A NJ Appellate Division court says that Wikipedia is too malleable to be used as evidence in Palisades Collection v. Graubard, A-1338-07.
Mary Pat Gallagher of the New Jersey Law Journal reported yesterday,
"[I]t is entirely possible for a party in litigation to alter a Wikipedia article, print the article and thereafter offer it in support of any given position," an appeals court held. "Such a malleable source of information is inherently unreliable and clearly not one 'whose accuracy cannot reasonably be questioned,'" such as would support judicial notice under New Jersey Evidence Rule 201(b)(3).
The decision reversed an opinion by the lower court that the Wikipedia entry could be admitted under the provision that describes the type of material appropriate for judicial notice.
The issue of vandalism, or deliberately altering Wikipedia content and then printing it to tender as evidence, was raised by the court.
The reliability of Wikipedia is discussed by an entry on Wikipedia itself; its accuracy can approach that of mainstream encyclopedias.
Perhaps if Wikipedia entries were entered as evidence along with talk pages and all major revisions it might be treated differently.
But at that point it's probably easier for counsel to just photocopy a page from Encyclopedia Britannica.
Mitch Kowalski picked up on this article over at the Legal Post.
What do all of you think – is Wikipedia like your Aunt Mildred, or can it be a sign of public consensus?
Just because a lot of people think something, doesn't make it correct. Where opinion is what you're trying to measure, Wikipedia is a good place to start, perhaps. But if the vast majority of Wikipedia writers believe the world is flat…
I do agree that truth is not determined by popular opinion.
But Wikipedia does have a number of controls, like tags indicating that the neutrality of an article is disputed, or encouraging different views on a subject.
The purpose of tendering the evidence would not necessarily be proof of an issue, but rather the common held beliefs and public opinion on it. I cannot think of a better way to determine this if the controls mentioned and greater global participation occurs in the future.
As Omar pointed out, you can take judicial notice of something when it is a "notorious fact." Like Omar says, if there is a large enough body of people that are aware of some fact, then that fact is "notorious" and the judge can properly take judicial notice of it.
Whether a Wikipedia article is proof that a lot of people believe a particular fact to be true is another question….
I don't think we've quite gotten to the point were the average person on the street is a Wikipedia *contributor*.
The problem is that anyone can go in and make a Wikipedia article say what he or she wants it to say – at least for a while. Wikipedia has editorial guidelines against self-promotion and in favour of importance – not just anything justifies an article. But those guidelines are not necessarily enforced in a timely or consistent way. So the risk of self-serving evidence is very high, probably too high to support admissibility at least on facts critical to a particular lawsuit.
Whether or not a particular Wikipedia reflects any consensus on anything is, of course, something that varies (and enormously) from article to article.
That does, though, suggest that a useful add to the Wikipedia interface would be a stat, at the bottom of each page, showing:
(1) how many unique users/anonymous IPs had viewed a particular page in the last month; and
(2) how many unique users/anonymous IPs had edited a particular page since it was created on such-and-such a date.
B, some of this information is already available on Wikipedia’s Page History for each entry, though viewing stats may be useful.
I agree with Wendy that the average person on the street isn’t a contributor yet, but it is moving in that direction.
Of greater concern would be that Wikipedia content would be highly reflective of Internet usage patterns worldwide, reflecting inherent cultural and socio-economic biases.
But as a legal tool, these biases and perceptions are exactly what a court might be trying to get to.