wales's talk page, someone asks a question of Jimbo regarding the legal issues surrounding Section 230, and Flagged Revisions.

http://en.wikipedia.org/w/index.php?title=...467#Section_230



How is this all going to play out?

It won't. Cases involving AOL have already determined that "community moderators" of any sort, whether volunteer or paid, do not breach Section 230 protections for the service provider. This is a nonstarter.

Really, people, do some research into the caselaw before you spout off about Section 230. The discussion on this site about Section 230 is woefully ignorant, and you guys routinely go off on absurdly ignorant rants that are completely unfounded in the case law to date. The only way to breach Section 230 is to show that the service provider actively encouraged people to produce injurious content.

While Section 230 very clearly, and pretty unassailably, immunizes Wikipedia, it does absolutely nothing to immunize OTRS volunteers; even if it did, they'd still have to make and defend the motion to dismiss, which costs money that I doubt the Foundation would make available to its "valued volunteers". And, of course, Section 230 is of no value to people who are not resident in the United States.

Well, correct me if I´m wrong, but what makes the OTRS volunteers so vulnerable is that WP have their names, right? And will likely throw them to the wolves (=give their names to the lawyers) if anybody sues WP for defamation.

Which will, eventually, leave OTRS with volunteers who are broke, (Not "suable" )...or who are living in areas which don´t give a damn about US law/defamation law. Or who are insane.

And if I have understood it correctly: editors implementing the "flagged revision" ..at least if they are compelled to give their names to WP, will be in the same position?

I think the best indication of the way to defeat Section 230 immunity is illustrated in Fair Housing v Roommate.com. Because each of a three judge panel writes a separate decision I thought it would be helpful to make a table to analyze each Judge's position. As you can see from the table the way to get the needed "3 cherries" with each of the three judges to find that no immunity applies is to find a situation that "creat(ed) or develop(ed) the forms and answer choices." In other word the greater role the site has in the shaping of content the more likely that immunity does not apply. Flagged revisions is probably a significant step in that direction.

Wikipedia would be only too happy to provide alternate defendant (admins and editors) in their effort to deny their own responsibility. As WMF's shameful treatment of editors in the Video Professor case demonstrated Wikipedia's editors can expect no protection from WMF in the event of a plaintiff looking for a defendant. A more detailed discussion of that matter is found here.

There does seem to be a lot of confusion of wishful thinking with reality around here when it comes to hoping/expecting the imminent downfall of Wikipedia in the legal system.

I disagree. Flagged revisions are just another form of community moderation, not distinguishably different from moderated forums, which have already been decided not to breach Section 230 immunity. What would be a step in that direction would be if WIkipedia implemented a "libel-o-matic", in which the Foundation provided a form that would facilitate generating MadLib-style libels. They could do this with templates, but it would have to be a template provided by the Foundation itself. Perhaps if Brion inserted such code into the infobox biography template or something.

Now, the moderators who have flagging rights, THEY will be on the hook for lawsuits, and they will NOT have any defense in Section 230.

As WR has only existed for 3 years you may be under some kind of illusion about the time scale involved in the creation of law through the courts.




We disagree less than you might think. Yes the "community/WMF" separation argument needs to be strongly pushed by WMF. It is in the foundation's interest at the expense of "the community" but it is a sham and a fiction.

I doubt that the Foundation intends to declare "flaggers" as being a privilege that would require disclosure of real name to the Foundation; that policy is grounded in Wikimedia's privacy policy, and flaggers do not have access to private information.

The Foundation would, however, have access to the IP address information of all users of the flagging right, and would be required to disclose that information in the context of litigation. Wikipedia's aggressive efforts to prevent the use of anonymizing proxies when editing Wikipedia makes it likely that a litigant would be able to discover the real identity of the holder of the flagging right, or at least of some person connected with the holder in some way.

Flagging is a non issue. A flagger is no more (nor less) responsible than someone who reverts a blanking of libels.

the OTRS issue is more of an issue, because an OTRS volunteer is routinely interfering in contentious articles or denying the requests of offended people. Whilst that doesn't increase their legal liability, it does increase the chances of them standing on the tail of the wrong Mr Angry who has money and lawyers.

The reason I withdrew from OTRS, was not the fear of being successfully sued (which unless you do something malicious, I view as negligible) it was the more likely danger of being dragged into a vexatious lawsuit - or simply cited in a writ. This would cause me stress, embarrassment, and financial outlay that I had no desire to risk. That's even if the case was eventually dropped or dismissed.

