Case Status: Victory
Burke v. Doe
- Freedom of Speech
Jeremy Rabkin: Protecting Wikipedia contributors means protecting the modern Internet
A ruling last month by the District of Columbia Court of Appeals is a major victory for the openness of today’s Internet. It’s a particular victory for the process that sustains Wikipedia. The case is John Doe No. 1 v. Susan L. Burke.
The ruling concerned a pre-trial motion to quash a subpoena, but it will probably end this particular litigation. And if followed by other courts, it would help protect Wikipedia contributors – and others who post anonymously on other sites – from political bullying.
Wikipedia is one of the great wonders of the Internet. Actually, one of the great wonders of the modern world. It has some 4 million articles in the English version – 40 times more than the Encyclopedia Britannica. A study published in 2005 in the British science journal, Nature, found that Wikipedia’s treatment of scientific matters was comparably reliable to that of the Britannica. The online encyclopedia has versions in 286 other languages, offering some 30 million articles in all. This makes it one of the most widely used sites on the Internet, with 500 million unique visitors per month checking some 18 billion pages.
I was able to learn this in about five minutes by consulting the article on Wikipedia that appears on… Wikipedia. What allows Wikipedia to keep assembling so much information, with so much relative reliability, is that its articles are all prepared by volunteers and then edited and reedited by volunteers. What happens if they post something that’s disputed? Normally, critics can revise the article directly (at least in the English version), but the original author can then revise the revisions. A “history” page for each article allows readers to track the changes and a “talk” page allows contributors and critics to iron out disputes.
That wasn’t good enough for Susan Burke. She wanted to iron things out in court. Burke is a human rights lawyer with a practice that focuses on “advocacy for those allegedly harmed by the misconduct of U.S. military personnel and government contracts” (as the opinion in DOE explains). Wikipedia carried an article about her. It mentioned that she had represented Iraqi victims suing the security contract firm Blackwater, for injuries arising from a 2007 shooting incident in Baghdad.
A subsequent editor added that the suit had later been dismissed by a federal judge who found “reckless violation of the defendants’ rights.” Burke removed this addition. Another editor restored a somewhat similar claim. But the editors had confused a criminal case brought by federal prosecutors against Blackwater personnel (which had indeed been dismissed by an irate judge) with the civil claims brought by Burke herself (which were still pending). After some back and forth on the relevant “talk” page, Burke decided to sue for defamation, tortious interference in prospective business advantage, and false light invasion of privacy.
But the volunteer editors had identified themselves only by Internet monikers (“Zujua” and “CapBasics359”). So Burke sought a subpoena against Wikipedia, demanding that it disclose the identity of the editors so she could pursue her claims against them. The trial judge approved that demand. “Zujua” – known in court filings as John Doe No. 1 – moved to have the subpoena quashed as contrary to the “anti-SLAPP” law enacted by the District of Columbia in 2012.
“SLAPP” is an acronym for “strategic lawsuit against public participation” – a lawsuit that tries to “use litigation as a weapon to chill or silence speech” (as the D.C. Court of Appeals characterizes it). Anti-SLAPP laws allow victims of such bullying to have these disputes quickly dismissed when they have no prospects of success on the merits of the case. The Court of Appeals agreed with “Doe” that the D.C. law protected him from having to reveal his identity at the outset – which would “result in the irreversible loss of the anonymity that the Anti-SLAPP Act specifically seeks to protect” (among other things).
The court noted that, having issued press releases trumpeting her lawsuits to the public, Burke had made herself a “public figure” and under U.S. constitutional standards, a “public figure” cannot claim libel damages unless false information was “malicious” or published with “reckless disregard” for the truth. And Burke had very little likelihood of prevailing under those standards. She now has even less of a chance, at least in D.C. courts. Twenty-eight states also have anti-SLAPP statutes, so the D.C. precedent can echo.
How much does it matter? Consider that Wikipedia articles are entirely dependent on writing and editing by volunteers – people who come forward on their own initiative and don’t get any direct financial reward for doing so. How many would come forward if they had to worry about getting sued for what they contributed? How many would stand behind their posts, if lawyers demanded they withdraw them and threatened lawsuits if they didn’t? If a few Wikipedia contributors were dragged through years of costly litigation, how long would it take for other contributors to hear about such episodes? Thanks to the Internet, not long at all. How many anonymous editors want to be heroes of Free Speech?
What’s true for Wikipedia may be even truer for sites that provide forums for anonymous reviews. A site like Yelp depends on casual posting from ordinary customers or clients, summarizing their reactions to new restaurants, or their experience with home repair services and medical specialists. If such contributors came to fear legal liability for anonymous postings, valuable public forums might be severely restricted.
Full disclosure: Doe was represented by the Center for Individual Rights. I serve on its Board of Directors.
Jeremy Rabkin is an adjunct scholar in the Center for Internet, Communications, and Technology Policy and a member of AEI’s Council of Academic Advisers. At AEI, he focuses on cybersecurity and Internet governance issues. Rabkin is also a professor of law at George Mason University School of Law, where he teaches international law and administrative law. He previously taught for more than two decades in the Department of Government at Cornell University. Rabkin’s books include “Law Without Nations?” (Princeton University Press, 2005) and “The Case for Sovereignty” (AEI Press, 2004). He serves on the board of directors of the US Institute of Peace, and on the board of the Center for Individual Rights, a public law firm in Washington, D.C.