If you see this on an archive site, be sure to check the original URL for updates and possible corrections. These are research notes, as are many pages on this blog.
I have been libelled by the WikiMedia Foundation, by the issuance of a global ban with no foundation in fact, apparently based on private complaints considered valid without any opportunity to respond. The WMF appears to think that issuing a global ban with no explanation protects them from liability for libel. However, they have claimed that global bans are issued only rarely, for exceptional cases, to protect the community. The fact of the ban is being used as an element in a series of defamations, by a person known to be one of the complainers. I believe that I have sufficient cause, based on this, for action to require the WMF to lift the ban or to provide evidence, and specifically the complaint mails or other evidence and arguments considered by them. I need not prove libel to file an action, as long as the legal theory on which the filing is based is possibly valid. Here, I’m looking at information sites and cases that might relate to this issue.
As to the WMF, the primary claim would be for libel, from the global ban issuance. For a libel claim, the restrictions of the TOS on the liability, and court jurisdiction for action against the WMF may not apply.
As to the RationalWiki Foundation, a different legal theory might apply, it’s more difficult. My sense from what I have seen is that the RWF will take down defamatory material on demand, unless they see it as mission-critical. I did already email them, they ignored it. (and there is a claim from Oliver D. Smith that he was told this was deliberate. So the next step would be a certified demand letter to the registered agent.)
In all cases, as I understand the matter, communications from users of these web sites are not privileged and would be subject to discovery, and users are not protected from defamation for actions they take, the protections of Section 230 are for removal of material, not for provision of it.
As a minor point, the Wikinews article has, at the very end:
The Register has a long history of denigrating Wikimedia projects.
That is an obvious neutrality violation. The preceding text fails to distinguish between reporting and editorializing. The Register source was an editorial by Cade Metz, not “the Register.” This what you get when amateurs are given collective control. They play at journalism. In any case, the Register article is excellent.
isp-liability-for-internet-defamation looks good. (those who post defamation may be held liable. The liability of the ISP may vary with context and conditions. It’s looking to me like it might take a court order to force this, if the ISP is merely inactive. But if it takes a positive step that has the effect of defamation, it could become liable.
the-decline-and-fall-of-section-230/ is a gold mine to be carefully studied.
At this point, this is the bottom line. There is sufficient case law that it may be possible for an action for libel to survive a motion to dismiss, and a motion to dismiss will still require expenditure by the defendant. That would not allow the filing of a frivolous suit without associated hazards. If the cause of action is reasonably plausible, it need not be bulletproof to be effective for remediation purposes.
Further, the law does not protect the individuals who defamed, nor is the WMF or the RWF likely to defend them. The impersonation socking I have been describing has known individuals as perpetrators, very likely, and I do have evidence that can be used, and more evidence can be obtained lawfully. I will continue to study the case law and analysis.
(The issues with involved individuals, the WMF, and the RMF, are distinct and different.)
https://law.stackexchange.com/a/6822 confirms user liability, and site owner is protected if they take the libel down. That’s my understanding of Section 230. They cannot maintain the defense of “the community did it” in the face of a specific claim of defamation, unless they take it down. By taking an action on their own judgment, they become liable for defamation, if the action defames. I expect the WMF will argue that the action was needed for user protection, but that argument, given the facts, is false, and, more directly, the defamation involved in a global ban is unnecessary for protection. If they formally notified the user that they are prohibited from editing, and the user violates that, this would be a TOS violation, and it would then allow the use of the global lock tool and public announcement. The banned user would still have a right to see defamatory claims (the evidence considered), for possible action against those who may have defamed.