I woke up to the fact that if cited in a writ, there was little chance of an e-mail from Jimbo saying "don't worry, our lawyers are on to it on your behalf. You may have made an honest mistake in answering that e-mail for us, but we appreciate the work you do, and we will, naturally, underwrite any legal costs you have. " If I screw up at work, my employer is vicariously liable unless I am grossly negligent, but the Foundation gives no such indemnity.

Wikipedia brought down by a legal case? I've always thought that unlikely. Unless someone goes after named volunteers rather than the foundation. If they do that, whilst they may in the end lose the case, you can bet many prominent wikipedians will head for the hills, when they begin to realise the writ could have their name on it.

You know, I've been in law school for all of five months, so I'm not going to match my legal knowledge (especially of U.S. law) up against that of a lot of people here (and lord knows the phenomenon of first year law students thinking they're lawyers is quite widespread enough already), but it does get my goat when people say things like "I'm not going to do X because it could expose me to liability". Christ, everything we do can expose us to liability. It's not like potential defendants in civil trials are limited to a subset of the population that has decided to engage in specific behaviours for which liability could accrue.

This isn't targeted at Doc; he clearly weighed the (low) potential for liability against the (apparently even lower) utility he derived from his OTRS activities, which is fine. But I get sick of people waving the "potential liability" flag and thinking it's a trump card.

(I'll mix my metaphors if I want to, dammit.)

Edit: I wrote the above before I read Doc's post above, which makes a number of additional good points, especially the following:



At the same time, this raises an additional issue: if "risky behaviours" are going to be defined so broadly as to include not only those for which liability could legitimately occur, but those which could cause you to be baselessly named as a defendant in a frivolous lawsuit...well, you see where I'm going with this.

I've been in organizations that have convened "Risk Management Committees" that have suggested such things as banning ride-sharing and roommate-matching for organization events, because those things could possibly lead to bad things happening for which somebody would sue the organization.

Actually, I view high risk-aversion of the sort that I describe above to be more rational for organizations than for individuals, for the simple reason that an organization can't be sure of the behaviour of its agents, where an individual can be sure of his own behaviour.

Perhaps. But OTRS invites users to stick their arms into the worst parts of the "defamation engine", and to enter into correspondence with people who have either been truly libelled, or are grinding egotistical axes - and offers them no protective clothing. Deciding to avoid that is hardly a paranoid response on my part.

Why do you think many "respectable insiders" make themselves scare when Don Murphy visits this forum? They have no desire to attract his attention. But, if you do OTRS you will meet the Mr Rightly Angries, and the Mr Angry Anyways - and will sometimes have to them to "sod off". That may no be a clever place to put yourself.

The risks are low, but the consequences higher. Particularly if you are, like many wikipedians, embarrassed by your hobby anyway.

Sure. It's always reasonable to measure risk against reward. The behaviour to which I object is treating the existence of risk as in itself conclusive, which is too prevalent among people who don't really understand risk.

That's the ticket !!!

We'll call in OSHA !!!

Ja³

I've never shown any fear of taking on Murphy and other blowhards, here and elsewhere. I've also never concealed my identity in any way. Nevertheless, I've still gone through my entire life so far without ever getting sued.

How many pseuts could a pseud purseu if a pseud could purseu pseuts?

Ja³

Yeah, I've opined on this a few times. Wikipedia is not going to lose section 230 immunity because of a software upgrade. Congress made clear that they didn't want to punish online publishers for exercising prudent editorial control. The Roommates case, where the site encouraged visitors to violate federal housing laws, is a long way from state tort suits.

The more interesting part of what Doc Glasgow posted is that Wikipedia volunteers, including OTRS and arbitrators, are responsible (and potentially liable) for their own acts on Wikipedia just like everyone else. They're almost certainly still on the hook for their own hypothetical torts--even if they think they're doing it on behalf of the foundation.

...or, at least, the more politically-correct interpretations of them, whereby saying "Within walking distance of a synagogue" is engaging in illegal discrimination both on the basis of religion and on disability because some differently-abled persons can't walk. Personally, I feel on a libertarian basis that, particularly in the case of noncommercially seeking a roommate for one's own personal living space, that one has the right to preferences there even if they are racist or sexist. Will the civil rights crowd next be insisting that one can't discriminate in choosing one's friends or dates?

