Speak No Evil…?
Update: an article today (July 2) on the website of the Asbury Park Press reports that the suit against Wikimedia has been dismissed. A story hit the web last evening to that effect, but not having seen anything to corroborate it, I didn’t want to say as much last evening. Read on…
An article in yesterday’s Newark, NJ Star-Ledger highlights a series of lawsuits brought by Monmouth County literary agent Barbara Bauer against no fewer than nineteen websites and web companies. In the opposite corner are, among others, the Electronic Freedom Foundation and Wikimedia, the parent organization of the online open-source encyclopedia Wikipedia, which seek to have the case dismissed.
The crux of Bauer’s case is that criticism on a wide range of websites, some of which have taken on her practices as an agent and others of which have taken a decidedly more personal tack, have eroded both her reputation and her business. If it’s tried, the outcome of the case bids to have consequences far outside the Garden State.
Okay, now before someone says, “There oughta be a law,” I’ll remind you that there is. There have been standards against (not to mention consequences for) libelous or defamatory speech for nearly as long as there has been speech. The standard for determining what is sladerous generally hinges on the statements in question being malicious, false, or defamatory; libel applies much the same standard to the written word or image. If Bauer’s attorneys can prove that false statements were made, with malicious intent, by a person or persons writing about her, then she’s got a case.
As with so much else in the law, though, there are loopholes. Not least of these is the use of satire, which could be one of many defenses employed here (especially as regards the YouTube clips posted about the plaintiff).
One thing that’s worrysome here: the use of the ‘net as a safety valve of sorts–a means of monitoring conduct, and holding accountable those who misuse their positions, even if it’s just one lousy agent–would be significantly chilled by a broad ruling against the defendents in this case (assuming that EFF and Wikimedia’s motion to dismiss doesn’t have the desired effect). If all it takes is a simple lawsuit to shut down a site that airs complaints against shoddy business practices, or to intimidate them into silence, that doesn’t bode well for anyone who’d try to keep business honest; it’s likewise troubling for consumers, who could be robbed of a veritable pack of watchdogs. And that’s to say nothing of a sort of nagging self-censorship that creeps into writing when someone has to worry whether the next sentence they write could bring on a sentence of another kind altogether, or a precipitous cleaning out of the wallet.
Ordinarily, the idea that one course of action or another would lead to certain consequences would be pegged as a logical fallacy. Under any other circumstances, I’d be willing to concede that point. But then, this isn’t some fatuous attempt to convince the public that the consumption of alcohol will lead otherwise God-fearing men to marry caribou en masse (for example); this is a court case, so the consequences are altogether different. What would otherwise constitute a slippery slope is, in this case as in so many others, the potential setting of precedent. It provides the basis upon which similar suits might proceed, and also the legal framework within which other, similar cases might be decided. For that reason, and for the consequences that could befall writers both on- and offline, this case is one that anyone who cares about free expression should keep a close eye on.
Tags: Electronic Freedom Foundation, freedom of speech, lawsuits, Wikipedia
July 3rd, 2008 at 12:22 am
This is certainly interesting. Usually websites use the “we didn’t post it, and we don’t/won’t/can’t control what others contribute” defense. And that’s typically OK, because it’s true, and because most people don’t give authority to the words of (say) dilbert27 or choklateluvr. But Wikipedia doesn’t show who wrote what, and somehow anonymity has conveyed authority. The editorial volunteers are pretty good at adding the “citation needed” footnotes, but they can’t be everywhere. I’m not saying we should censor these works, but perhaps on pages about actual persons, there could be some sort of disclaimer/reminder along the lines of:
Remember, the following could have been written by ANYONE, including idiots, liars, and just plain a-holes. Just saying.
That should work
July 3rd, 2008 at 7:34 am
I never really looked at Wikipedia’s TOS, but I wonder if there’s anything in there about them being a neutral forum. A lot of sites that broker transactions of one sort or another use similar language (which says, in effect, we’re just the container, and accept no responsibility for what goes on within our confines). You could argue that Wikipedia brokers knowledge transactions, I suppose. Okay, I’m going way out on a limb here (I’m not a lawyer, after all), but I’d tend to think that’s at least somewhat in the ballpark.
Something of that size is pretty much impossible to police effectively from a central point, which is why they rely on a kind of self-policing, which generally works pretty well (see Clay Shirky’s “Here Comes Everybody,” which explains the whole thing a heck of a lot better than I just did).
July 3rd, 2008 at 1:47 pm
I’m sure you’re right about the TOS, but only posters will see that. I believe it’s quite clear that Wikipedia is not a place for original thought, which is why it’s so big on citations. But frankly, I don’t have much hope that the malicious and ignorant care about the TOS. Frequently, self-policing only involves a note that the author hasn’t backed something up with a citation. That’s not quite the same as erasing it or saying it’s wrong.
My larger point is that how people (or perhaps it’s just me?) perceive Wikipedia. Normally, when I start reading an article on a blog or forum, I jump to the author page. Who is this guy? What authority do they have to say these things? When I see they’ve posted anonymously, I can safely discount what they’re saying, or take it with a grain of salt.
But even though everything on Wikipedia is anonymously written, I don’t treat it like an anonymous forum poster, even when citations are missing. Like a real encyclopedia or established journal, it lends some sort of automatic authority.
And I realize one can go to the history page, but I’ve never done that until now. So if I’m pretty accepting of what’s on there, and skeptical of most everything else, I’m guessing others are, too. That was why I thought a disclaimer/TOS for *readers* might be appropriate. Even if it was a simple reminder like “Last edited by rIdePimpinmOfo” with a link to said user’s myspace page or MIT course notes.
I do want to read the Shirky book, though…
July 4th, 2008 at 9:15 am
Yeah, it’s odd. Sometimes I don’t worry all that much about sourcing; I don’t think that there’d be much that’s all that controversial about rubber ducks, for instance. On the other hand, if I’m reading something that I know is a subject of debate–an article on the Armenian Genocide, say–then I’m a lot more likely to see how it’s sourced. But there is a tendency (and I don’t think it’s just you) to take the stuff pretty much at face value. As an essentially social medium, I think Wikipedia starts with being able to rely on a certain amount of good faith on the part of the people who post there.
Without that, as with other social media–I’d even include democratic government in the same category–the system falls apart. There will always be people, in any social system, that act in bad faith. That said, I think that it relies on enough people doing the right thing that the system as a whole can continue to function.
And yeah, check out the Shirky book. Thought of you as I was reading it, actually, because given your interest in social software/webware, you’d probably take more away from it than I did.