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Wikipedia, Websites, and WebMD: Are These WWW’s Reliable as Evidence? (Part I)
John A. Wirthlin • & Brittan L. Mitchell •

The determination of truth is a demanding task requiring competent use of reliable evidence. The truth-seeking process benefits as judges and litigants challenge the reliability of ‘www’ evidence. This article reviews recent cases that question the reliability of certain internet sources. It will appear in two parts: Part I addresses reliability issues with Wikipedia and Social Networking websites, and Part II (published in October) will address reliability issues with WebMD1, YouTube 2, and Corporate Websites 3.

WIKIPEDIA—THE FREE ONLINE ENCYCLOPEDIA

Many online resources contain legal disclaimers in their User Agreements and Terms of Use policies.4 The interesting commonality is the refusal to warrant the reliability of information. The following list contains a few examples of websites with language disclaiming the reliability and/or the accuracy of information: Encyclopædia Britannica Online 5, Encarta 6, Columbia Encyclopedia 7, Associated Press 8, New York Times9, The Wall Street Journal10, Oxford English Dictionary11, FindLaw 12, Wikipedia13, and WebMD14. Although these sources seem credible to avid Internet researchers, the outright statements disclaiming the reliability causes hesitation in the courtroom. This section will review some of the case law challenging the reliability of Wikipedia. Additionally, this section will discuss potential strategies to bolster the reliability of this online encyclopedia.

There are several hundred Wikipedia references in cases throughout the United States. The majority of these references used Wikipedia to define community standards, historical events, slang terms, medical definitions, human anatomy, and many other purposes.15 Even with these numerous supportive citations, there are the occasional reliability skeptics.16 These reliability concerns find root in the general disclaimers found on the Wikipedia website:
    Wikipedia is an online open-content collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information. That is not to say that you will not find valuable and accurate information in Wikipedia; much of the time you will. However, Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. . . . If you need specific advice (for example, medical, legal, financial, or risk management) please seek a professional who is licensed or knowledgeable in that area.17
The potential for information vandalism raises a red flag for many courts and litigants. The following cases demonstrate judicial concerns with Wikipedia.

In State v. Webb, the appellate court reprimanded the use of Wikipedia evidence.18 The Webb defendant argued on appeal that the trial court inappropriately allowed the defendant to represent himself.19 The defendant articulated that if the court had adequately inquired into the defendant’s understanding, then the court would have discovered that the defendant was Bipolar.20 This disorder, along with the medication’s side effects, made it impossible to understand the consequences of waiving the right to counsel.21 The defendant’s appellate brief “repeatedly and extensively” quoted Wikipedia to define his medical condition and the side effects of the corresponding medications.22 The appellate court, obviously concerned about the defendant’s reliance on a source that “anyone can edit,” indicated that it “strongly caution[ed] against citing Wikipedia as an authority in an appellate brief, especially when there are other, more demonstrably reliable sources of authority available.”23

Just a few months later, a different appellate court found reversible error for the reliance on Wikipedia.24 In Palisades, the credit collection company attempted to prove that the defendant was liable for a particular uncollected debt.25 To meet this burden, the plaintiff offered evidence from Wikipedia, and the trial judge took judicial notice that “banks are frequently purchased.”26 The appellate court reviewed the Wikipedia policies and disclaimers, including the “anyone can edit” policy, and found that “[s]uch a malleable source of information is inherently unreliable and clearly not one 'whose accuracy cannot reasonably be questioned,' such as would support judicial notice.”27 The appellate court, after purging “this inadmissible material,” found that the Palisades plaintiff failed to produce enough evidence to support its claim.28

Reliability challenges for Wikipedia’s information will likely continue due to the disclaimers and the “anyone can edit” policy. These reliability challenges should not necessarily cause a litigant to forgo using Wikipedia in the research, pre-trial, and trial stages of litigation. However, if you are anticipating a challenge of a Wikipedia source, then consider the following tips to bolster the reliability of the reference. First, there is strength in numbers. Consider supplementing the Wikipedia evidence with other sources.29 Second, demonstrate that many “reliable” sources have similar disclaimers. The list at the beginning of the article provides a few sources with similar disclaimers. Examine precedent cases in the particular jurisdiction, research the sources that the litigants used, and find parallels in any corresponding disclaimers. A third suggestion is to provide references to Wikipedia’s content policies, including the policies for verifiability,30, no original research31, and neutral point of view32.

