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Does Liability Enhance Credibility?: A Wiki Role for Section 230

Authors Olivera Medenica, Kaiser Wahab
Track Law & Policy
License GNU Free Documentation License (details)
About the authors
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.
This presentation forms part of the following panel:
This paper examines the role that legal liability could play in the development of Wiki driven platforms such as Wikipedia. We address the relationship between internet intermediaries, collaborative editing, and the 1996 Communication Decency Act's Section 230 (“Section 230”). We propose limiting Section 230 and that Wikis should:
  1. address potential liability for user-provided content; and
  2. impose mandatory rules of conduct for registered Wiki users.

Section 230 provides that an internet intermediary will not be held liable for information posted by a user. Wikis benefit by remaining liability free from posting and edits of its users. Although Wikis’ appeal lies in communal editing, the continued growth in user content and reliance upon volunteer editorial staffs may ultimately lead to Wiki’s discredit. The open content Wiki model can be preserved in the long term by imposing limited liability upon Wikis and its users for postings. We examine Wikis and their success in light of Section 230 and the legislative intent underpinning the current liability model. We conclude that Section 230 and current Wiki policies do not provide the best paradigm for the long run. Section 230 should be modified to include:

  1. limited liability for internet intermediaries by providing a statutory cap on damages;
  2. a safe harbor provision similar to DMCA’s OCILLA provisions, and
  3. a public defense fund as insurance against unwarranted liability.
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