Posts about law

Libel and blogs

Glenn Reynolds writes a good paper on libel and bloggers from both a legal and a cultural perspective. Wish it were in HTML but the PDF is here.

Also, see the list of legal actions against bloggers maintained most helpfully by Eric Robinson of the Media Law Research Center. And while we’re at it, here‘s my recent Comment is Free post on libel law in the age of the internet. I’m working with folks who are trying to put together a web site that gives you the top 10 things you need to know to stay out of court; stay tuned.

The cost of speech

Libels laws are outmoded and increasingly dangerous, for they threaten to chill and silence the voice of the public even as we finally have our forum to speak: the internet.

Oh, I know that some would argue we need libel laws now more than ever because, thanks to the internet, anybody can say anything about anyone. See a £17,200 libel award just granted to a politician against a Yahoo user who called him a “lard brain,” a “nazi,” and much worse. See the John Siegenthaler Sr. case in Wikipedia, in which one misfit inserted a scurrilous and ludicrous charge against him into his encylopedia biography as much hand-wringing ensued. And see this list of legal actions against bloggers in the U.S., including Banks v. Milum, the first known blogging case to go to trial; the blogger lost, to the tune of $50,000.

I say we need libels laws less today. Law professor and blogger Susan Crawford once suggested over coffee (and I hope she doesn’t mind my continued quoting of this) that libel laws are out-of-date in a time when the victims of defamation have the means of response via the internet that they never had in print or broadcast. Keep in mind that in America, where we treasure free speech to an admirable and fanatical degree — the FCC and its indecency policing excepted — we are luckier than most. It is harder to bring a successful libel action here. And Section 230 protects hosts of interactivity from actions against them as a result of content put on their services by others. Britain and other nations aren’t so lucky.

So the fear of litigation and loss is starting to pile up. And my fear, in turn, is that this gives counsel to media and technology companies as well as individual citizens the world around the arguments to kill interaction and citizens media just as they come into their own — because they are becoming just too risky. It is already gutsy to host Comment is Free; when does it become too gutsy? I dread returning to a world of centralized, controlled, filtered, and official content. We, the citizens, will lose our voice because no one will want to risk speaking or letting us speak.

This is a certainly case of throwing the baby out with the bathwater. Consider Wikipedia: Because just one fool added something foolish there, is that sufficient reason to discard more than one million articles filled with generous human knowledge? If one twit leaves an insult in one blog comment on is that cause to shut off the conversation there? Do we want a world where anyone can tell horrible lies about anyone? Of course, not. But do we also want a world where our courts are clogged with efforts to mediate playground fits of name-calling (fits that few people hear, by the way)? Do we need the courts to confirm for us that the bozo ranting in the corner is, indeed, a bozo? Rarely. But these few episodes of bad temper have given the internet cultural cooties: Interaction is judged on the actions of the few twits and not on the value of empowering the people as a whole to speak.

One response to this is education. We need to offer the practitioners of citizens’ media and interactivity help in understanding how to protect themselves in libel, defamation, and other legal issues. In the U.S., I’m about to work with some people who will, at long last, bring such help online. (Law bloggers be warned: I’ll soon be appealing for your help.)

But the real response must be to update the law for an entirely different media world controlled by everyone and not by the few. If that happens through the courts, the damage done in the meantime will be crippling or, in some cases, fatal for interactivity.

We need to effect change legislatively — and not just to libel law but to any law that regulates speech. I have little hope of that happening on its own. After all, politicians are often the objects — often deservedly — of much of the ire expressed by citizens online. In New Jersey, a state legislator proposed a law to require internet services, including online newspapers, to obtain verified names and addresses of commenters or face the liability for anything they say. He said he wanted to bring civility to this nasty internet; one wonders why he hasn’t wanted to outlaw shouting at football games. But the bill was hooted down by bloggers as absurd, unenforceable, and unconstitutional and the lawmaker slunk away.

Let’s say we actually found an intelligent lawmaker with the courage to defend free speech and try to change the law. He or she would be accused of defending internet horrors. It’s quite like the problem of the Federal Communications Commission and its indecency fines against Howard Stern, Janet Jackson, and words starting with F or S: Anyone who tries to stand up and fight for the First Amendment and free speech will be portrayed as the friend of smut.

So how do we give cover to lawmakers and politicians to stand up for — or at least not stand in the way of — the right of people to speak through this new medium? How do we get them to govern for the rule, not the exeception? How do we update the law to understand the new world of connectivity and conversation? There are no easy, immediate answers. But if we do not begin the discussion, we will leave the fate of the internet interactivity to the litigious.

So I would like to see a summit on the principles of the law and speech and interactivity in the internet age. Before we recast the laws, we must understand what is at stake and what we are trying to protect — as well as what we no longer need the law to protect. Because we need to have this discussion at that level, I think it needs to be a worldwide meeting of great legal minds and advocates of interactivity as well as the companies — media, telecommunications, online — who fear that it is their deep pockets at stake. It can happen in a hotel or it can happen online. Any takers?

: LATER: Geanne Rosenberg, head of the journalism program at CUNY’s Baruch and an attorney to boot, said this about that:

Media companies have been united in opposing libel actions for many years (through MLRC [Media Law Research Center], formerly LDRC) in part to make it very difficult for plaintiffs’ lawyers to succeed and thus to really discourage lawyers from taking on libel cases. If bloggers, their insurance companies and other non-media company defendants start losing cases and/or paying out settlements, that will actually help to fund what could quickly mushroom into a force of plaintiffs’ lawyers eager to take on these cases, cases that would have become potentially lucrative as a result of any payouts. So the risk you raise is very real. There’s also a risk that careless postings by bloggers that lead to litigation could also result in legal decisions that set precedents damaging to free speech/free press interests. So the risk is two-fold — harmful legal precedents and a new funding source for lawyers bringing libel suits.

Speech not free in Britain

A participant on a Yahoo message board has been ordered to pay 10,720 pounds for calling a politician a “lard brain” and a “Nazi.” This endangers the conversation in Britain.

: And on the same day, here’s a blogger and author threatening to sue blogger Oliver Kamm after a spat over an unfavorable book review.

Where does this end: suing schoolchildren for calling each other poopy pants? If you don’t know where it will end, you shouldn’t start.

Throwing the book at blogs

Last week, I spoke to the Media Law Resource Center and a roomful of top media lawyers about blogs and other trends blowing up media. (My skeletal PowerPoint is here.)

While there, I pushed the group to take responsibility for helping train bloggers and other citizens in libel law, copyright, and other relevant law. We need to help bloggers not get into trouble if they don’t have to or to defend themselves well if they do. We also need to lobby to protect bloggers — yes, bloggers — under shield laws if others who perform acts of journalism get that protection; we need to protect them from SLAPP harassment; and more. This is why I’m back raising funding for a Citizens Media Center at CUNY; this is one among many reasons why I’m joining with Jarvis Coffin of Burst and others to form a citizens’ media trade organization.

: I learned at the session at Eric Robinson at MLRC had compiled a list of suits against or involving bloggers. It’s a sobering list. I’ll quote and excerpt the salient points; Eric has all the links and details on the MLRC site. And I thank Eric for putting that up:

* California: News Corp. subsidiary News America, publisher of the New York Post, subpoenaed Google to try to find the identity of a blogger who was posting the Post’s “Page 6” daily gossip column in total, except for the advertising. There has been no further action in the case, although the site has been removed.

* Delaware: The Delaware Supreme Court ruled on Oct. 6 reversed a lower court’s decision ordering an ISP to reveal the identity of anonymous posters to a blog operated by the Delaware State News. Smyrna, Del. town councilman Patrick Cahill and his wife are suing the posters and the newspaper for libel over the posted comments. … After a discussion of the nature and reliability of blog postings, the court also dismissed the libel claims, since the statements “were no more than unfounded and unconvincing opinion.”

* Georgia: Atlanta-based employment law firm Fisher & Phillips LLP sued five “John Does,” claiming they published “false and malicious communications” about the firm on the Internet. The firm agreed to dismissal of the case after the court cited it for failure to effectuate service of process.

* Illinois: Emanuel Welch, president of the District 209 (Proviso Township High Schools) school board, and his brother Bill Welch filed suit against blogger Carl Nyberg after Nyberg filed an ethics complaint against Emanuel Welch over his vote in Aug. 2005 to hire Bill Welch as a school custodian. Besides being his brother, Emanuel Welch has represented Bill Welch when he was convicted of drug possession two years earlier. The ethics complaint alleges that Emanuel Welch did not disclose this representation when voting on his brother’s employment. The Welches responded with a libel suit based on postings about the ethics complaint.

* Nevada: A summary judgment motion is pending in this case, in which an Internet marketing company sued the owner of a blog on search engine optimization for libel and publication of trade secrets. The suit, which has been removed from state to federal court, also names several posters to the blog.

* New York: In August, the Appellate Division reversed a trial court ruling dismissing former Cornwall Supervisor Jim Sollami’s defamation case against Tom Sheppard, who publishes The appeals court held that eight of the statements at issue in the case were capable of defamatory meaning and should proceed to trial.

* New York: The court dismissed a libel suit against a New Jersey man for his 45-page Web site detailing his gripes against car insurer, holding that the comments on the site were protected free speech and did not constitute defamation.

* Ohio: Two Internet bloggers were jailed in July on charges related to their posting material critical of a judge and sending him intimidating e-mails. Elsebeth Baumgartner of Oak Harbor and Bryan DuBois of Sandusky were held on charges of intimidation, retaliation and possession of criminal tools (a computer). The pair allegedly libeled and harassed retired Cuyahoga County Judge Richard Markus, who presided over a libel lawsuit based on letters that Baumgartner, a former attorney who was disbarred in 2003, sent to a school board member. That trial ended with a $175,000 verdict against Baumgartner. In April 2004, Judge Markus also declared Baumgartner a “vexatious litigator” under Ohio law after she refused to defend herself in the proceeding. The designation means that Baumgartner’s several existing lawsuits and appeals were dismissed, and that she cannot initiate new litigation without permission of the court. At the start of their criminal trial on Nov. 14, trial judge Shirley Strickland Saffold revoked Baumgartner’s bond and ordered her sent back to jail after Baumgartner said that she would be renewing her motion to have Saffold removed from the case,

* Wisconsin: A radio talk show host who posted and responded to a listener’s e-mail on his blog settled a lawsuit against him for $5,000. WTMJ-AM talk show host Charlie Sykes removed the e-mail within a few hours of posting it in November 2004 post, after he learned that it contained factual errors. But the posting was still available [via] enterprising Internet search three months later. The result: a libel suit. The suit, filed by Spanish Journal Editor Robert Miranda, was settled in return for the station establishing a $5,000 scholarship for high school journalism students.

* U.S. Army: In July, the U.S. Army demoted and fined a soldier for publishing “classified” information on his personal blog. The case led the military to required enlisted personnel to register their blogs with superiors.

: LATER: Please see the comments for various clarifications.

Government should not own copyright

I’m a supporter of copyright (and we can quibble till the bar closes about how much and how long). But I believe that government should not be allowed to own copyright; the people own its copyright and should be able to use material created at public expense however the people damned well choose. That’s why it’s appalling that transit officials are suing over the copyright of subway maps. What the hell do they think their job is? And who do they think owns the subways and the maps? We do.