Finally, an important step in bolstering Wikipedia evidence is to contradict any potential risk of information vandalism. A tool such as the “Way Back Machine”34 might allow a litigant to create a time line that shows a non-bias history of the particular Wikipedia article.35 Additionally, Wikipedia itself stores information about every edit.36 This historical snapshot is available simply by clicking the “history” tab for the particular article.37 “All . . . editable pages on Wikipedia have an associated page history, which consists of the old versions of the wikitext, as well as a record of the date and time . . . of every edit, the username or IP address of the user who made it, and their edit summary.”38 Providing this historical snapshot and thoroughly explaining the editing techniques could mitigate the judicial concerns surrounding the “anyone can edit” policy. 30 might allow a litigant to create a time line that shows the history of the particular Wikipedia article.31 Work on demonstrating that the article was not altered within the timeframe of the particular litigation. This final strategy could mitigate the “anyone can edit” concern.

SOCIAL NETWORKING WEBSITES

Not until the advent of the social networking boom did seemingly private personal information including, but not limited to, pictures, home videos, political and religious beliefs, hobbies, and work information become entertainment for a browsing audience to enjoy. These online tidbits of information are typically very probative and are surfacing in every facet of litigation.39 Yet, while probative, introducing indecent pictures and “smoking gun” confessions from a party’s profile as evidence still requires the requisite level of authenticity. This section of the article reviews some of the case law surrounding social networking websites.

Many courts have found that the information posted on such websites to be sufficiently reliable to admit as evidence.40 As a result, some litigants have experienced the harsh reality of uploading their “life story” for the judge, jury, and lawyers41 to meticulously dissect. For instance, photos taken from a Facebook page depicting the defendant wearing a “Jail Bird” shirt just two weeks after a drunk-driving accident were instrumental in the judge’s decision for a two year prison sentence.42 Likewise, in North Carolina, a plaintiff who was seeking millions of dollars in damages in a personal injury suit received a judgment for nothing after photos from her MySpace were brought before the jury.43 What the jury found to be extremely convincing evidence was the depiction of the party-going plaintiff who claimed she suffered severe life-altering brain injuries.44

Indeed, even in a murder trial can information from these social networking websites be a determining factor.45 In Campbell v. State, the defendant appealed to the Nevada Supreme Court after the trial court allowed the prosecution to provide a MySpace video transcript for the jury.46 The court held that providing the transcripts and showing the MySpace video was not overly prejudicial to justify reversal.47

Nonetheless, as with other types of information that is easily accessible, courts are reluctant to allow parties to use photos, comments, and postings from these websites as evidence unless the offering party can substantiate the website and demonstrate that the information obtained is authentic. In particular, in A.B.v. State, the Supreme Court of Indiana criticized the party’s failure to substantiate the MySpace website itself.48 This failure caused an evidentiary gap for the central components in the criminal harassment charge. In this case, the juvenile defendant wrote a “vulgarity-laced tirade” against the principal of her middle school on MySpace.49 The Court focused on the fact that the juvenile’s statements were in a private setting amongst friends and unlikely to reach the principal’s awareness.50 However, the Court had to do its own independent research56 to understand MySpace since “the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com[.]”52

Moreover, litigants offering social networking-type evidence may also confront authentication challenges.53 For example, in State v. Bell, the criminal defendant filed a motion in limine to exclude certain MySpace communications.54 The defendant challenged the authentication of the printed MySpace communications because there were no assurances that the chats were not altered communications, or created by someone who fraudulently accessed the defendant’s account.55 The court, however, after analyzing the relatively low authentication standard, found that these communications may be authenticated through testimony that (1) the party has knowledge of defendant's e-mail address and MySpace user name, (2) the printouts appear to be accurate records of his electronic conversations with defendant, and (3) the communications contain code words known only to defendant and his alleged victims.49

Yet, the defendant appealed this ruling and challenged that the MySpace information was not properly authenticated as a business record.57 Simply put, no one from MySpace.com, as the custodian of all of the electronic conversations produced on the website, authenticated the user name, records, and printouts of the conversations in dispute.58 But, the appellate court found that the communications were not business records and did not require authentication from the owners of the MySpace website.59

Overall, as social networking websites continue to permeate through society, litigants must understand how to use this type of information to better advocate their position. First, it is imperative that litigants use reliable sources to explain specifically how certain websites operate, and why certain features may bolster or question an authentication argument. For instance, explaining to the court the meaning of “tagging a photo,” having a “private” profile, as well as any security sign-on protections will put any evidence a party seeks to introduce into the proper context. Second, after obtaining the compromising photos and “smoking gun” disclosures from these websites, litigants can undermine any potential reliability and authenticity attacks by demonstrating, among other things, how the information was accessed, when it was accessed, whether the information is still viewable, and a chain of custody. Finally, as with using information from Wikipedia, litigants should reinforce their social networking-type evidence with other generally reliable and complementary sources.

CONCLUSION

Wikipedia and social networking websites are sources that potentially provide litigants with probative information. Adding these valuable online tools to other more traditional forms of research will certainly strengthen the fact-finding stages of litigation. However, as these sources transition from research tools to probative evidence, it behooves the prudent litigant to prepare to defeat the many potential evidentiary challenges. Part I of this article reviewed many potential ways to bolster the reliability and to strengthen the authentication of Wikipedia and social networking evidence. Part II of this article will focus on similar issues for WebMD, YouTube, and company-owned websites.

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End Notes:

• John A. Wirthlin is a third year law student at University of Florida. He is currently working as a Summer Associate at Greenberg Trauig, LLP in Tampa, Florida.

• Brittan L. Mitchell is a former NCSTL staff member. Ms. Mitchell is a member of the Florida Bar and a graduate of Stetson University College of Law. She is currently working on her LL.M. in Taxation from New York University. She practices law in Inverness, Florida at Mitchell & Mitchell, PLLC.

