Is an Online Encyclopedia, Such as Wikipedia, Immune From Libel Suits?
Under Current Law, the Answer Is Most Likely Yes, But that Law Should Change

Recently, former journalist John Seigenthaler was appalled to discover that the online encyclopedia Wikipedia had, for nearly four months, hosted an article that falsely claimed that "for a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby."

The entry was taken down by Wikipedia - but only after Seigenthaler complained and published an angry Nov. 29 Op Ed in USA Today.^1/ There, he remarked scathingly that in the Wikipedia article, "one sentence was true. I was Robert Kennedy's administrative assistant."

Just last week, Wikipedia announced that it would no longer allow unregistered users to post new content, on the theory that contributors--who have provided some personal information to register--will be more accountable for what they write. But registering for Wikipedia does not even require you to provide an e-mail address - so it's hardly a guarantee of accountability. Moreover, visitors to the site will still be able to edit content already posted without having to register.

What if Seigenthaler had, instead, tried to sue Wikipedia to force it to take down the entry - and to pay him damages for reputational injury?

As I will explain, the court very likely would have dismissed his case - based on a federal statute that confers immunity from lawsuits upon those who host content on the Internet.

Of course, Seigenthaler might sue the anonymous author for libel - but only if he could find him! In Seigenthaler's case, the author was initially traceable only to a BellSouth Internet account - and the Internet Service Provider (ISP) wouldn't reveal his or her name.

(Only recently has Siegenthaler learned that the anonymous poster was actually a manager at a small delivery company in Nashville, who had posted the entry as a joke to shock a colleague.

Siegenthaler learned the identity of the prankster based on the sleuthing efforts of Daniel Brandt, a blogger and critic of Wikipedia, who traced the Internet protocol address of the poster to the Nashville courier company.)

Under the same federal statute, a court would also find immune a chat room or message board host whose forum ended up hosting a libelous posting. But arguably, Wikipedia is different from a chat room or message board: Unlike them, it creates an impression of institutional reliability and veracity by holding itself out as an encyclopedia.

Accordingly, my view is that Congress should seriously consider altering - though not entirely removing - immunity from liability for reference sites such as Wikipedia.

Wikipedia: What It Does

Launched in 2001, Wikipedia has grown into an online reference bank on a wide range of topics. Currently, the site offers several hundred thousand articles or "entries" in English, and thousands in other languages - and is treated by many as the online equivalent of the old fashioned encyclopedia. In fact, the website states that "Wikipedia is the free encyclopedia that anyone can edit."

Wikipedia has such a vast array of content because the site relies on an army of volunteers to submit entries and to edit previously submitted articles. Thanks to "wikis," a form of open-source software, a Wikipedia entry often has multiple, anonymous authors. Anyone reading a subject entry can jump in and edit, add, delete, or simply replace the entry.

This format affords many advantages - but it also has a huge downside: Errors can be introduced into a Wikipedia entry - sometimes, very serious ones - that may not corrected for quite some time. Wikipedia does have a disclaimer informing readers that it cannot vouch for the accuracy of the site's content, but you have to do some hunting on the Wikipedia site before you find the disclaimer.

Moreover, when an article contains false or offensive information, you are asked to edit the entry yourself - which assumes that you know such an entry exists in the first place.

For Siegenthaler, the erroneous biography which suggested he was part of an assassination plot, appeared on the site for months before he learned of it. In cyberspace, that can be a long time.

The Federal Statute That Very Probably Confers Immunity on Wikipedia

Wikipedia's immunity from suit comes from Section 230 of a federal statute known as the Communications Decency Act ("CDA"), passed in 1996. (The Supreme Court struck down part of the Act, but left this provision - which was not then challenged -- intact.)

Section 230's goal is to make ISPs and immune when defamatory material is found on the web sites they host. But it isn't limited to ISPs alone; it also applies to any "provider or user of an interactive computer service," which would include message boards and chat rooms and other places where third parties can post content.

"Interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational systems."

According to Section 230, no such person or entity "shall be treated as the publisher or speaker of any information provided by another information content provider." This is significant, because liability for defamation focuses on publishers; and liability for slander focuses on speakers.

Who counts as a "provider or user of an interactive computer service"? Significantly, online newspapers such as the New York Times don't count. Their service is not "interactive," since only content their editors directly approve can appear on their site. And arguably, they don't provide a "computer service," but rather a journalistic one, anyway.

But ISPs like AOL do count - as the U.S. Court of Appeals for the Third Circuit made plain in its decision in Zeran v. American Online. The effect of Zeran is to confer on providers and users of interactive computer services complete immunity from liability for transmitting the defamation of a third party.

And Wikipedia very probably counts too. It is "interactive"; as noted above, not only can users author, but also alter, its content. And it arguably is a "computer service" - not, say, a journalism service, as that term is currently understood.

Why the Immunity Exists

Why did Congress provide this immunity? There are two basic reasons.

