The Courts and Wikipedia – a New Crutch for Judicial Notice?

Apiece in yesterday’s NYT about how US courts are using Wikipedia

The NYT story suggests that it’s largely due to law clerks who turn to Wikipedia to verify background facts, even though the controversy about the source has not abated. That’s also what I’ve seen recently, marking Jessup Moot factums, where Wikipedia seems to be substituting for conventional authority.

The NYT story ends with Stephen Gillers of NYU:

Stephen Gillers, a professor at New York University Law School, saw this as crucial: “The most critical fact is public acceptance, including the litigants,” he said. “A judge should not use Wikipedia when the public is not prepared to accept it as authority.”

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

He added, “The higher the court the more you want to do it. Why do judges cite Shakespeare or Kafka?”

So what’s happening in the Commonwealth. Well it seems as if the Australian tribunals, especially their refugee tribunals, are leading the way. There are a few court cases from down under including Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404 defining reality TV, and a couple of Federal Magistrates Court cases, Coolstar Holdings Pty Ltd v Cleary Ors [2006] FMCA 1442 (7 September 2006) and Mathieson & Hamilton [2006] FMCAfam 238 (13 June 2006)

The interesting England and Wales High Court decision on the nature of Critical Mass was Kay v. Commissioner of Police

Here in Canada only eight cases split 3 FC, 2 Ontario Superior Court, 2 from la Cour supérieure du Québec, and a lone Alberta decision. Nothing terribly crucial though in Bajraktaraj v. Canada (Minister of Citizenship and Immigration), 2005 FC 261 (CanLII) Rick Mosely wasn’t impressed. with Wikipedia, or the party citing it.

In Gillet c. Arthur, 2005 IIJCan 37500 (QC C.S.) the encyclopaedia helped la Cour supérieure du Québec confront the question on everyone’s mind, What is a “shock-jock”?

And finally the European Court of Human Rights in ZDANOKA v. LATVIA – 58278/00 [2006] ECHR 231