Wikipedia Creates Concerns Aplenty About the Web's Reliability

Although the online encyclopedia Wikipedia recently added its 1 millionth English-language article, controversy over the value of its content continues. (See, eg, Randall Stross, 'Anonymous Source Is Not the Same as Open Source,' NY Times, Section 3, Page 5, March 12, 2006; 'Writing for Wikipedia,' NY Times, Letters, Section 3, March 19, 2006.) Concerns arise because Wikipedia has no single editor, and anyone (or virtually anyone) can add a new entry or edit an existing one.

Sometimes an entry can be overtly suspect, such as the recent change to the bio for a congressman that included the statement 'he likes to beat his wife and children.' See, Yuki Noguchi, 'Wikipedia's Help From the Hill,' Washington Post, A21, Feb. 9, 2006.

However, more problematic may be entries that contain accidental factual errors, sloppy and unclear writing or intentional but subtle misrepresentations designed to favor a partisan view of a topic.

Reliability concerns are in no way limited to Wikipedia, but pervade legal research done on the Internet.

Citing to an incorrect historical date or a wrong statistic or quotation can lead to trouble for people who rely on the mistaken statements, whether that is a high school student writing a paper or a business executive preparing a business proposal.

The 'Wikipedia issue' ' and the broader problem of the validity of Web content in general ' should be of particular concern for lawyers, whether they are preparing briefs, researching memoranda or letters to clients, or searching for information on adverse parties or their counsel.

The New York State Bar Association has opined that, to the extent an attorney in performing legal research relies on information obtained from the searching of Internet sites, the attorney's duty under Canon 6 of the Code of Professional Responsibility to represent clients competently 'requires that the attorney take care to assure that the information obtained is reliable.' NYSBA Committee on Professional Ethics, Op. 709, at 3 (Sept. 16, 1998). Thus, lawyers performing research on the Web must focus on the reliability of what they find there.

Certainly, there is much on the Web that is reliable. Legislative bodies, courts, governmental agencies and public entities place a great deal of important information on their sites. As a result, just as with computerized research using Westlaw and Lexis, factual information and data that in the past would have taken days and hours to retrieve are now available in a matter of seconds. (Note: The Official Reports Style Manual (2002 edition), prepared by the New York State Law Reporting Bureau, has specific rules for the citation of electronic cases. See, www.courts.state.ny.us/reporter/New_Styman.htm. Interestingly, the bureau has indicated that changes to the manual will be posted online at www.courts.state.ny.us/reporter/styman_menu.htm.)

Indeed, one can argue that a researcher who does not find and use information placed on a governmental site by a civil servant for the benefit of the public is making a big mistake. See, eg, N.Y.C. Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 3 Misc. 3d 925 (Queens Co. Civ. Ct. 2004).

Citing the Web

Courts frequently cite information available on the Web. For example, in Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001), the New York Court of Appeals cited homicide statistics maintained by governmental agencies and traced a gun's ownership from the site of the Bureau of Alcohol, Tobacco and Firearms.

The U.S. District Court for Southern District of New York, in Efam Enterprises, LLC v. Travelers Indemnity Co. of America, Inc., 2002 U.S. Dist. Lexis 10046 (S.D.N.Y. May 29, 2002), referred to the sites of both the New York state and Connecticut
departments of insurance to verify the defendant insurer's identity and corporate status.

Even the U.S. Supreme Court has relied on Web information. In Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, 124 S. Ct. 872 (2004), the Court made reference to a consent decree on the Federal Communications Commission's site.

Then, in another decision, U.S. Postal Serv. v. Flamingo Indus. (USA), Ltd., 124 S. Ct. 1321 (2004), the Court referred to the revenue and business of the U. S. Postal Service as detailed on its site.

In addition, in certain instances, information from the Web might be important whether it is accurate or not. For example, in In re DSS Environmental, Inc., 2004 U.S. App. Lexis 21994 (Fed. Cir. Oct. 20, 2004), the Trademark Trial and Appeal Board upheld the examining attorney's rejection of the proposed trademark for 'DUALSAND.'

Relying on, among other things, 13 articles from the Internet, the board found that dual sand was 'a term used in the water and wastewater treatment industries to describe a type of filtration process.'

DSS Environmental sought review of the board's decision refusing to register its trademark, arguing that the articles in the record lacked credibility because their source was the Internet. The circuit court affirmed the board's decision, pointing out that the articles were not relied on for their accuracy, but merely to ascertain how the term 'dual sand' was used in the context of water wastewater filtration.

