Wikipedia case may test Section 230 again

Gregg Leslie | Content Regulation | Reaction | May 6, 2008

Section 230 of the Communications Decency Act, which provides protection from liability for Internet service providers for content posted by third parties, is more necessary than ever these days. It took a beating in a suit brought against Roommates.com recently, but then again, the content on that site was generated by third parties who were answering questions and filling in a template provided by the housing site itself.

It also didn't stop a bank from dragging a domain name registrar into court and making them block access to the wikileaks.org Web site under threat of liability for the postings on that leaks site, but then again, the registrar didn't seem to be aware that section 230 should have applied.

But now comes another case that could test the limits of the safe harbor. A literary agent has sued Wikipedia over an entry that she says labeled her agency "the dumbest of the 20 worst" literary agencies and suggested she was collecting fees from writers without being able to show any literary sales. (Wikipedia says that claim was made about the agencies on the list, and its entry only pointed out that another organization had put her agency on such a list.)

Wikipedia is relying on 230 to avoid liability, and the case could be interesting. The online encyclopedia should prevail, but the Roommates.com case has shown that judges are loathe to extend the protections of 230 too far, mainly because the protection is so complete. Wikipedia may prove to be another entity that annoys judges, if only because the third-party contributions are more in the form of edits and changes to contents, where the original and subsequent authors are unknown (except by conducting a near-forensic analysis of the editing logs).

But however this turns out, the outcome here and in the Roommates.com case do not spell doom for Section 230 protection for true news sites that allow readers to post comments. Such free-form commenting is exactly what the law was designed to protect, and the more difficult cases along the margins should not affect that.