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(UPDATE) Bloggers protected if reposting libelous info
Posted by: McQ on Wednesday, November 22, 2006

At least in California:
The California Supreme Court ruled Monday that bloggers and participants in Internet bulletin board groups cannot be sued for posting defamatory statements made by others.

[...]

The case involved a lawsuit against Ilena Rosenthal, a women's health activist, who created an e-mail list and a newsgroup (alt.support.breast-implant) to discuss issues related to breast implants. Six years ago, she posted a letter written by a man who was highly critical of the efforts of a doctor to discredit advocates of alternative health treatments.

In the letter, the doctor, Terry Polevoy, was accused of trying to get an alternative medicine radio program canceled by using "scare tactics, stalking, and intimidation techniques" against the program's producer. Polevy, who maintained a website himself to expose what he called "health fraud and quackery" sued Rosenthal for libel.

She argued that because she did not write the letter herself and instead posted the work of another to her newsgroup, she was immune from suit under a section of the federal Communications Decency Act, passed by Congress in 1966. It protects both Internet service providers and their users from lawsuits.

In today's ruling, the California Supreme court said that granting such broad immunity for posting defamatory statements "has some troubling consequences."

Nevertheless, the court said, "Until Congress chooses to revise the settled law in this area" people who contend they were defamed on the Internet can seek recovery only from the original source of the statement, not from those who re-post it."
Eugene Volokh adds:
Federal law, 47 U.S.C. § 230, provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The California Supreme Court held that this protects not just service providers whose sites are used to post material without the provider's intervention, but also users who personally select which material (written by others) to post. (The Ninth Circuit held the same three years ago, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).) The court also noted:
At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source. Because Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed. We note, however, that many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity.
A long line of cases had already held that when a user posts material on a site, the operator of the site (or of the computer), can't be held liable, even when it's notified of the potentially tortious nature of the activity. Thus, for instance, we wouldn't be liable for libels posted in our comments. But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post. This means that if a commenter posts excerpts from others' work, even the commentator himself would be categorically immune from liability for the contents of those excerpts, at least unless he's "active[ly] involve[d] in the creation of [the] posting," or unless he's conspiring with the original author.

Note that when I say "immune from liability" or "can't be held liable," this is shorthand for "immune from liability except under intellectual property law, communications privacy law, or federal criminal law," see 47 U.S.C. § 230(e)(1).
The first commenter at Volokh's site asks "is this begging for gross abuse?"

Well, probably. Can you think of anything, given human nature, which won't be abused if the potential exists.

But James Joyner notes:
Still, it’s interesting that Internet sites, including blogs, are being held to a lower standard than newspapers. Presumably, this is a recognition of the differing natures of the media. For the most part, bloggers do not have the resources of a big city paper; only a few have anything approaching that type of audience, either.
While the point about the lack of comparable resources may be true, is that enough, or should that be enough, to excuse blogs from the same standard of liability to which newspapers (or any news organization) are held? Joyner correctly notes that most bloggers have nothing near the audience newspapers have, but with the viral nature of the blogsphere, even the smallest blog can potentially reach a very wide audience with a story if picked up by the bigger blogs (much like a local story being picked up by the wire services and going national).

Joyner adds another salient point:
The Internet can certainly be a powerful megaphone and, with clever manipulation of search engine results not particularly difficult for many keywords, the ability to do damage in many ways dwarfs that which was possible previously.
The problem, in reality, is no different that the possibility of defamation through a newspaper except within a newspaper's organization there are safeguards built in to prevent such things from happening (and yes, they still happen, but they're the exception rather than the rule). It is a self-policing mechanism driven by self-interest.

In the blogosphere, no such safeguards exist except within the blog itself. And we've all seen plenty of examples of bloggers who don't care one bit about the possibility that something they may post could defame another unfairly or incorrectly.

Once a rumor or incorrect story is out, it takes on a life of its own. I always remember the words of Ray Donovan, former Sec. of Labor after his acquittal on larceny and fraud shouted to the prosecutor while still in court, "Give me back my reputation!"