1 See e.g. Campbell v. Sec’y of Health and Human Serv., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006).
2 See e.g. United States v. Villanueva, 315 Fed. Appx. 845 (11th Cir. 2009); United States v. Boyd, No. 3:07-CR-003, 2007 WL 4244974 at *1, *1-2 (E.D. Tenn. Nov. 30, 2007).
3 See e.g. Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007) available at http://caselaw.lp.findlaw.com/data2/circs/3rd/072088p.pdf.
4 Non-Wikipedia Disclaimers, http://en.wikipedia.org/wiki/Wikipedia:Non-Wikipedia_disclaimers (last visited July 1, 2009) (listing disclaimers from a variety of online sources of information including many of the sources listed in this article).
5 Britannica Corporate Site, Usage Agreement, http://corporate.britannica.com/termsofuse.html (last visited July 2, 2009) (containing warranties about use of information).
6 Microsoft Service Agreement, Item 20 “We make no warranty,” http://help.live.com/help.aspx?project=tou&mkt=en-us (last modified May 2009).
7 Bartleby.com User Agreement , Disclaimers of Warranties & Limitation of Liability, http://www.bartleby.com/sv/terms.html (last visited July 2, 2009).
8 The Associated Press, Terms and Conditions of Use, http://www.ap.org/pages/about/terms.html (last visited July 2, 2009).
9 The New York Times, Terms of Service, Representations and Warranties, http://www.nytimes.com/ref/membercenter/help/agree.html (last visited July 2, 2009).
10 The Wall Street Journal, Subscriber Agreement and Terms of Use, Disclaimers of Warranties and Limitations on Liability, http://online.wsj.com/public/page/subscriber_agreement.html (updated April 8, 2009).
11 The Associated Press, Terms and Conditions of Use, http://www.ap.org/pages/about/terms.html (last visited July 2, 2009).
12 The New York Times, Terms of Service, Representations and Warranties,
13 Wikipedia General Disclaimer, http://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (last visited July 6, 2009).
14 WebMD “Additional Information” http://www.webmd.com/about-webmd-policies/additional-info?ss=ftr (last visited July 2, 2009).
15 The following cases provide a few examples of the variety of Wikipedia citations: State v. Harris, 763 N.W.2d 560, ¶12 & n.5 (Wis. App. 2009) (unpublished table decision) (finding Wikipedia an appropriate tool to define the popular meaning of the slang term “baby mama”); Aubin v. Resid’l. Funding Co., 565 F.Supp. 2d 392, 397 (D. Conn. 2008) (allowing Wikipedia to serve as evidence “that the average consumer would believe that “business days” are confined to “Monday through Friday.”); Sanchez v. State, 275 S.W.3d 901, 905 & n.7 (Tex. Crim. App. 2009) (providing the definition for Promethazine in a criminal misdemeanor case); Murphy v. KMART Corp., 255 F.R.D. 497,509 & n. 4 (D.S.D. 2009) (citing Wikipedia references in an employment suit based on the “court’s independent research”); State v. Swope, 762 N.W.2d 725, 729 & n. 3 (Wis. App. 2008) (defining CSI and other crime dramas using Wikipedia articles as support for the examination of an FBI agent); Chaill v. Astrue, No. 07-CV-03432-NKL, 2008 WL 3978342, n. 8 (W.D. Mo. Aug. 25, 2008) (defining the medical term “Intravenous Immunoglobulin” in an appeal from a denial of a social security claim).
16 See e.g. Goodreau v. Williams, No. 3:08-0725, 2009 WL 819487, slip op. at 2 n. 1 (M.D. Tenn. Mar. 27, 2009) (skeptically citing Wikipedia for the definition of Chelaton Therapy: “While this encyclopedia is itself controversial, it does provide citation to a number of studies and articles on Chelaton Therapy.”)
17 Wikipedia General Disclaimer, supra n. 13 (emphasis in original text).
18 State v. Webb, No. COA08-186, 671 S.E.2d 71, *3 & n. 2 (N.C. App. Nov. 18, 2008) (unpublished table decision).
19 Id. at *1.
20 Id. at *3.
21 Id
22 Id. at *3 & n.2.Id. at *1.
23 Id
24 Palisades Collection, LLC v. Graubard, No. A-1338-07T3, 2009 WL 1025176 (N.J. Super. App. Div. April 17, 2009) (per curiam), available at http://www.consumerlaw.org/unreported/content/Graubard.pdf.
25 Id. at *1.
26 Id. at *2.
27  at *3.
28 Id.
29 See e.g. State v. Harris, 763 N.W.2d 560, ¶12 & n.5 (Wis. App. 2009) (unpublished table decision) (finding additional support for the definition of “baby mama” from other sources that confirmed the Wikipedia definition). See also Aubin v. Resid’l. Funding Co., 565 F.Supp. 2d 392, 397 (D. Conn. 2008) (finding additional support for the definition of “business days” from sources other than Wikipedia).
30 Wikipedia: Verifiability, http://en.wikipedia.org/wiki/Wikipedia:Verifiability (last visited July 11, 2009) (stating that statements should be sourced to published reliable information).
