What's the Difference Between Stating Facts or Opinion Online? Wikipedia Contributor Faces Defamation Suit

A case appeared out of the Northern District of Illinois at the end of February that considers whether statements that appear on Wikipedia are actionable as defamation.  The answer by the District Judge is yes as to some of the allegations.  The procedural posture of the case does not resolve whether the statements are, in fact, defamation.  Coming to the Court on a motion to dismiss, the Court views the allegations in favor of the plaintiff and considers their sufficiency at this stage of the proceedings.  Though the counts survive, a jury may conclude otherwise once the case proceeds to discovery and trial.

The facts concern Anthony Pitale who is the former Chief Operating Officer of American Career College and West Coast University.  He brought suit against Dan Holestine, a former employee of Pitale at both institutions for making defamatory statements.  These appeared on Wikipedia entries edited by Holestine and in a separate blog called “friendofthestudent’s.”  The blog post that is at issue in the case still appears online, at least as described in the Court’s opinion.  The blog has not been updated since December 3, 2010.

I’m not going to go through every single statement or the Judge’s decision as to whether they are actionable.  Some are, and some are not.  Some statements from Wikipedia and the blog do survive the cut.  The case, in my opinion, makes the point that not everything on Wikipedia is actually sustainable as a matter of fact, at least when challenged legally. 

Here is the lengthy, but relevant parts of the opinion:

Next, Pitale complains about the Eldorado College entry in Wikipedia. This statement does not suffer from the same difficulty in discerning who is the target of the statement. The full two sentences in which the statement appears reads as follows:

The college closed [on] September 11, 1997 after a financial scandal led to the revocation of its accreditation, as well as its eligibility to receive funds from its alumni and various charities. Mr. Pitale, defiant to the end, claimed that the school[']s failure was the result of "overzealous bureaucrats" versus any wrongdoing by the owner of the organization.

R. 15, Exh. B. In this context, the natural and obvious meaning of the statement is that it was Pitale who engaged in the "financial scandal" and "wrongdoing" that led to the college's loss of accreditation. After all, earlier in the Wikipedia entry,[6] Pitale is identified as the "founder/owner."

Nor can the El Dorado College statement be innocently construed as not suggesting wrongdoing, at least if reasonable inferences are drawn in Pitale's favor, as they must at this motion-to-dismiss stage. This statement can be interpreted as imputing a lack of integrity in performing job duties and prejudices Pitale in his profession. The terms "financial scandal" and "wrongdoing," and labeling Pitale's response to regulators as "defiant to the end," are all naturally interpreted as accusing Pitale of mismanaging Eldorado College to the point of loss of accreditation, loss of eligibility to receive funds from alumni and various charities, and closure. Holestine argues that this sentence somehow "credits Pitale," R. 27 at 4, but that is a strained interpretation given words like "scandal," "defiant to the end," and "wrongdoing." R. 15, Exh. B.

Moreover, the statement "can reasonably be interpreted as stating actual fact," not just merely an opinion. Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 882 N.E.2d 1011, 1022 (Ill. 2008); Solaia, 852 N.E.2d at 840. Three factors are considered to determine whether a statement is opinion or fact: (1) whether the statement has a precise meaning; (2) whether it is verifiable; and (3) whether its literary or social context suggests it is factual. Madison, 539 F.3d at 654 (citation omitted); Imperial Apparel, 882 N.E.2d at 1022. Courts consider these factors together, but emphasize verifiability. Rose v. Hollinger Intern., Inc., 889 N.E.2d 644, 648 (Ill. App. Ct. 2008).

All three factors point toward the Eldorado College statement as a factual assertion, not opinion. The statement has a relatively precise meaning—that the school lost its accreditation and eligibility to receive funds, and why—and, as Pitale points out, R. 25 at 8, is verifiable. Although the term "financial scandal" may be imprecise in isolation, the preceding paragraph explicitly states that "student loan default rates" exceeding the maximum percentage set by the Department of Education led to the school's closure. R. 15, Exh. B. The overall context also suggests that the statement was intended as a statement of fact: Wikipedia is an open-source encyclopedia, primarily serving (or at least intending to serve) as a source of factual information rather than as a forum for expressing opinion. Wikipedia strives to be a repository of facts, not opinions.[7] All in all, at this stage of the litigation, Counts 1 and 2 state a claim for defamation per se as to the Eldorado College entry.

The footnote appearing in the [7] entry reads: "One of Wikipedia's "three core content policies" is "neutral point of view." http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view (Last accessed Feb. 27, 2012)."  It does not appear that Wikipedia is a defendant in the case.  I would assume that the DMCA safe harbor provision would supply a defense to Wikipedia in any event.

Other parts of the opinion do take into account the First Amendment right to state opinions about individuals in the context of the other counts, dismissing them where appropriate.  This case illustrates one of the problems with crowd sourcing.  I realize that Wikipedia relies on volunteer editors to maintain a check on random edits and to promote consistency in the information presented.  It is dangerous, however, to assume that the crowd, or at least the crowd that made it into view, is always right.  See, for example, this article from the Chronicle of Higher Education on the problem of a scholar who has researched his topic compared with understanding of the editors as to facts.  I’d be mighty curious as to how this case ultimately gets decided. 

Hat tip to Bloomberg BNA Computer Technology Law Report for the case. [MG]