You're not familiar with the case? We're talking about a site that "strongly encouraged" users to select drop-down boxes so that renters can discriminate applicants based on sexual orientation. Posting ads like that in the newspaper would be illegal, but you propose that it should be legal for a service to encourage it on a mass scale online?

Look, it would have probably passed if they didn't design a questionnaire that encouraged people to violate the law. You can write whatever you want on craigslist, but this site went the extra mile with dropdown boxes.


Anyhow, this case doesn't get far with Wikipedia. Maybe if Wikipedia included drop-down boxes for inserting defamation. A more realistic possibility is image uploads (which do use drop-downs), but the CDA doesn't apply to intellectual property anyway, so that's probably not much more mileage than copyright alone.

That is terrible reasoning. Does the court (or any of the fragmented opinions) say that the difference turns of federal law/state tort? Not that I recall. There is no reason to believe that the role of content creation would depend on the nature of the claim.

What the hell do they teach at The University of Chicago. Other than coup d'etats I mean.

It's not reasoning; it wasn't an issue in that case. Just a statement that there are lots of defamation cases that have lost under 230, and I don't think any have gotten past except when the site actually generated the content.

But while passing the section 230, Congress had state defamation torts particularly in mind. See H.R. Rep. No. 104-458, at 194 (1996) ("One of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decision which have treated providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services."). In this case, Prodigy imposed a system of volunteer moderators on its forums so that (some) bad content would not be seen by users. Sound like anything? Flagged revisions is precisely the sort of thing that Section 230 was passed to provide immunity for, and I'm saying that as no fan of the CDA.

At the same time, Congress carved out exceptions for Federal criminal and Federal intellectual property law. Perfect 10, Inc. v CCBill LLC (9th Cir. 2007) 488 F3d 1102 ("In the absence of a definition from Congress, the United States Court of Appeals for the Ninth Circuit construes the term "intellectual property" to mean "federal intellectual property.").

The liability in that case was because the site encouraged and therefore contributed to postings violating discrimination laws.

But, y'know, this is not any kind of advice. I'm just saying I would be quite surprised if Wikipedia lost in the United States under any software configuration.


Incidentally, I'm getting tired of you shitting on me. What did I ever do to you?

This argument cuts in the other direction. If Congress specifically made exceptions for certain federal actions it shows they thought about the extent of 230 ought to apply. By not including federal housing law in the excepted group it argues it ought to be treated the same as state actions. That means that if the court concentrates on the role of content creation in Roommate it would also apply in state tort (defamation) cases.

Totem and Taboo

It occurs to me that Jimbo had already cashiered Section 230 immunity while, at the same time, jeopardizing the project's tax exempt status as an authentic educational enterprise.

Instead of teaching modern concepts for a 21st Century learning organization, Jimbo and his acolytes are inculcating impressionable youth into an anachronistic tribal culture that was already going out of style some four millenia ago.

...but not that of the organization, or that of the other agents? The picture becomes clearer...



Oh sure, as long as they don't stay past dinner or whatever point at which tenant/landlord law begins to apply in your state. No seriously Dan I'm with you on this all the way. If I were Judge Judy this case wouldn't have lasted beyond the first commercial break.

That was me speaking as an idealist, albeit sarcastically. As a realist I'd say anyone ignorant enough to invite a random person off the internet into their home as a key-bearing resident deserves whatever happens to them.

That courts appraise hurt feelings more highly than actual (bodily/property) damages in any cohabitory setting has been proven beyond doubt I'm sure.

I hate people, I really do.

Yes. Cannons of construction and all that.

Does Wikipedia have something analogous to a drop-down box for defamation, or is it exactly the same sort of community moderation that congress specifically intended to provide tort immunity from? It looks to me like the latter. Flagged revisions looks like the cases Congress had in mind, which are very far from select-yer-own-federal-housing-discrimination.

A better case might be a hypothetical site that allowed users to upload pictures, and others to push pre-set buttons tagging them as pedophiles or something.

Hah, I don't suppose userboxes would count.

Yeah, maybe if the foundation made the userboxes. Instead every page started with some user staring at a big blank white field.

Although it doesn't mention Wikipedia, this new article
might be of some value in the discussion.

Quite a nice summary of the concerns - I skimmed through a few comments which include this gem: