Every discussion about this focuses on section 230, which is a US law (yes?) and which is about website, i.e. hosting platforms. Hosting platforms are irrelevant. So is 'Wikipedia', because Wikipedia is an encyclopedia, and you can't sue an encyclopedia.

But what you do have is an 'unincorporated assocation'. An association, because there is a very definite association or organisation of Wikipedians who have their own rules, disciplinary procedures, internal hierarchy and so on. And 'unincorporated' because the organisation is not a legal entity in its own right. In which case, any legal liability (as I understand it) is 'joint and several'. You can pursue any individual Wikipedian for a liability of the whole association as if they were jointly liable and it becomes the responsibility of the Wikipedians to sort out their respective proportions of liability and payment. If I am successful against that one Wikipedian, he or she must then pursue the other Wikipedians for a contribution to their share of the liability.

Here, 'Wikipedian' would mean any member of the administration, i.e. administrators, bureacrats and any member of the Arbitration committee.

The other consideration is the Empress case http://www.corporateaccountability.org/man...r/law/cause.htm

This was where a company maintained a tank of diesel fuel in a poorly secured way that allowed a vandal to leak the contents into a river. The House of Lords held that



I am seeing a parallel here. Because of the activities of the Wikipedians' assocation, statements on Wikipedia are regarded by the ordinary public as reliable. But vandalism - the insertion of untrue statements - is not an extraordinary event but a normal and familiar fact of life. The "accumulation of polluting substance" is all the vandalism that the association has successfully contained.

And if any of this pollution leaks out, the Empress judgment requires us to blame the Wikipedians, not the ordinary vandals who were the proximate cause of the leak.

Tough to apply a British case to U.S. case law, though.

I'm still saying the "right to privacy" -- the same principle that allows women to terminate the life of their fetus -- is the best weapon I've seen explained to me, for trumping Section 230.

British law could get all the British Wikipedians.

So your plan is to hold all wikipedians accountable for the sins of a few? Brilliant! Presumably by the same logic you'd be in favour of all Serbians being tried for the war crimes committed during the 1992-95 Bosnian War instead of just Ratko Mladic?

Only members of the administration, which you are not. That is the whole point of 'joint and several'. Everyone who forms an assocation to commit evil is guilty of evil.

No, I'm not. No need to rub it in though.

This is nonsense.

There's no way a bunch of people on a website are joint and severally liable for the impact of that website.


You'd need to show:
a) harm done to you
b) a chain of causation between the harm done and the person you are holding liable
c) A duty of care
c) fault

There is no way that you'd win against any individual unless that individual has actually harmed you.

"Unincorporated association" covers things like clubs or societies, not a bunch of people who happen to be engaged in the same activity. It is a bit like saying that if I get mugged by a football fan, I can sue a random football fan and leave the fans to sort out who is paying.

No liability without fault, is the basic premise.

The Empress judgment is a judgment about causation.



I'll look into that but the Empress judgment was about the containment of noxious and polluting material.



The fault (in that case) was insufficient precaution against vandalism



I don't understand where banning comes into this. I had cases like this http://wikipediareview.com/index.php?s=&sh...ndpost&p=274482 in mind.

That's a dud analogy. PD has said repeatedly that he's going after the admins, not the totality of editors. An admin by definition has vastly more responsibility for what goes on than a random editor. Having said that, one admin on her own can often cannot achieve much in the face of a well-organised gang of editors.

And i have already said these are not a "bunch of people on a website". There is a hierarchy, a code of behaviour (much as the cosa nostra[ have a code of behaviour, rules, elections, the whole thing. As much of an 'association' as you could get. Wikipedians love hiding behind this 'bunch of people on a website' nonsense.

There's undoubtedly a hierarchy, but it's interesting how many of those in positions of authority are in denial, spouting their thread-bare "mop" or "janitor" analogies.

One shouldn't discount conspiracy laws either.

Conspiracy to do what, who is conspiring, and how do you prove a conspiracy in civil law?

Wikipedia is fairly clearly an unincorporated association. The problem is deciding who is a member of that association. You'd have a hard time claiming all editors are members. It would be easier to make the claim that all admins are members, and there's a fairly trivial case for making the claim that the ArbCom is an unincorporated association. If I want to try to pin collective liability on someone for something that happens on Wikipedia, it's the ArbCom that I'd target. I imagine it wouldn't be that hard to convince a judge and jury that the ArbCom is, or ought to be considered, the "editor" of Wikipedia and legally liable for its content, lock, stock, and barrel.

Except for the fact that ArbCom never pronounces on content issues, and is no sense an "editor". Other than that your argument makes perfect sense.

It's not whether they are an editor or not; rather, it's a question of whether one can convince a judge and jury that they are Wikipedia's editor. The notion that an encyclopedia doesn't have an editor or editorial board is absurd; since an encyclopedia has to have an editor, ArbCom is the obvious choice. The only other option is JImmy Wales.

What's absurd is your argument that a web site must have an editor.

This theory sucks.

The precedent cited would hold the Foundation responsible for negligent maintenance of a nuisance, and individual editors who have posted or assisted in the posting of libelous content, likewise and more directly responsible. The veil of anonymity would be rather easily pierced, if a plaintiff acted quickly.

"Wikipedians" have no legal responsibility to do anything, it is impossible to be a legally negligent Wikipedian, unless one takes an action that is negligent, i.e., posts or restores libel. The WMF does have that responsibility.

The theory that the WMF is a service provider is bogus. If it's a service provider, what's the contract? Where is the binding consideration? No, Wikipedia is an encyclopedia, and the WMF is legally responsible for the content, and that it chooses to crowd-source the content is simply its choice. The question is how closely the WMF must monitor for or protect against libel.

This is all cloud Kookoo lawyering. There is just no way any UK court is going to hold an individual liable for anything other than their own specific action. The whole notion of unincorporated bodies and joint and severable liability won't fly. The response would be - sue the person who did the wrong, or sue the person operating the website (oh, you can't).

UK civil law has a strict doctrine of no liability without fault - and you if you can't show that the individual is at fault the game is over. There is no way an admin would be counted as an officer of an unincorporated body, when the admin is one of 2,000 and has no more "say" in governance than any random person who creates an account. Maybe an arbcom member, but a UK court is not going to get past the fact that you are suing an individual, you can't show any personal fault, and you can't demonstrate that they owe you any particular duty of care, and that the website is owned by a multi-million dollar organisation in the US, who you are not suing. It won't fly.

No. That's not "Wikipedia," legally. Question: who owns the domain name? The trademarks? Who has legal control and responsibility for content?
Nope.

You know, it amazes me to see how few understand how Wikipedia works. Communities *never* make decisions, individuals do, either purely as individuals, or as advised.

(The idea that "the community" has made a decision is one of the Wikipedia myths. There is no mechanism for the community to make a decision. To make the point, I created The community (T-C-L-K-R-D) , which is, of course, blocked. (Disclosed sock, not acting as a role account, merely existing with *the possibility* of becoming a role account, quickly blocked with no misbehavior]. The community is blocked. Which is the situation, there is no way for "the community" to act. Individuals log in and act.

There are such things as bound servants, but generally in democracies, people are not slaves and are personally responsible for what they do. Servants are expected to perform as ordered, but a community does not "order." Individuals do. When ArbComm makes a decision, it is determined by and enforced by?

It is enforced by those who choose to enforce it, and ignored by those who choose to ignore it. In the wiki system that Wikipedia uses, every action requires a responsible actor, who interprets the requirements of policy, the suggestions of guidelines, the expressed opinions in discussions, the votes of ArbComm, and all of that requires interpretation. Who interprets?

The executives do. The actors. The ones who push the buttons.

But since none of the "Wikipedians," i.e, "the community," have any legal authority, neither do they have any legal responsibility. ArbComm may advise the board, which does have legal authority and responsibility. But ArbComm is not the executive body, the board is, and acts through its servants.

If there is a tort, you could possibly reach to anyone who aided and abetted the tort, if you can show a duty of some kind.

I don't think that a duty could be shown merely because one had the power to act, not in the case of volunteers, i.e., the Wikipedia situation. Thus if there is libel, one could reach to the one who writes it or submits it. If it were removed, and one replaces it, one might be liable. These are "specific actions." I don't see any protection preventing it, other than impracticality.

But the deep pockets would be the WMF. The WMF maintains the site, and benefits from its function. The WMF has *chosen* to use crowd sourcing, to allow the community to take operational editorial responsibility. If the publisher of a newspaper hires Joe as an editor, and Joe arranges to print libel, if the publisher does not provide adequate supervision, who gets sued? It's pretty obvious: Joe and the publisher. If the publisher decides to save money by not paying Joe, does this protect Joe and/or the publisher from libel claims? I don't think so!

I think that this situation hasn't turned into a disaster, yet, because someone with a big enough pocketbook, and enough motivation, hasn't come along yet. If we look at the major conflicts that have been seem, it seems to be, now that I think of it, that the side with the most money is the side that was treated most favorably by Wikipedia. Gee, what a coincidence!
This is correct. However, having said that, I've certainly seen administrators libel individuals, it happens all the time, and it passes practically without comment. There would be an issue of showing harm, not necessarily easy to do.

Admins by and large do what they please and are unaccountable, so what's new?

The fault would be negligence. And the Empress case showed that it was not the anonymous vandal who directly caused the pollution who was liable, but rather the organisation that provided the conditions for this to happen.

Another parallel is the Sicilian mafia. For years, it was believed that the mafia did not exist, and that the criminal activities were just individuals with a 'code of hounour' rooted in Sicilian rural values. Research in the 1980s showed that this was not the case, and the way was open to prosecute the mafia as an association. Note that the Mafia is not a legal entity. A legal entity is merely one that is 'incorporated' and thus has a legal status different from any individual. An unincorporated association, by contrast, consists of the individuals who are thus associated.

The WMF, and individual chapters could also be a target, so long as you could prove controlling interest, significant influence etc. That is why they are always careful to emphasise the WMF simply as an enabler.



You would have to be 'actively' associated, which makes the number much smaller.



You miss the whole point of my original post, which was cases where some anonymous vandal is the direct culprit, but the 'association' which failed to prevent the vandalism is held legally liable.

No. 'Crowdsourcing' is simply a bunch of statements entered onto Wikipedia, some true, most of them false. The administrative community has taken upon itself to filter these statements, so that only the true ones remain. Thus they are effectively choosing the content of Wikipedia. If they allow one of the false statements to remain, they have chosen to make that statement, as a group. So they are responsible, not the anonymous vandal who made the original edit.

Nah, what's absurd is that Wikipedia purports to be an encyclopedia, yet doesn't have an editor.

The "administrative community" is just a part of the "crowd." The crowd is a mob, but has developed its own internal structure, so it's become an "organized mob." So? The owner of the site is responsible for what it maintains for public access.

I'll testify that most of the statements entered by the crowd are true, by the way, having done quite a bit of Recent Changes Patrol. If this were not the case, Wikipedia would have slid deeply into the muck long ago. As it is, it's only some percentage in the muck. The rejection of Pending Changes was a major event, signaling, to me, even more deeply, the hopelessness of the situation if no major structural change is made.

And this is how it is different from any ordinary pollutant. With ordinary pollutants, the more you let out, the worse the damage is. With Wikipedia, the less is let out, the more the public trusts it, the greater its authority. Thus when a single, bad lie is let out, the damage is far worse than if you or I had said it, or even if the Daily Mail has said it.

Thus it is because of its very success in limiting the leakage of this deadly pollutant, that the damage is so great when any escapes.

Thus the administration are directly responsible (by limiting leakage) for the huge damage they cause when any leaks out. The fact that the proximate cause of the leakage is vandalism, is irrelevant. The administration is at fault twice over. Once, for storing the stuff up and allowing it to ferment into something fatal and toxic. Twice, for negligience in allowing it occasionally to escape. What more fault could there be? Sue the most prominent of them now, perhaps starting with the most senior ones, and let them chase the others.

This is true.
There is a conflation here of two different kinds of administration. The legal kind is the administration of the wiki by the WMF. The informal kind, not responsible except personally for positive commission of wrongs, is the "administrative community." Or just the "editorial community," i.e., the pure crowd.

Suing the "most prominent" administrators, or ArbComm members, would be a fool's errand. Only if they directly libelled could they be held responsible. Now, I've seen statements by arbitrators that could be that. I see no protective immunity from liability. The error here is in the assertion of a duty to act responsibly, not merely to refrain from acting to harm.

The site owner has a legal responsibility to prevent the usage of the site to harm. By pretending that the work product of the crowd is an encyclopedia, based on verifiable source, the site owner receives donations and grants. They profit from it. They do, in fact, operate based on a theory of responsibility, insuring that lebl is taken down when proper attention is called to it. Sometimes. Sometimes they make a different argument, and, in this, they can be held responsible.

Suing individual users who may be broke, effectively judgment-proof, is not an attractive idea. Suing the foundation is more practical, even though the foundation may be better defended. Note that I'm not recommending this, it would depend on the specifics of a case, or of some class of cases.

Nevertheless, some public lawsuits against individual users for libel would be ... interesting. It could, among other things, very publicly -- and legally -- out them. The case better be good, or else a counter-suit could well be in order!

On Wikipedia most editors and administrators are hiding behind one or more screen names. This is not only a problem with Wikipedia. In fact, Wikipedia has very low priority when it comes to this problem. The last few months have put this problem on the agendas of governments from China to NATO countries. Everyone is talking about the problem, but no one is even mentioning Wikipedia in connection with this problem.

It is obvious that it is too easy to hide your identity on the Internet. In previous years we've seen this problem with malware, scareware, viruses, rogue pharmacies, phishing attacks, and spam email — most of which have been increasing lately. But something new has been added in just the past few months. It started with P2P and Pirate Bay, and now it's Wikileaks and Anonymous and LulzSec. Governments are suddenly concerned because state secrets and big corporations can be attacked and hacked with impunity. Copyrighted material, intellectual property, memos, internal emails, and other assets and secrets are getting stolen. This has enormous economic implications. After all, the Internet is by now a major factor in the economies of developed nations.

The top figures in Anonymous, and hacker groups like LulzSec, use chains of servers, many of which are registered through proxies in various country domains that do not have good relations with the West. It is very difficult for the FBI to prove who is behind the keyboard. Tracing a particular path may require the cooperation of authorities in Russia, Liechtenstein, or Ukraine. Authorities in those countries may not even have the Internet infrastructure access needed to follow up on information requests, even assuming that they are willing to try. The FBI seems helpless against the major players. All they can do is collect some IP addresses of fairly clueless teenage LOIC users, and get a warrant to impound their computers so that they can be examined for evidence. That's fairly ineffective. It doesn't take too much brainpower, even for teenagers, to figure out that any evidence can be hidden on a flash stick and kept someplace where the FBI won't be looking. For every computer the FBI impounds, ten more basement-dwellers decide that LOIC is fun and exciting.

Before Congress gets around to reconsidering Section 230, I predict that the thrust of legislative and judicial action concerning the Internet, in most developed countries of the world, will be to make it more difficult to use the Internet anonymously. Service providers, for example, could be required to verify the identity of account holders with a photo ID, and place this information online for realtime referral of the IP address assigned to them at any point in time. Proxies can be made illegal. Deep packet inspection could be installed on the Internet for access by law enforcement.

I predict that anti-anonymity measures will be legislated for all Internet users within ten years. At that point each individual Wikipediot will be liable for his or her edits as an individual. The Wikimedia Foundation might even be required to install some sort of IP-to-realname lookup system for all of its editors and administrators.

That's where the action will be for the next ten years, because the big corporations will demand it. When corporations speak, governments listen.

Assigning dedicated IPs to individual persons is actually one of the advantages of IPv6, for those who would consider that an advantage.

Yep. I predict IPv6's as eventually replacing your SSN or passport number for most purposes.

Suppose knowing your SSN meant I could call you on your phone (cell or otherwise) anytime I wanted? How convenient is that?

Why, as convenient as Hell...

Danish police propose that anonymous Internet usage be banned

The Danes can propose whatever they like, who cares?

Oh there's nothing like a Dane! Nothing, in this world, like a Dane.

Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous net problems, or to take arms against the IP troubles, and by opposing end them maybe? To try: to legislate some more; and by a law to say we end the heart-ache and the thousand natural shocks that meatspace is heir to. 'Tis a consummation devoutly to be wish'd. And we're talking about a lot of people with no consummation, let me tell you.

You know, that other Great Dane Niels Bohr had some great ideas he proposed to Winston Churchill. But he mumbled with an accent and had long hair and Churchill didn't like him, and couldn't understand him, and didn't like what he did understand.

Doesn't everyting taste better with bacon?

How are they going to enforce this?

It is never going to pass.

