Aug 12 2009

Use of Wikipedia and hyperlinks in Scottish courts

Gordon v Lynch, 2009 CSOH 116, is a decision of Lord Woolman on quantum in a personal injuries case notable only, so far as this blog is concerned, for its use of a hyperlink: something I have never seen before in a Scottish Courts decision1. The third paragraph begins “ As a result of the accident, Sean sustained traumatic brain injury.”

The European Court of Human Rights has referred to Wikipedia a few times; but only, so far as I know, for uncontroversial propositions. In Ivanov v Russia, 2007 ECHR 452, it did so in a similar manner to Lord Woolman: see paragraph 14. So far as I know, however, Wikipedia has never been regarded as an authority for anything in a Scottish or English court2.

The technical first here, the use of hyperlinking in a reported decision, is welcome: presumably its use will depend on the computeracy of the author.

But the use of Wikipedia as an authority is highly questionable. It has been used as such in many American first-instance cases, perhaps particularly in asylum cases because it is a handy source of instant reference on foreign parts, but that use has not been universally approved. I adopt what one commentator said last year:

… there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. The quoted part of the definition was added … when the case was in progress at the district court. I have no reason to think that the change was made by anyone associated with the litigants (and the Wikiscanner check reveals nothing tell-tale, even when I check all changes from that IP address), but neither can we be sure, I think, that no such manipulation took place. And while it’s important not to overestimate the risk of manipulation here — as I pointed out, the judges are likely relying on Wikipedia to support their preexisting understanding of this quite common term, rather than as an expert source that would provide such an understanding — there does seem to be some danger here. It seems possible that the judges, who after all quoted the definition as authoritative, would indeed be influenced by nuances of the definition even if they already agreed with the definition’s main thrust.

And, second, I don’t see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don’t know who wrote the definition, so we can’t rely on his knowledge. This doesn’t seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible “wisdom of crowds.” Dictionaries and encyclopedias aren’t perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.

Again, I should stress that for tangential and uncontroversial matters, Wikipedia may be quite good enough.

I’m a fan of Wikipedia, and I would add that it can also be a useful check on apparently uncontroversial statements; particularly because the convention on the discussion pages is that statements and references there are not subsequently edited but remain as an archive. Take the repeated references to Giovanni di Stefano in the London media as a ‘lawyer’. His Wikipedia page sometimes agrees, depending on who last edited it. But the discussion pages seem to make the truth pretty plain.

Postscript, 4 September 2009

Scotcourts have today substituted an opinion without the hyperlink on the website; same address as before.

  1. When reported on BAILII, of course, hyperlinks are commonly used for citations of earlier authority. [back]
  2. One decision contains this passage: “What follows is taken from either the uncontested evidence of the Defendants or the broader history set out in the wikipedia online entry on Satmar at en.wikipedia.org/wiki/Satmar (Hasidic_dynasty) that the parties were informed was accessed by the court on 14th February 2008“. But this seems to have been accepted by the parties as accurate. [back]
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8 comments published

8 comments published to “Use of Wikipedia and hyperlinks in Scottish courts”

  1. Hector MacQueenNo Gravataron 14 Aug 2009 at 11:28 pm

    The link seems to have been removed.

  2. Iain NisbetNo Gravataron 15 Aug 2009 at 1:36 am

    Jonathan,

    I note, having read it on Hector MacQueen’s Scots Law News (http://www.law.ed.ac.uk/sln/blogentry.aspx?blogentryref=7867) that the hyperlink has subsequently been removed.

    Maybe your comments have led to a rethink?

    Regards,

    Iain

  3. JMNo Gravataron 15 Aug 2009 at 1:52 pm

    Hmmph. I still get the hyperlink, both on Scotcourts and on BAILII , even after clearing out the cache. The source code (substituting [ and ] for < and > so it doesn’t break) is:

    [p class=MsoNormal style=’line-height:200%’][span lang=EN-GB style=’line-height:
    200%;font-family:Times’][3] As a result of the accident, [/span][span
    lang=EN-GB style=’font-family:Times’]Sean sustained [/span][span lang=EN-GB
    style=’line-height:200%;font-family:Helvetica’][a
    href=”http://en.wikipedia.org/wiki/Traumatic_brain_injury”][span
    style=’font-family:Times;color:windowtext;text-decoration:none’]traumatic brain
    injury[/span][/a][/span][span lang=EN-GB style=’line-height:200%;font-family:
    Times’]. Initially, he had a [/span][span lang=EN-GB style=’font-family:Times’]score
    of 3 on the Glasgow Coma Scale, indicating a state of deep unconsciousness. He
    also suffered [/span][span lang=EN-GB style=’line-height:200%;font-family:Times’]the
    following injuries:[/span][/p]

    I wonder if visibility differs between browsers? I can see the hyperlink using Safari 4.0.3 and Firefox 3.5, both on Mac; but the code quoted above is very clunky (I surmise this opinion was, as usual, originally written in Microsoft Word and then simply saved as a webpage) and perhaps doesn’t appear on other browsers or on Windows. I certainly don’t think I have the influence Iain flatteringly credits me with!

  4. LaurenceNo Gravataron 15 Aug 2009 at 2:44 pm

    Still getting the link over here (Ubuntu 9.04, FF 3.0.13)!

  5. Hector MacQueenNo Gravataron 18 Aug 2009 at 1:50 pm

    The phrase wasn’t visibly hyperlinked on my browser but when I tried to click on the words this morning having read these comments I went through to the Wikipedia entry immediately. So I guess the technical suggestions above are borne out, and there hasn’t been any adjustment on the courts website after Jonathan’s cautionary words! I’ll change Scots Law News accordingly.

  6. JMNo Gravataron 18 Aug 2009 at 2:03 pm

    @Hector MacQueen: Raises the question whether there may not be many more links through to Wikipedia or indeed anywhere else which don’t show up… perhaps this wasn’t a ‘first’ as I suggested.

  7. Hector MacQueenNo Gravataron 24 Aug 2009 at 11:07 pm

    Who’s going to start clicking on Court of Session opinions at random to see what they get? 🙂 Might be a long and probably fruitless exercise for a judicial generation or two.

  8. JMNo Gravataron 25 Aug 2009 at 5:20 pm

    @Hector MacQueen: Well, certainly not me! You could automate the process to some extent by using a bookmarklet to extract any links in a given page: there’s one for Safari here and either this or something similar would work in other browsers. Someone with more coding skills might write a search script for multiple pages or a complete site.

    I did ask Bailii for references to Wikipedia in Scots and English decisions, but this search won’t pick up hyperlinks. Note paragraph 26 of Misick: “For those interested, the Wikipedia entry on jury trial has a surprisingly full, comparative treatment of the issue. The “positive belief” about jury trial in the US, is contrasted with sentiment in other countries in which it is considered “bizarre and risky” for issues of liberty to be entrusted to untrained laymen.” This strikes me as a rather naive use of Wikipedia, and it is not hyperlinked to any particular edition of the article in question.

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