At this point, I don’t know if this has been tested anywhere. Untested legal theories, if plausible, can make for actions that will survive summary judgment.
http://www.adlexsolicitors.co.uk/internet-defamation.htm focuses on UK law (some actions related to the issues may be filed in U.K. courts). They suggest a first response is a “lawyer letter.” Legally, a demand letter does not require a lawyer, in my opinion, but such a letter is more likely to be taken seriously. My interest will be that such letters be legally sufficient to put a site operator — or an individual — on notice that their behavior is defamatory, so that they may take remedial action, and if such action is reasonably prompt, it may allow, then, the “service provider” protection to be effective.
https://seqlegal.com/blog/10-things-you-should-know-about-libel again focuses on the UK.
c/o CT Corporation System
818 West Seventh StreetLos Angeles, California 90017
Business ID#: 4330247 Status: Active
Entity Name: THE RATIONALWIKI FOUNDATION, INC. Standing: Good Standing
Entity Type: Domestic Nonprofit Corporation Domestic State: New Mexico
Statute Law Code: 53-8-1 to 53-8-99
122 GIRARD SE, Albuquerque, NM 87106
Principal Place of Business in New Mexico:
122 GIRARD SE, Albuquerque, NM 87106
Character Of Affairs: Operating sites RationalWiki.org and EvolutionWiki.org and related.
- David Gerard: 122 Girard Blvd SE, Albuquerque, NM 87106
- Aidan Bissell-Siders, 122 Girard Blvd SE, Albuquerque, NM 87106
- Eric Doe 122 Girard Blvd SE, Albuquerque, NM 87106
- Simon Peter Hughes 122 Girard Blvd SE, Albuquerque, NM 87106
- Chief Operating Officer:Trent Toulouse 122 Girard Blvd SE, Albuquerque, NM 87106
- Chief Executive Officer:Huw Powell 122 Girard Blvd SE, Albuquerque, NM 87106
08/04/2010 Certificate Of Incorporation THE RATIONALWIKI FOUNDATION, INC. 3 PAGES PERPETUAL 08/05/2010 893489
The RationalWiki article on the Foundation lists current directors as:
- David Gerard
- Reverend Black Percy
- Tmtoulouse (Operations Manager, incumbent)
Below is mostly dicta.
There is a discrepancy. Huw Powell (RW User:Human) is not listed by New Mexico as a Director, but as the CEO. Openly real name. Human’s edits to the John Fuerst article seemed designed to improve it (toward objectivity). As a board member, does Powell know about the deliberate lack of response to a complaint email, as claimed by Oliver Smith? Maybe I’ll ask him. Not the most urgent task on my list. Human has almost entirely stopped editing RW for the last six months.
David Gerard is, of course, David Gerard. Interesting that someone who has supported the libellers — generally indirectly and possibly maintaining plausible deniability , but quickly actioning requests — is on the Board. The claim of the RMF is that it does not make content decisions, but if Board members are active members with high privilege, and use that privilege, this is disingenuous. The RMF does, in fact, make content decisions, I’ve seen at least one page deletion made as official, with warnings to users not to restore the page. My guess: someone didn’t just send a complaining email, they took more substantial action. The WikiMedia Foundation not uncommonly does that with some kinds of complaints. The protections of Section 230 do not extend to the maintenance of alleged defamatory material or other illegal material after notice provided.
Simon Peter Hughes is openly Spud. As they say on RW, seems sane.
Aidan Bissel-Siders is probably this nice kid, who wrote this RW-interest paper, serious work addressing (actually taking the piss out of) a stupid claim. Fun. I’ve done a fair amount of that kind of writing, though not normally so sarcastic. However, that kind of sarcasm is so common on RW that I don’t yet see a clue as to which user Bissel-Siders might be. So far, the candidates are FuzzyCatPotato and Reverend Black Percy.
Eric Doe I could find nothing on with a quick search. However, Rev. Black Percy has not edited for over six months, but I’d expect Bissel-Siders to remain active (given his research paper and age). I vote for the latter as being FuzzyCatPotato.
From prior history, I expect I may see complaints on RationalWiki that I am “attacking” RW users here. Yet what I am actually doing is showing who is responsible for RationalWiki, the real people involved. Board members are presumably covered by errors and omissions insurance. This actually makes them attractive targets. However, the only board member where some liability might be imputed, so far, is David Gerard. (Basically, his action to support defamation would be asserted. It is not necessary to have proof to assert a claim; proof may not exist until discovery.
My guess is that the RMF will settle relatively easily, if pushed. With the WMF, I’ll be challenging a process they have used for a few years. I have no crystal ball.