31 Wikipedia: No Original Research, http://en.wikipedia.org/wiki/Wikipedia:No_original_research (last visited July 11, 2009) (stating that Wikipedia requires reliable sources as references to ensure that original thought and opinions will not be published).
32 Wikipedia: Neutral Point of View, http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view (last visited July 11, 2009) (indicating the policy to represent all published views on a particular topic without bias).
33 Wikipedia: How to Edit a Page, http://en.wikipedia.org/wiki/How_to_edit (last visited July 11, 2009).
34 Way Back Machine, http://www.archive.org/index.php (last visited July 2, 2009).
35 However, the Way Back Machine might have its own evidentiary hurdles. See Tracey Rich, Find Evidence on Your Opponent’s Website, NAT’L L.J., (July 15, 2008), available at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202422968612 (listing cases that challenged the Way Back Machine as hearsay and authentication issues).
36 Wikipedia Help: Page History, http://en.wikipedia.org/wiki/Help:Page_history (last visited July 11, 2009).
37 Wikipedia Help: Page History, supra n. 36
38 Wikipedia Help: Page History, supra n. 36 (providing a step-by-step direction to interpreting the various edits made on a particular article).
39 For a discussion on how lawyers use social networking websites to assist lawyers with jury selection and voire dire see Christopher B. Hopkins, Internet Social Networking Sites for Lawyers, TRIAL ADVOC. Q. (The Fla. Def. Law. Assoc. Spring 2009); Julie Kay, Social Networking Sites Help Vet Jurors, NAT'L L.J., (Aug. 13, 2008), available at http:// www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423725315&rss=ltn (last visited July 6, 2009).
40 See, e.g., Campbell v. State, No. 51021, 2009 WL 1424487 at *1 (Nev. Jan. 8, 2009) (holding that it was not an abuse of discretion for the trial court to allow a MySpace video and the corresponding transcripts into evidence).
41 For instance, during an interview, a partner at McDermott Will & Emery mentioned that he often used the various social networking websites for research and fact-finding. He provided an example of benefiting from social networking research: “in one case, a plaintiff claimed [his] client drove him out of business. The opposing counsel wanted to paint the plaintiff as a poor, loving family man. . . . [He] found on MySpace that the plaintiff collects antique Jaguar cars, and is president of a Jaguar club. [He} also saw compromising photos that showed the plaintiff is not the family man he claimed to be. The plaintiff also talked about the case and the judge on the site.” He continued, “I make it a practice to use as many sources as I can come up with to find information about the other side. . . .We used to run LexisNexis; we still do that. We always look at cases, and now we use the Internet, Google, and social networking sites.” Oliva Clark, Using the Web to Network, Chicago Lawyer (March 6, 2009) available at http://www.chicagolawyermagazine.com/2009/03/06/using-the-web-to-network/ (quoting an interview with Geoffrey Vance, a partner at McDermott Will & Emery).
42 D. Findlay, Tag! Now You’re Really “It” What Photographs on Social Networking Sites Mean for the Fourth Amendment, 10 N.C. J. L. & TECH. 171, 177 (Fall 2008).
43 Id.
44 Id. at 178 & n. 24 (citing Oldham v. Jackson and Smith Excavating, Inc., No. 06-CVS-642 (Chatham County Super. Ct., June 11, 2008).
45 Campbell, 2009 WL 1424487 at *1.
46 Id..
47 Id.
48 A.B. v. State, 885 N.E.2d 1223, 1224 (Ind. 2008).
49 Id. at 1225.
50 Id. at 1227.
51 Id. at 1224-1225 (providing a court-researched definition of the workings of MySpace and the difference between public and private posting forums).
52 Id.
53 In St. Louis Univ. v. Meyer, No. 407CV01733 (E.D. Mo. Jan. 12, 2009), a Missouri lawyer argued in a memorandum in support of a motion in limine that the court should disallow certain Facebook evidence. Specifically, the defendant argued that any statements regarding “blog posting” or “facebook” were inadmissible hearsay evidence without any corresponding exception. The outcome of this particular motion is not yet available; however, it is likely that litigants will continue to challenge Facebook evidence on similar grounds.
54 State v. Bell, 882 N.E.2d 502, 511-512 (Ohio C.P. 2008).
55 Id.
56 Id.
57 Id.State v. Bell, CA2008-05-044, 2009 WL 1395857 (Ohio Dist. Ct. App. May 18, 2009).
58 Id.
59 Id.