First, Congress simply wanted to encourage free expression on the Internet: This was 1996, remember, and the Internet seemed like a wonderful new thing.

Second, and more importantly, Congress wanted to encourage service providers - for instance, chat room and message board hosts -- to monitor their sites without fear of liability for the postings of third parties.

Without the immunity, such hosts had an incentive not to edit even the most appalling posting that might appear, for fear that by becoming "editors," they would be deemed "publishers" too, for defamation law purposes.

But with the immunity, a host - knowing it is free of liability - may intervene as much as it chooses, making regular efforts to ensure that content it hosts is free from error or harmful content.

What is the Scope of Section 230 Immunity

Should ISPs and interactive websites retain their immunity when they knowingly permit defamatory content to remain on their site or they distribute such material by posting it on someone else's site?

At present, many experts view the scope of Section 230 immunity is extremely broad. According to the Third Circuit in Zeran, such immunity is available even when a provider or user knowingly distributes defamatory materials, and possibly profits from such conduct. Since the decision in Zeran, no court has subjected a provider or user of an interactive computer service to liability for knowingly disseminating third-party defamatory statements via the Internet

Indeed, to date, and to my knowledge, only one case -- Barrett v. Rosenthal -- has rejected a party's claim of Section 230 immunity, and that case is currently on appeal to the California Supreme court and has no precedential value while on appeal. (Note: It also was modified in part by a later ruling of the same court.)

Rejecting Zeran, an intermediate California appellate court held that Section 230 does not immunize a user of interactive computer services from a defamation claim arising out of her distribution and republication of statements authored by a third party, if the user knew or had reason to know of the falsity of those statements.

Plaintiffs Stephen Barrett and Terry Polevoy are physicians who oppose the promotion and use of "alternative" or "nonstandard" health care products and treatments. Plaintiffs have websites that purport to expose health care fraud and quackery. Defendant Ilena Rosenthal is alleged to have knowingly republished defamatory remarks about the doctors authored by another person.

The Barrett case, to date, is the only case that focuses on the original common law notion that said that distributors of previously published libelous material could be liable for knowingly distributing or republishing libelous content.

And how should the courts deal with the Wikipedia scenario? At least one commentator, Professor Douglas Lichtman at the University of Chicago, takes the view that in some situations, Wikipedia's immunity may not be not total. He postulates that the site could face liability, despite Section 230, if Wikipedia employees or management "knew clearly" that they were distributing defamatory material, and failed to act.

But this situation has not been tested in the courts, and cases refusing Section 230 immunity to Internet companies are very rare. Lichtman notes, however, that given the facts at hand, Wikipedia is likely immune with respect to the erroneous Siegenthaler biography.

Licthman's theory and the Barrett case both suggest, however, that there is something wrong with granting a party immunity if he or she (or the web site) knowingly posts or allows defamatory material to remain on a site, and does not take action.

Should Congress Alter the Scope of the Section 230 Immunity?

Should Section 230 remain as is - or should it be amended to take away, or alter, the immunity it confers on sites such as Wikipedia?

There is a strong case for giving Wikipedia at least some immunity. It would be a shame if Wikipedia were to become so cautious that it took down any content of which a person complained - no matter how meritless. This would stifle the marketplace of ideas. Yet from a litigation perspective, Wikipedia would probably have to adopt this stance: Otherwise, money damages would increase for every day it left the damaging material on its site, despite the complaint.

But should Wikipedia have total immunity? It presents itself as an online encyclopedia - which has the connotation of reliability (and, in the past, edited content). We'd be foolish not to take blog postings with a grain of salt - but what about an article that is characterized as an encyclopedia entry?

Unsurprisingly, many people are relying on the content as if it were correct and using the site as a reference tool. College students often cite to Wikipedia in their research papers, for example

In addition, Wikipedia is very influential. It ranks very highly in the major search engines. This means that Wikipedia's potential for inflicting damage is amplified by several orders of magnitude.

Finally, because Wikipedia's content is so fluid - and is user-altered - an article can appear, do its damage, and disappear, all within a short space of time.

One way to modify Wikipedia's immunity might be to amend the statute to follow Lichtman's suggested rule: Though Wikipedia would generally be immune from suit, it would lose that immunity if its personnel were to discover that it included a false or defamatory entry, and fail to take action.

Of course there is a major question that would need to be answered: If all of Wikipedia's editors are volunteers, do they count as Wikipedia staff, such that we should attribute knowledge to them?

At a minimum, it may be time for Congress to revisit the Communications Decency Act and Section 230. The Internet offers new types of venues for expression - such as blogs and wikis, which were not prevalent in 1996. There is ambiguity about how Section 230 applies to these new forms of interactive computer services.

^1/Ed. note: The entry was actually corrected prior to Seigenthaler's Op-Ed in USA Today. Seigenthaler complained to Wikipedia in late September, and the entry was corrected at that time.