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Wikimmunity: Fitting the Communications Decency Act to Wikipedia

Author Ken Myers
Track Law & Policy
License GNU Free Documentation License (details)
About the author
Ken S. Myers is a recent graduate of Harvard Law School and will be joining Sullivan & Cromwell New York as an associate in the fall. His first interaction with Wikipedia came when the article on his law school IM flag football team was deleted - after heated debate - for lack of notability. Naturally, he wrote a paper (Wikimmunity: Fitting the Communications Decency Act to Wikipedia) to satisfy his curiosity regarding the Wikipedia phenomenon, the findings of which he is delighted to share at Wikimania 2006. Other than playing flag football, Ken spent his time at HLS as captain of the law school crew team and Managing Technical Editor of the Harvard Journal of Law and Technology. Wikimania 2006 will be but one week after the New York bar exam, so please - don't ask him about trusts, wills, or other in(s)anities of New York law.
This presentation forms part of the following panel:
The Communications Decency Act, codified at 47 U.S.C. § 230, provides the Wikimedia Foundation with a substantial shield from liability if/when it is sued for defamation appearing on Wikipedia. Section 230(c)(1) provides that, 'No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.' Defendants from AOL to eBay to have successfully defended against defamation actions with this shield; however, the immunity is not limitless.

This presentation will first cover the basics elements that the Foundation must establish to benefit from § 230(c)(1) immunity. Next, it will offer a taxonomy of analytical approaches to the application of § 230(c)(1), and explore ambiguities relevant to that application in light of Wikipedia's unique facts. Specifically, the open contribution model and accretion-based continuous 'publication' raise issues heretofore unexplored – namely, the scope of the term 'entity' in the definition of 'information content provider' and the appropriate level of generality of the term 'information.' While the presentation concludes that the Foundation will be able to avail itself of the § 230(c)(1) immunity, it offers a few thoughts for further improving its position in light of the law.

The paper forming the basis for the presentation (same title) will be published this fall in the Harvard Journal of Law and Technology, Volume 20. A draft is available on SSRN at

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