I don´t know how it is elsewhere, but in Scandinavia it is common to get a wide number of suggestions before any new laws are passed. ("In the interest of democracy", bla, bla). Btw, it is not the police, but a "work group" under the Ministry of Justice which had suggested it (According to this article. The comments are, hmm, quite undiplomatic: "Have they been drinking from the chamber pot?" etc. )

There has been no big discussions in the media about this...ie: its dead as a dodo.

I think it's worth noting that Peter's idea, valid or not, doesn't rely on UK law. Unincorporated associations are recognized under US law too.

The only question is whether "Wikipedia" is an unincorporated association. If it is, the lawsuit should name one or more of its officers - and I think there's a decent argument that Admins are officers; maybe Arbcom, as you say. The officer(s) named do not need to be personally responsible for the fault.

Nevertheless, I am inclined to agree with Abd that the nonprofit organization WMF is a more likely target for a lawsuit.

I should add that, in general (because we don't know which jurisdiction we are talking about) it will not be possible to enforce a judgment against individual officers and members of an unincorporated association, but only against the association's property. Wikipedia's servers maybe?

There is no question in my mind that the collective of Wikipedia editors comprise an unincorporated association; clearly that is an "association" (a group of persons working in concert toward a common purpose), and it is clearly not incorporated, therefore the editors of Wikipedia comprise an unincorporated association. However, this doesn't mean much: the members of an unincorporated association are individually liable for their own actions, and not generally liable for the actions of other members. Notably, (except in Michigan and, in certain contexts, New York), unincorporated associations cannot sue or be sued; an unincorporated association can only sue or be sued by way of its members, who must sue or be sued in their own names. Unincorporated associations also do not own property in their own right; rather, any property "owned" by the association is in fact owned in joint tenancy by the membership, and held in beneficial trust for the association by the association's treasurer, or other such officer as the association should designate. (This comes up fairly frequently with respect to unincorporated churches; in such cases the church building and its appurtenances are the legal property of the members, jointly and severally.) This is why, in a suit involving an unincorporated association, one typically sues the treasurer: the treasurer is typically the record owner of property in which a tortfeasor member has a legal interest, and the treasurer must therefore be named in the suit, in his capacity as a trustee, even though he has no personal liability in the matter.

Even if you don't accept that the collection of editors of Wikipedia comprise a proper association due to boundary issues with defining who is a member, the collection of administrators certainly is: members are inducted by a well-defined, community-driven process, a roster is maintained, and members are subject to discipline and possible ejection by another defined process. The Arbitration Committee is even more obviously an unincorporated association; you can argue that it is merely a standing committee of a larger association but the legalities (especially from the outside) are almost entirely the same either way you look at it.

Within an unincorporated association, there is no collective liability; you cannot sue the officers of an unincorporated association for the conduct of individual members unless you can show that those officers either acted in concert with the tortfeasant member, or had a duty to supervise the tortfeasor and failed in that duty. Of course, voting for a motion to authorize or command tortious conduct would amount to acting in concert, and even failing to resist the adoption of such a motion can be seen as "acting in concert" as even members who vote against a motion are considered to have consented to it by virtue continuing in their membership after its adoption.

The WMF is virtually impossible to sue for the actions of Wikipedians, either acting alone or in arbitrary combination, because it has cast its legal role as that of "service provider" and thus can cower under the nearly inpenetrable shield of Section 230 of the CDA.

The reality is that suing Wikipedians is largely pointless: most of them are judgment proof anyway, and you'll spend a whole lot of money trying to figure out who they are. If you really want to sue someone, I'd suggest suing the ArbCom, jointly and severally, for negligent supervision. It would be a hard case, but at least identifying and serving them isn't that terribly hard. We know who most of them are, at least. Plus the deposition of Cary Bass, in which he explains why the Foundation didn't follow its identification policies for holders of advanced rights, would be amusing, and could even lead to the possibility of wire fraud or identity theft charges against any people who have submitted falsified identity documents to the Foundation.

Jimmy speaks out:
http://www.bbc.co.uk/blogs/pm/pmprivacy-wales.shtml

Page me when there's a transcript. Listening to Wales talk causes me to lose braincells faster than I like.

Transcript there now.

See, even Jimbo alludes to the fact that Wikipedia is a publication, and that the Wikipedia community is its publisher, and that he is part of it in the "we" sense. Section 230 that says the WMF cannot be held to account as a publisher is crumbling for the Wikimedia Foundation. Thank you, Jimbo.