From the Washington Post:
Pro golfer Fuzzy Zoeller is suing to track down the author who posted what he considers a defamatory paragraph about him on the Internet reference site Wikipedia.
Zoeller's attorney, Scott D. Sheftall, said he filed the lawsuit against a Miami firm last week because the law won't allow him to sue St. Petersburg-based Wikipedia. The suit alleges someone used a computer at Josef Silny & Associates, a Miami education consulting firm, to add the information to Zoeller's Wikipedia profile.
"Courts have clearly said you have to go after the source of the information," Sheftall said. "The Zoeller family wants to take a stand to put a stop to this. Otherwise, we're all just victims of the Internet vandals out there. They ought not to be able to act with impunity."
Read more here.
The reason Zoeller cannot sue Wikipedia and must instead pursue the person who posted the alleged defamatory comment is as a result of the Communications Decency Act 47 USC § 230 (1996) (‘CDA’). The effect of the CDA is to create immunity from a defamation action and states ‘no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider’.
The operation of this provision was demonstrated in Zeran v America Online Inc, 129 F3d 327 (4th Cir., 1997). This case concerned an anonymous post on an AOL bulletin board which praised the bombing of the government building in Oklahoma City and offered for sale t-shirts with slogans bearing a simular sentiment. The anonymous poster left Zeran's home number on the bulletin board should anyone wish to purchase a -shirt. Consequently Zeran received numerous threatening phone calls. Zeran then proceeded to sue AOL for distributing defamatory material. The CDA operated as a defence to AOL for this action.
However, there is no equivalent defence to the CDA in Australian legislation, other than an untested defence in Schedule 5 clause 91 of the Broadcasting Services Act 1992 (Cth), which is likely to only protect internet service providers, and the defence of innocent dissemination, which is unlikely to would Wikipedia as it is able to control and supervise the disseminated content.
I'd argue that Australia should consider introducing an equivalent provision to § 230 for three reasons. First, it would provide certainty to the law, thereby creating an online environment where people are more inclined to speak freely and openly, instead of the current online climate where speech is uncertain and guarded due to the unclear exposure to liability. Second, such immunity would encourage wiki owners and hosts to self-regulate, through the use of blocking and filtering technologies. At the moment there is a perverse disincentive to self-regulate as any form of regulation clearly indicates control, which in turn exposes the wiki owner and host to liability. Third, in promoting self-regulation, such immunity reconciles two seemingly conflicted goals: the need to limit the availability of objectionable content to minors and preserving the robust exchange of ideas enabled by the internet (see Law Professors' Amicus Brief, Barrett v Rosenthal, November 22, 2004).
Finally, for a detailed discussion on the CDA and Wikipedia see:
Myers, Ken S., "Wikimmunity: Fitting the Communications Decency Act to Wikipedia" . Harvard Journal of Law and Technology, Vol. 20, p. 163, Fall 2006 Available at SSRN: http://ssrn.com/abstract=916529
