This little essay is not about copyright or trademark issues. This summary is about defamation and/or invasion of privacy. In 1996 Congress threw a curve ball at you that is referred to as Section 230 of the Communications Decency Act. Since federal law trumps state laws, this could mean that Wikipedia is immune. Certainly the Wikimedia Foundation, which owns and controls the Wikipedia servers, can be expected to claim immunity under Section 230 as soon as you file a defamation and/or invasion of privacy lawsuit.
The first question is whether you have a case under Florida's laws.
That's where the servers are located, and it is the jurisdiction
that the Foundation recognizes. The statute of limitations is two
years for defamation in Florida. In 2001 an appeals court in
Florida ruled that for invasion of privacy it is four years,
because the legislature failed to specifically list it under a law
that restricted defamation to two years. Who knows when the clock
starts ticking — when the article or defamation is first published,
or when you complain to the Foundation? We're not lawyers, and we
have no idea.
The Florida Bar has a "Reporter's Handbook" with essays for the media. There's a short article on defamation and a longer one on invasion of privacy. These will answer some of your questions about the laws in Florida.
Wikipedia is willing to correct any articles that subjects claim are libelous. There is still a huge problem because frequently Wikipedia doesn't know what they are publishing. A defamation lawsuit will work best if an article went unnoticed for weeks or months by the subject himself. In that case, the subject of an article can argue that the Foundation is guilty of nonfeasance. Its very structure is inadequate to the task of vetting information inserted by anonymous editors.
Invasion of privacy is more interesting than defamation in Florida,
since its laws for invasion of privacy are better than the laws in
many other states. Moreover, Wikipedia maintains that they have the
right to create articles on anyone. The criteria of "notability"
and "neutral point of view" and "verifiability" for such articles
are almost meaningless. A straw poll of mostly-anonymous editors is
used to make such determinations. There are no conflict-of-interest
controls, no accountability, and many editors are teenagers with
big egos and little common sense. These polls, known as "AfD" or
"article for deletion" procedures, are a joke.
Everyone laughs at them except for the poor person who is trying to get their biography deleted. This even happened to a former member of the Foundation's Board of Trustees, who is well-liked and has done a lot of work to promote Wikipedia. She was tired of patrolling her bio for vandalism, and claimed non-notability after resigning from the Board. Her AfD was rejected and her article still stands. Daniel Brandt has had nine AfDs in as many months, all of which were voted down overwhelmingly, or summarily killed by an administrator, because by starting this website he has shown that he lacks proper humility.
The subject of an article is not notified when an article is created, is not allowed to contribute to the article, and does not have the right to have his article taken down. Anyone reading the article naturally assumes that everything in an "encyclopedia" must be true, even though he could be reading something left there by a vandal. The more you are a "private" (non-public) person, the less interest there is among administrators to patrol it against vandals.
An added dimension to privacy has to do with the fact that articles on living persons, depending on how common your name is, frequently end up in the number one spot in all the major search engines. This is infinitely worse than having a newspaper print something about you that is invasive. A Wikipedia article will follow you for the rest of your life. Prospective employers will "google" you when your résumé arrives, and if they don't like something in your Wikipedia article, you won't get an interview. A newspaper article, by contrast, is used to wrap fish two days after it is published.
There is a huge problem with biographies of living persons on Wikipedia. And the U.S. Congress has made the problem even worse. In 1996, before Wikipedia existed, they came very close to language in the Communications Decency Act that grants Wikipedia immunity. This is a complex issue. At the Wikimania convention in August 2006, a paper was presented (PDF, 362 K) on the topic of Wikipedia and Section 230. This was written by a recent Harvard Law graduate who is pro-Wikipedia. It is 45 pages long, has 230 footnotes, and concludes that Wikipedia can claim immunity in most cases, but might be in trouble someday soon.
Does Wikipedia "create or develop" content? Yes. Is this controlled by the Wikimedia Foundation? Yes. If you sue the Foundation, are you suing an entity that creates or develops content? Maybe. If the answer is yes, then the Foundation is not immune under Section 230. If the answer is no, then you have no one you can sue. It all depends on where the court draws the line between the Foundation and the larger Wikipedia community. The Harvard grad makes this point in his essay. He notes that there is a hierarchical continuum from Jimmy Wales to arbitrators, stewards, bureaucrats, administrators (he calls them "sysops" or system operators), logged-in users, and "anons." These last are Wikipedia's term for anonymous users who do not log in and are identified only by their IP address.