Some courts have resisted the use of Internet sources. One court has indicated that it viewed the Internet 'warily and wearily' as a 'large catalyst for rumor, innuendo, and misinformation' because '[a]nyone can put anything on the Internet' and sites are not 'monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.'

Moreover, the court pointed out, hackers can adulterate the content on sites. St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D.Tex. 1999). The Bluebook declares that many Internet sources 'do not consistently satisfy traditional criteria for cite-worthiness.' 'The Bluebook: A Uniform System of Citation,' 18.2.1 (Colom. L. Rev. Ass'n et al. eds., 17th ed. 2000).

Questionable Sources

There are steps attorneys can take to avoid relying on questionable information from the Web while taking advantage of the Internet's convenience, speed and low cost.

First, it is important to know who or what owns the site that contains the potentially useful information.

As discussed above, site information on pages created by government agencies or legislative bodies comes with a degree of reliability (and can usually be identified by the use of .gov as a domain address).

Well-known nonprofit organizations, universities and other reputable institutions, such as national or international media outlets, also can offer reliable information.

Often, it may be difficult to determine who has produced the content or has control over a site. Sometimes the content itself may give some indication of its source or authoritativeness. It is particularly important to review the terms of service and disclaimers that define most Web site access, the lack of which may itself be an indication of the lack of professionalism by the Web site host.

For example, the decision of a special master who denied an evidentiary hearing to a claimant under the Federal Vaccine Act solely based on articles that he 'culled' from the Internet was rejected. The court reviewed the pervasive disclaimers accompanying the articles, including from Wikipedia, which expressly warned readers about the fallibility of the site's contents and that any reliance thereon was at the readers' own risk. It concluded that the sites reviewed by the special master did not, on their face, remotely meet reliability requirements and that an evidentiary hearing had therefore been improperly denied. Cambell v. Sec. Health and Human Services, 2006 U. S. Claims Lexis 45 (Fed. Claim Jan. 27, 2006).

Sites that have been around for a long time may be more reliable than newer ones that have just come into existence. Conversely, a site's content that is regularly updated might have more accurate information than one that has not been changed for a lengthy period, although that may depend on whether the information sought is in a state of flux.

Another important factor is the author of the site information. Web pages that do not attribute authorship may be less reliable than sites that do so. A well-known university professor writing on a subject about which she is an expert would likely be a more reliable source than an unknown individual identified only by name and without any indication of expertise.

Content is King

Examining the content of a site is important to determine its reliability. If a site purportedly contains factual information, that information either can or cannot be confirmed. If a lawyer discovers many errors in an article or on a particular Web page, the balance of the information at the site should be questioned. Poorly written Web pages with grammatical or spelling mistakes should lead a lawyer or other researcher to question the site's value.

High-value sites often contain links to other sites; these can be examined, as well. Moreover, it is probably a good sign when high-quality sites link to the site a lawyer is reviewing. However, mere popularity of a site (indicated by high placement in search engines or high number of links in sites and Weblogs) is not, of itself, an indicator of reliability as it may result merely from the entertainment value of the content or an 'urban legend' type of hoax, which is particularly prevalent on the Internet. Accordingly, site linking should be considered only in context with other reliability factors.

Finally, it can be important to verify information found on a site, especially if it may be crucial to a case or the resolution of a client matter. This may take extra effort, and it may seem as if it diminishes the effectiveness of Web research, but the risks of citing to inaccurate information can be severe. (For other explanations of how to evaluate Web content, see, eg, Carole Levitt and Mark Rosch, 'The Lawyer's Guide to Fact Finding on the Internet,' (American Bar Association 2003); see also: www.virtualchase.com/index.shtml; www.llrx.com/features/verifying.htm.

Conclusion

It should be no surprise that the information on different sites, prepared by different companies and individuals, should be evaluated individually. Some of the information may be reliable, and some may not be.

Attorneys should carefully consider all site information they include in their professional correspondence with both courts and clients.

The Internet has dramatically democratized publishing by permitting anyone with access to a computer to have equal access to this most public of forums. The combination of simplified technology, such as Web site templates and anonymous content submission, further complicates the researcher's ability to determine the professionalism and reliability of the source of the content being reviewed. That task is not likely to be simplified in the future.

At the same, lawyers are increasingly being required to use the Internet to perform such functions as reviewing court sites for filings and individual rules or to perform essential research. Accordingly, lawyers should cite Web sources with care.

And, of course, they should not simply neglect the more traditional resources that lawyers used for research in the past.

