46 Pages Posted: 17 Jul 2006
Wikipedia is an amazing resource that resembles an online encyclopedia. Critical to its success is its process: it is editable by anyone with access to its content. As the project hurtles forward towards its humbling goal of providing the world with 'free access to the sum of all human knowledge,' questions regarding its veracity and accountability become increasingly insistent and important.
In the wake of the Seigenthaler biography controversy, many commentators suggested that Wikipedia should be able to escape liability for defamatory content pursuant to the immunity provided for in 47 U.S.C. Section 230(c)(1), enacted by Congress as part of the Communications Decency Act of 1996. Unfortunately, those commentators do not provide a detailed roadmap to that conclusion. Additionally, courts interpreting Section 230(c)(1) have not been self-conscious or precise with respect to their choice of several alternative approaches to the ambiguous statutory text of Section 230(c)(1). This Article is an attempt to bridge those gaps by offering a taxonomy of those available analytical approaches while exploring ambiguities relevant to that application in light of Wikipedia's unique facts. Namely, the open contribution model and the accretion-based continuous 'publication' system raise issues heretofore unexplored in Section 230(c)(1) cases: (1) What is an 'entity,' as it is used in the definition of the critical phrase, 'information content provider'? and (2) What is the appropriate level of generality to apply to the term 'information'? While this Article concludes that the Wikipedia will prevail on the basis of Section 230(c)(1) immunity, it offers a few thoughts for shaping its code in the shadow of the law.
This paper will be presented in an abbreviated form at the Wikimania 2006 conference in Cambridge, Massachusetts.
Keywords: Wikipedia, defamation, Section 230, Communications Decency Act, CDA, cyberlaw, Internet
JEL Classification: K13, K29, O39, K1, K2, K42
Suggested Citation: Suggested Citation
Myers, Ken S., Wikimmunity: Fitting the Communications Decency Act to Wikipedia. Harvard Journal of Law and Technology, Vol. 20, p. 163, Fall 2006; Berkman Center Research Publication No. 2006-08. Available at SSRN: https://ssrn.com/abstract=916529
By Peter Menell