It Makes Great Valleywag, but What Does Jimmy Mean for Safe Harbor?

The legal standing of much of Web 2.0 is based on the U.S. concept of safe harbor, which essentially means that no web site operator can be held accountable for anything posted on their site by the users. I'm no lawyer, and turned to an excellent breakdown of what safe harbor is and what laws ensure it from Eric Goldberg, Assistant Professor at the Santa Clara University School of Law, which he gave in an interview with ION Connection:

47 USC 230, passed as part of the Communications Decency Act in 1996, provides…providers with a very expansive immunization from liability for user content or actions. In effect, the statute says that a website isn’t liable for user content, PERIOD. This statute has been interpreted very broadly, and plaintiffs have a very difficult time establishing legal workarounds to impose liability…

47 USC 230 does not immunize…providers against possible liability for user violations of federal intellectual property, federal criminal laws or the Electronic Communication Privacy Act. Therefore, it’s not a complete solution, and other risk management strategies are required.

Specifically, as part of the Digital Millennium Copyright Act in 1998, Congress enacted a separate statutory safe harbor, codified in 17 USC 512, for online service provider liability for user-committed copyright infringements. The 512 safe harbors are not nearly as robust as the protection offered by 47 USC 230 in at least two ways. First, the 512 safe harbor has not been interpreted nearly as expansively as 230. Second, the 512 safe harbors aren’t “self-executing.” Instead, …providers need to take a number of prophylactic steps to be eligible for the safe harbor at all. Thus, …providers would find some value in working with their attorney very early in the process to ensure that the …provider designs its product, its operations and its documentation to optimize protection under 512.

Sites like Wikipedia rely on the protection afforded them by safe harbor laws to keep them from prosecution or civil lawsuits if their users post something to the site or use the site to conduct criminal activity. This is why MySpace didn't get into any trouble in the Megan Meier case.

Valleywag has been getting tons of pageviews for their coverage of the goings-on at Wikipedia, but at the heart of what often seems like the most salacious of coverage is the question of whether or not the actions of co-founder Jimmy Wales may impact the site's legal standing when it comes to suits filed against it. To date, the rumors that Wales was either directly involved in edits or directed Wikipedia editors to alter entries have never been proven. Valleywag editor Owen Thomas notes, however, that the spin-off site Wikinews may not want to take the risk of having Wales editing on the site, and removed his admin privileges.

What struck me as the oddest part was that Wales protested the change. At a time when his judgment has been questioned repeatedly and at least one lawsuit has been threatened over his edits of the site, why would the Wikimedia Foundation board let him continue to have any edit rights on the sites at all? If a board member/foundation exec is acting as a user, doesn't that blur the line of whether the site is actually only user-generated content? And if that line is blurred in such a way that it takes a court case to settle it, what will that mean for the rest of us who regularly contribute content to sites and to the legal definition of safe harbor itself?