Although the online encyclopedia Wikipedia recently added its 1 millionth English-language article, controversy over the value of its content continues. (See, eg, Randall Stross, 'Anonymous Source Is Not the Same as Open Source,' NY Times, Section 3, Page 5, March 12, 2006; 'Writing for Wikipedia,' NY Times, Letters, Section 3, March 19, 2006.) Concerns arise because Wikipedia has no single editor, and anyone (or virtually anyone) can add a new entry or edit an existing one.

Sometimes an entry can be overtly suspect, such as the recent change to the bio for a congressman that included the statement 'he likes to beat his wife and children.' See, Yuki Noguchi, 'Wikipedia's Help From the Hill,' Washington Post, A21, Feb. 9, 2006.

However, more problematic may be entries that contain accidental factual errors, sloppy and unclear writing or intentional but subtle misrepresentations designed to favor a partisan view of a topic.

Reliability concerns are in no way limited to Wikipedia, but pervade legal research done on the Internet.

Citing to an incorrect historical date or a wrong statistic or quotation can lead to trouble for people who rely on the mistaken statements, whether that is a high school student writing a paper or a business executive preparing a business proposal.

The 'Wikipedia issue' ' and the broader problem of the validity of Web content in general ' should be of particular concern for lawyers, whether they are preparing briefs, researching memoranda or letters to clients, or searching for information on adverse parties or their counsel.

The New York State Bar Association has opined that, to the extent an attorney in performing legal research relies on information obtained from the searching of Internet sites, the attorney's duty under Canon 6 of the Code of Professional Responsibility to represent clients competently 'requires that the attorney take care to assure that the information obtained is reliable.' NYSBA Committee on Professional Ethics, Op. 709, at 3 (Sept. 16, 1998). Thus, lawyers performing research on the Web must focus on the reliability of what they find there.

Certainly, there is much on the Web that is reliable. Legislative bodies, courts, governmental agencies and public entities place a great deal of important information on their sites. As a result, just as with computerized research using Westlaw and Lexis, factual information and data that in the past would have taken days and hours to retrieve are now available in a matter of seconds. (Note: The Official Reports Style Manual (2002 edition), prepared by the New York State Law Reporting Bureau, has specific rules for the citation of electronic cases. See, www.courts.state.ny.us/reporter/New_Styman.htm. Interestingly, the bureau has indicated that changes to the manual will be posted online at www.courts.state.ny.us/reporter/styman_menu.htm.)

Indeed, one can argue that a researcher who does not find and use information placed on a governmental site by a civil servant for the benefit of the public is making a big mistake. See , eg , N.Y.C. Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 3 Misc. 3d 925 (Queens Co. Civ. Ct. 2004).

Citing the Web

Courts frequently cite information available on the Web. For example, in Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001), the New York Court of Appeals cited homicide statistics maintained by governmental agencies and traced a gun's ownership from the site of the Bureau of Alcohol, Tobacco and Firearms.

The U.S. District Court for Southern District of New York, in Efam Enterprises, LLC v. Travelers Indemnity Co. of America, Inc., 2002 U.S. Dist. Lexis 10046 (S.D.N.Y. May 29, 2002), referred to the sites of both the New York state and Connecticut
departments of insurance to verify the defendant insurer's identity and corporate status.

Even the U.S. Supreme Court has relied on Web information. In Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, 124 S. Ct. 872 (2004), the Court made reference to a consent decree on the Federal Communications Commission's site.

Then, in another decision, U.S. Postal Serv. v. Flamingo Indus. (USA), Ltd., 124 S. Ct. 1321 (2004), the Court referred to the revenue and business of the U. S. Postal Service as detailed on its site.

In addition, in certain instances, information from the Web might be important whether it is accurate or not. For example, in In re DSS Environmental, Inc., 2004 U.S. App. Lexis 21994 (Fed. Cir. Oct. 20, 2004), the Trademark Trial and Appeal Board upheld the examining attorney's rejection of the proposed trademark for 'DUALSAND.'

Relying on, among other things, 13 articles from the Internet, the board found that dual sand was 'a term used in the water and wastewater treatment industries to describe a type of filtration process.'

DSS Environmental sought review of the board's decision refusing to register its trademark, arguing that the articles in the record lacked credibility because their source was the Internet. The circuit court affirmed the board's decision, pointing out that the articles were not relied on for their accuracy, but merely to ascertain how the term 'dual sand' was used in the context of water wastewater filtration.