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Journalists beware!
Wikipedia misleads the media On December 1, 2005, Jimmy Wales wrote to Editor & Publisher about Daniel Brandt: "I don't regard him as a valid source about anything at all, based on my interactions with him. I tried very hard to help him, and he misrepresented nearly everything about our conversation in his very strange rant. He considers the very existence of a Wikipedia article about him to be a privacy violation, despite being a public person. I find it hard to take him very seriously at all. He misrepresents everything about our procedures, claiming that we have a 'secret police' and so on."The problem with his letter to E&P is that Wales never tried to help Brandt at all, and he and Brandt have never had a conversation. An editor tried to remove this quote from Brandt's biography on the grounds that it is unreliable, but was continually reverted by administrators, one of whom insisted that "it is what Jimbo said, and that's all that really matters." 
General counsel Brad Patrick has also made a
false
statement to the press about Wikipedia, according to a
quotation from reporter Andy Peters. Patrick said, "We view individual
editors as responsible and have prominently displayed on every edit
page that individuals are responsible for their own contributions."
This is not true. It you hit the edit button without logging in, the first thing you see on the edit screen is an invitation to start an account: "As you are not currently logged in, your IP address will be recorded in this page's edit history. While you are free to edit without logging in, registering for your own account will conceal your IP address and provide you with many other benefits." There is a tiny "Disclaimers" link at the bottom of every page, but that only confuses the issue: "None of the authors, contributors, sponsors, administrators, sysops, or anyone else connected with Wikipedia in any way whatsoever can be responsible for the appearance of any inaccurate or libelous information or for your use of the information contained in or linked from these web pages." Isn't any editor a contributor connected in some way with Wikipedia? Doesn't this disclaimer mean that individuals are not responsible? It seems that Wikipedia wants to have its banana and eat it too. Reporters should not only verify everything they read in Wikipedia, but also everything Jimmy Wales or Brad Patrick tell them about Wikipedia. |
The problem is more complex than this. It turns out that about half of the more than 900 administrators are even more anonymous than the so-called "anons." This is because no verification is required by Wikipedia's software to obtain a username. All editing under a username shows only the username as the editor, and does not show an IP address. Due to the fact that Wikipedia deletes its logs after a few weeks, this means that a username is often more anonymous than an "anon" without a username. Even if you serve the Foundation with a subpoena, chances are good that they will be unable to provide an IP address, or anything else that might identify an anonymous administrator.
This is deliberate on Wikipedia's part, and their official policies brag about the privacy this provides. Those who reveal the true name behind an anonymous username get banned immediately, and the information deleted. Wikipedia does not want to know. Courts of law refer to this as "willful ignorance."
The Harvard author suggests that the most logical place to divide the Foundation from the larger community is between the administrators and the lesser logged-in users with usernames. This seems reasonable, in that administrators have extraordinary powers to delete content, protect content, and to block or ban lesser users. However, he fails to recognize that half of all administrators are even more anonymous than the "anons." How can they be held accountable? This situation may encourage a court to hold the Foundation accountable for all administrators who cannot be identified. Another wrinkle is that the Foundation's bylaws define its membership broadly for voting purposes, which would suggest that the Foundation identifies with its members, and sees itself as a broad entity that creates and develops content.
But for purposes of claiming immunity under Section 230, the Foundation will argue that it consists merely of five Trustees and about five employees. Their role is that of a provider of an interactive Internet service rather than a creator or developer of content, and they are therefore immune under the language of Section 230.
We don't think this argument is very convincing. Our opinion is that the Foundation's Section 230 arguments will not prevail, and those who can afford competent legal counsel, and are prepared to appeal on the basis of complex legal arguments, should not be afraid to sue the Foundation for libel and/or invasion of privacy. We also feel that Congress should get its act together and clarify how Section 230 affects, or does not affect, an entity such as Wikipedia.
