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This page is part of the Proceedings of Wikimania 2006 (Index of presentations)

Section 230: At the Gates between Liability for Harmful Speech and Wikipedia

Panelists Ken Myers, Olivera Medenica, Kaiser Wahab, Wendy Seltzer, Jonathan Zittrain
Track Law & Policy
License GNU Free Documentation License (details), Creative Commons Attribution Share Alike (details)
About the panelists
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.
Olivera Medenica, a graduate of Manhattan School of Music and Brooklyn Law School, practices primarily in Business Transaction, Intellectual Property and Entertainment law. Olivera began her legal career at Wolff & Godin LLP, an IP litigation boutique, later clerked for the Court of International Trade, and eventually joined Dowd & Marotta LLC as a commercial litigation associate. As an attorney and legal scholar, she published in the field of international law and was appointed a faculty member of Brooklyn Law School and the World Trade Institute at Pace University. She also serves as the Chair of the Entertainment, Media, Intellectual Property and Sports Committee at New York County Lawyers’ Association and is a member of New York Women in Film and Television and the Copyright Society.
Kaiser Wahab, a graduate of Cornell University and Columbia Law School, has assisted a variety of "idea" clients, from individual authors to software firms manage their intellectual property and business affairs. Beginning his career with Pryor Cashman, Sherman & Flynn LLP, he later joined Day Berry & Howard LLP, and clerked at the United States Court of International Trade. His practice is focused on business contracts, e-commerce, licensing, and emerging growth/venture capital.
Wendy Seltzer is a visiting assistant professor of law at Brooklyn Law School, where she teaches Internet Law, Information Privacy, and Copyright and writes about these and free speech online. Previously, she was a staff attorney with the Electronic Frontier Foundation, specializing in intellectual property and First Amendment issues. As a Fellow with Harvard's Berkman Center for Internet & Society, Wendy founded and leads the Chilling Effects Clearinghouse, helping Internet users to understand their rights in response to cease-and-desist threats. Wendy speaks frequently on copyright, trademark, open source, and the public interest online. She has an A.B. from Harvard College and J.D. from Harvard Law School, and occasionally takes a break from legal code to program (Perl).
Jonathan Zittrain holds the Chair in Internet Governance and Regulation at Oxford University and is a principal of the Oxford Internet Institute. He is also the Jack N. & Lillian R. Berkman Visiting Professor for Entrepreneurial Legal Studies at Harvard Law School, where he co-founded its Berkman Center for Internet & Society.

His research interests include battles for control of digital property and content, cryptography, electronic privacy, the roles of intermediaries within Internet architecture, and the useful and unobtrusive deployment of technology in education. He has recently co-authored a study of Internet filtering by national governments, and is writing a book about the future of the now-intertwined Internet and PC. Papers may be found at http://www.jz.org.

The panel seeks to explore the current and future role of Section 230 in the context of harmful speech disseminated over Wikipedia. To date, § 230 has provided a broad and robust shield from gatekeeper liability for passive and not-so-passive information intermediaries.

Does Wikipedia qualify for immunity? Panelist Myers will (1) introduce the basic elements that the Wikimedia Foundation must establish to benefit from § 230(c)(1) immunity, (2) offer a taxonomy of analytical approaches to its application, and (3) explore ambiguities relevant to that application in light of Wikipedia’s unique facts. The broad judicial interpretation of § 230(c)(1) and the more plausible resolution of the ambiguities suggest that the Foundation should be immune under the current legal framework.

But is this all-or-nothing – and mostly nothing giving the breadth of the immunity – framework the best, for Wikipedia and for society in general? Panelists Medenica and Wahab suggest not, and recommend that § 230 should be modified to include (1) limited liability for internet intermediaries by providing a statutory cap on damages; (2) a safe harbor provision, including a notice and take-down provision for allegedly infringing or defamatory material; and (3) a public internet intermediary defense fund as insurance against unwarranted liability.

Other panelists will present their views and suggestions with respect to the appropriate scope of § 230’s immunity and whether it should preempt gatekeeper liability for Internet entities such as Wikipedia.
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