Some courts have resisted the use of Internet sources. One court has indicated that it viewed the Internet 'warily and wearily' as a 'large catalyst for rumor, innuendo, and misinformation' because '[a]nyone can put anything on the Internet' and sites are not 'monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.'

Moreover, the court pointed out, hackers can adulterate the content on sites. St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D.Tex. 1999). The Bluebook declares that many Internet sources 'do not consistently satisfy traditional criteria for cite-worthiness.' 'The Bluebook: A Uniform System of Citation,' 18.2.1 (Colom. L. Rev. Ass'n et al. eds., 17th ed. 2000).

Questionable Sources

There are steps attorneys can take to avoid relying on questionable information from the Web while taking advantage of the Internet's convenience, speed and low cost.

First, it is important to know who or what owns the site that contains the potentially useful information.

As discussed above, site information on pages created by government agencies or legislative bodies comes with a degree of reliability (and can usually be identified by the use of .gov as a domain address).

Well-known nonprofit organizations, universities and other reputable institutions, such as national or international media outlets, also can offer reliable information.

Often, it may be difficult to determine who has produced the content or has control over a site. Sometimes the content itself may give some indication of its source or authoritativeness. It is particularly important to review the terms of service and disclaimers that define most Web site access, the lack of which may itself be an indication of the lack of professionalism by the Web site host.

For example, the decision of a special master who denied an evidentiary hearing to a claimant under the Federal Vaccine Act solely based on articles that he 'culled' from the Internet was rejected. The court reviewed the pervasive disclaimers accompanying the articles, including from Wikipedia, which expressly warned readers about the fallibility of the site's contents and that any reliance thereon was at the readers' own risk. It concluded that the sites reviewed by the special master did not, on their face, remotely meet reliability requirements and that an evidentiary hearing had therefore been improperly denied. Cambell v. Sec. Health and Human Services, 2006 U. S. Claims Lexis 45 (Fed. Claim Jan. 27, 2006).

Sites that have been around for a long time may be more reliable than newer ones that have just come into existence. Conversely, a site's content that is regularly updated might have more accurate information than one that has not been changed for a lengthy period, although that may depend on whether the information sought is in a state of flux.

Another important factor is the author of the site information. Web pages that do not attribute authorship may be less reliable than sites that do so. A well-known university professor writing on a subject about which she is an expert would likely be a more reliable source than an unknown individual identified only by name and without any indication of expertise.

Content is King

Examining the content of a site is important to determine its reliability. If a site purportedly contains factual information, that information either can or cannot be confirmed. If a lawyer discovers many errors in an article or on a particular Web page, the balance of the information at the site should be questioned. Poorly written Web pages with grammatical or spelling mistakes should lead a lawyer or other researcher to question the site's value.

High-value sites often contain links to other sites; these can be examined, as well. Moreover, it is probably a good sign when high-quality sites link to the site a lawyer is reviewing. However, mere popularity of a site (indicated by high placement in search engines or high number of links in sites and Weblogs) is not, of itself, an indicator of reliability as it may result merely from the entertainment value of the content or an 'urban legend' type of hoax, which is particularly prevalent on the Internet. Accordingly, site linking should be considered only in context with other reliability factors.

Finally, it can be important to verify information found on a site, especially if it may be crucial to a case or the resolution of a client matter. This may take extra effort, and it may seem as if it diminishes the effectiveness of Web research, but the risks of citing to inaccurate information can be severe. (For other explanations of how to evaluate Web content, see, eg, Carole Levitt and Mark Rosch, 'The Lawyer's Guide to Fact Finding on the Internet,' (American Bar Association 2003); see also: www.virtualchase.com/index.shtml; www.llrx.com/features/verifying.htm.

Conclusion

It should be no surprise that the information on different sites, prepared by different companies and individuals, should be evaluated individually. Some of the information may be reliable, and some may not be.

Attorneys should carefully consider all site information they include in their professional correspondence with both courts and clients.

The Internet has dramatically democratized publishing by permitting anyone with access to a computer to have equal access to this most public of forums. The combination of simplified technology, such as Web site templates and anonymous content submission, further complicates the researcher's ability to determine the professionalism and reliability of the source of the content being reviewed. That task is not likely to be simplified in the future.

At the same, lawyers are increasingly being required to use the Internet to perform such functions as reviewing court sites for filings and individual rules or to perform essential research. Accordingly, lawyers should cite Web sources with care.

And, of course, they should not simply neglect the more traditional resources that lawyers used for research in the past.