The Wikipedia Problem
Much discussion about access to justice involves improving the ease of a litigant’s entry into the justice system. But the accessibility of justice itself – as opposed to just entering the justice system – also involves how a litigant manoeuvers between originating application and the decision rendered by the Court. The rules of evidence play a large role in this.
Generally speaking, the more exacting the Court’s evidentiary requirements, the greater the burden on the litigants in terms of cost and trial time.
Of course, there is good reason to require exacting evidence in support of a litigant’s allegations. The duty to search for the truth and arrive at a just result is a heavy one, and unreliable evidence could well lead courts astray. On the other hand, it does not make sense to require that every fact be proven with the strongest possible evidence.
In Laquerre v. Société canadienne d’hypothèques et de logement, the Québec Court of Appeal had to deal with allegations of fraudulent real estate flipping. The Court of Appeal explained that the practice is widespread, and, ostensibly in an attempt to demonstrate how widespread it is, the Court cited the results of a Google search: an article in La Presse, an article from the Organisme d’autoréglementation du courtage immobilier du Québec, an article on canoe.ca, and finally an entry on Wikipedia.
Based on the foregoing, the Court was then able to describe a “flip” to the reader:
En somme, l’image de flip (« retourner vivement quelque chose ») correspond à l’achat d’un immeuble, non pour s’y installer, mais pour une revente rapide, à plus haut prix bien sûr. L’immeuble passe d’un premier propriétaire à un deuxième et de nouveau, sans délai, il passe à un troisième. Le passe-passe est de l’honnête capitalisme s’il ne s’agit que de spéculation sur le marché immobilier. Ou, si un entrepreneur voit le potentiel d’une résidence défraîchie et lui redonne sa pleine valeur par quelques travaux rapides. Le passe-passe devient de l’arnaque si la revente à haut prix est fictive créant une valeur artificiellement gonflée qui trompera le prêteur institutionnel qui s’y fiera.
What seemingly began as an attempt to show how widespread the practice is, became an investigation into the content of what a flip actually is, by referring to sources easily accessible on the internet.
In a system where justice is all too often inaccessible, is this really a bad thing? Certainly not. Background facts that give context to the litigation are not going to be held to the same level of scrutiny as core litigious facts, and rightly so (compare R. v. Spence, at para. 65).
But there’s another question – the Wikipedia Problem. Among external sources cited in situations such as above, is Wikipedia qualitatively different? Generally, anyone can edit a Wikipedia entry at any time, without even attributing the changes to a verified, full name – much less an address to which a subpoena could be sent.
* * *
The Wikipedia Problem concerns the source of the information. Unlike traditional dictionaries and encyclopedia, a Wikipedia entry does not have the formal imprimatur of a recognized authority. The most it can offer is the stamp of approval of an anonymous editor whose qualifications are not immediately obvious.
The Wikipedia Problem dovetails with traditional concerns about the admissibility of hearsay evidence. Indeed, it may well seem that a Wikipedia article is closer to the unsubstantiated “gossip” that the hearsay rules seek to prohibit than a reviewed and edited article from a recognized publisher. While neither the Oxford Encyclopedia source nor the author of the Wikipedia page is available to testify before the Court, there is a certain comfort that comes from relying on a university professor – a recognized expert in the area – as compared to the anonymous Wikipedia editor.
That comfort does not eliminate the strict hearsay concern when citing reputed sources at trial, but it does at least alleviate it. Yet is this comfort justified? Or is it the product of elitist, hierarchical academic thinking?
In many ways, even traditional rules of evidence do not privilege elitist, hierarchical academic thinking. For instance, a witness does not need a university degree to be qualified as an expert, even in a specialized domain of expertise (see R. v. Mohan; see also My Cousin Vinny).
That having been said, an expert can be cross-examined. We don’t require a formal gatekeeper (such as university affiliation) before an expert is recognized, but we know that cross-examination will provide an additional level of scrutiny anyway. Perhaps when it comes to sources for which we are already compromising the traditional rules of hearsay, that initial gatekeeper should be stricter.
On this point, it is worth considering that there is some research indicating that the reliability of Wikipedia entries compares favourably with that of traditional sources, but the results are far from definitive. (Said research can be found referenced on the Wikipedia entry on the “Reliability of Wikipedia”.) Presumably this accuracy varies as a function of some recognizable factors – one might expect, for instance, that information that has remained on a Wikipedia page for years without being removed will be more trustworthy than information posted a few hours ago. One will also gain significant comfort from Wikipedia entries that make assertions supported by footnoted sources (ideally, verified footnoted sources), and Wikipedia entries that cohere with other external sources.
This latter “comfort zone” is perhaps what the Court of Appeal experienced in the Laquerre case cited earlier. The Wikipedia entry seems to have been the best and most comprehensive one dealing with real estate flipping (the Court wrote: “Un dernier texte, sur Wikipedia, a l’avantage de distinguer le flip immobilier légal de celui qui constitue une arnaque” before quoting it more extensively than the other sources), but the Court may only have gained sufficient comfort from it once it observed that the Wikipedia entry was consistent with traditional sources.
The coherence of other sources with the Wikipedia entry thus became a proxy for the missing “imprimatur” of a recognized publisher.
And that seems about right. There is something simple and logical with the use of Wikipedia at trial. As a default position, an accessible and free tool of knowledge should have its place in the courtroom to help establish background facts. It would seem that the search of truth is impeded more by refusing to consult this widely accepted source of knowledge, than by those times a Wikipedia entry ends up being misleading (or just plain false).
This is especially the case if the risk of such epistemological Trojan horses can be greatly reduced by appropriate counter-measures:
- Use of all external sources of non-legal information (i.e., hearsay evidence) should be transparently subjected to the adversarial process. A Wikipedia article that counsel plans on relying upon should be clearly identified as such. The first – and perhaps best – guard against abuse is the recognition by opposing counsel that the Wikipedia article can be safely relied upon.
- When doubt is expressed about the reliability of an external source, proportionate solutions can be considered. Perhaps the relevant extract from the source can be reduced to what is less controversial. Perhaps further sources could be added to the record, in an effort to find some consensus among them. Where an external source cites support from other sources, these foundational sources can be scrutinized. (Or at least clicked.)
- In particular, when a Wikipedia entry is questioned, additional comfort may be gleaned by providing a copy of Wikipedia’s own recording of the edits made to this page. Every Wikipedia page has a comprehensive listing of all the modifications that were made to the page since inception (the “View history” tab). This tool allows the Court to see whether the section of the page relied upon by a party has been left undisturbed for years, or whether it is contentious and has been modified frequently – especially in the recent past.
- Finally, if none of the foregoing provides sufficient comfort to the Court, the latter will always retain the ability to declare the Wikipedia entry inadmissible (compare, e.g., Sanderson v. St-Bruno-de-Montarville (Ville de), at para. 51).