QUOTE(thekohser @ Mon 23rd May 2011, 8:35am)
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QUOTE(Kelly Martin @ Mon 23rd May 2011, 7:52am)
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The only way you lose Section 230 protection is if you explicitly direct people to provide or generate tortious content. Section 230 protection is not waived or breached by exercising after-the-fact editorial control, to any degree; the case law is crystal clear on this.
Excellent point, Kelly.
Sure. However, be wary of "only way" comments. If it could be shown, for example, that after-the-fact editorial control was selective, that Wikipedia was gaining benefit by avoiding taking reasonable measures to prevent the posting and maintenance of a tort, then it's possible that the veil of protection could be pierced. That would not be easy to prove. But I wouldn't call it impossible.
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But, a question. Do you think a crafty lawyer could demonstrate that hundreds of thousands of Wikipedia articles are, by their very nature, a public nuisance and invasion of privacy of private individuals, and that by not installing available safeguards (like Pending Changes) the WMF may be directing people (in a de facto way) to continue libeling private individuals?
There is little limit to what skill and craft can accomplish. I'm thinking this would take a class-action suit, really, because what the plaintiffs would be trying to show would be a pattern, repeated across many cases. The legal theory would be that by setting up and maintaining conditions that encourage libel, they are amplifying traffic to the site, thus being able to make more of a case for soliciting donations.
A skillfully filed suit would cost the Foundation quite a bit. I don't see it as being in the interest of the Foundation to maintain conditions that would encourage this. Overall, the Foundation is, my opinion, better served by finding better ways to fulfill the stated mission and promise of Wikipedia. I've long stated the problem this way, personalizing it to Jimbo:
Jimbo has a tiger by the tail. He knows that the tiger is doing damage, but is terrified of what will happen if he acts. If he kills the tiger, there goes the source of energy and labor for Wikipedia. If he lets go of the tiger, it may eat him.
The Foundation is afraid that if it interferes in content decisions at Wikipedia, beyond satisfying legal requirements per take-down notices, etc., they will offend the volunteer force on which they completely depend. They do not have the resources -- even if Gardner were to donate her entire salary -- to pay for editorial supervision of Wikipedia. In my view, what the situation needs -- and has long needed -- is efficient process for determining what might be called "true informed community consensus." That has been resisted, from the first day it was proposed (an experiment that *might have* led to this), and my conclusion is that it is resisted for the same reason that reforms leading to fair distribution of power are almost always resisted by those who hold excess power.
In an established organization, then, this kind of reform must come from the top, unless something that I've never seen happen were to happen for the first time: bottom-up organization using the principles involved, creating a separate power structure that is organized for efficiency and intelligent decision-making. It's not likely, because few even understand why it would be needed. On the other hand, my structural theory indicates that this could start with only a handful of users who agree to cooperate, putting in place a scalable structure that could survive and function even if membership soared into the millions.
Isolated disgruntled users who have had "enough" can cause damage beyond their numbers. Imagine what would happen if a dozen disgruntled users were organized and coordinated and disciplined in how they proceeded, and if they included people who truly understood the structure, and its weaknesses. Then imagine what a hundred users could do if they saw beyond their immediate discontent, returned to the original purposes and goals of Wikipedia, and began acting, again with coordination and discipline in a structure that efficiently seeks consensus among all participants, maximizing it, to bring about the realization of those purposes. Esperanza was shut down precisely because off-wiki decision structure had been set up, it *might* have shifted the balance of power, and it was in a weak period, vulnerable to the attack. Esperanza was vulnerable, my opinion, because they did not use advanced structural techniques, they used classic board or executive-committee-oriented structure. Had they been ready for what was coming -- they absolutely did not expect to be attacked as they were -- they'd not have been vulnerable. They assumed that they could have most of their activity on-wiki.
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I think about the Roommates.com case (if I can call it that), where a mere drop-down box that included sex, family status, and sexual orientation was enough to trigger a Section 230 test. It doesn't seem too terribly difficult to envision a similar test being put to a repeated host of libelous content that elects not to deploy an anti-libel tool that is readily at its disposal.
"I certify that the content I am providing is not libelous, and I understand that, if a court requests it, otherwise private information about my access of Wikipedia will be provided, so that a plaintiff may determine my real identity, and so that I can be held responsible."
Think that would slow some of these wikipediots down?
That could simply be in a user agreement, with a checkbox required for all edits. A user could provide a generic agreement, and then the checkbox would not appear with each individual edit. As it is, there really is no user agreement, beyond a surrender of copyright noticed with each edit. Maybe.
Relevant here, "vandalism" is not defined. If I think that Wikipedia is a giant role-playing game, all moves are part of the game. That the site pretends to be an encyclopedia is just part of the game. Professor Pierce did not do anything illegal. And I notice that "Zoe" was promptly defunct. Vandals 1, Admins 0.