That's the concern I have with this sort of abuse. With freedom comes responsibility and in this case the responsibility rests with bloggers to make a good faith effort to verify the validity, truth, or factual efficacy of anything they wish to post before posting it. It is to our own benefit to do so. If we don't, or there are those among us who don't, it is the blogosphere as a whole which eventually suffers. If we want to be taken seriously, we need to make a serious effort in this regard. And we also need to point out and criticize those who don't.

If we don't self-police the 'sphere, you can bet someone else will try.

UPDATE: Michelle Malkin makes an excellent point:
If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I'm liable.

That absurd result is what the ruling seems to suggest and what many bloggers hope it suggests.

But aren't bloggers the ones arguing that we should be treated like MSM journalists? Isn't that what the Apple vs. bloggers case was all about? Remember? Seems to me that some bloggers want to enjoy the benefits of MSM status (fighting for the same coverage as traditional journalists under shield laws, as in the Apple case), but avoid the consequences (getting sued if they re-publish defamatory material online).
I'm not a journalist nor do I pretend to be one on the internet. But as I see it, libel is libel.

I'm not looking for trouble here, but I guess it boils down to me not understanding why a blogger who knowingly posts libelous info shouldn't be held accountable. I can understand not holding the provider or others simply providing access to the internet accountable, but since when, given the definition of libel doesn't say "unless posted by a blogger", should bloggers be exempt? Due diligence and fact checking aren't just standards for journalists, they should be a standards for everyone who chooses to publish in the public arena. And that includes blogs.

UPDATE II: Cassandra at Villainous Company has proactively denounced me. Heh ... same to ya, Cass.

I certainly understand her point about self-policing and perhaps that's not the best word for what I'm attempting to describe, but somehow we need to self-edit (or whatever you want to call it) as much as is reasonable in order to avoid legal and governmental "policing" based in blatant abuses of (and complaints about) a libel shield for bloggers. Common sense and reasonableness should rule. Unfortunately that's not always the case among blogs.
 
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And we also need to point out and criticize those who don’t.

Yikes!

Why is that a good point? In one capacity Malkin is being paid. In the other, she is not. Most people can see a rather critical difference there.

I really think Malkin, et al are blurring a line that really should not be blurred. As much as bloggers just LOVE to bleat about being treated "seriously", we AREN’T JOURNALISTS. We don’t make the news, we don’t (for the most part) go out and do original investigative journalism (yes, a few of us do but the vast majority of us do not). And so for public policy reasons it is perilous to start treating us as a professional or commercial class when what we really are, are amateurs/private citizens with web sites. Why do I want to be held to the higher legal standard of a professional when I am not paid for my efforts?

The burden this would place on the free flow of information on the Internet is just enormous, McQ. I think people are failing to distinquish between a legal and a moral duty, which I completely agree does exist. If the legislature wants to establish a tort of online libel, let them. And if the problem becomes severe enough, they will - this is how societies deal with the problem of competing social interests. But in this case the plaintiff still had a cause of action against the ORIGINAL PUBLISHER of the libel - i.e., the person who wrote the email.

The issue here is probably that he or she wanted to go after the person with the perceived "deep pockets", i.e., the person with the web site, or punish them. But the site owner would not have had the email "but for" the act of publishing the email to the site owner. There are two guilty parties and of the two the far more guilty is the author of the original email, who best knew whether the email was libelous or not.

 
Written By: Cassandra
URL: http://www.villainouscompany.com/vcblog/
Why is that a good point? In one capacity Malkin is being paid. In the other, she is not. Most people can see a rather critical difference there.
And that has what to do with whether something is libelous?

Are you attempting to argue that libel is only attendant if the person who does it is paid?
As much as bloggers just LOVE to bleat about being treated "seriously", we AREN’T JOURNALISTS.
Which again seems irrelevant. Libel is libel. It really doesn’t matter who does it.
Why do I want to be held to the higher legal standard of a professional when I am not paid for my efforts?
But it has nothing to do with your status. It has to do with whether you libeled someone. Again, pay is irrelevant. It is what you say or publish which is relevant, especially if it is determined to be libel.
The burden this would place on the free flow of information on the Internet is just enormous, McQ. I think people are failing to distinquish between a legal and a moral duty, which I completely agree does exist. If the legislature wants to establish a tort of online libel, let them. And if the problem becomes severe enough, they will - this is how societies deal with the problem of competing social interests. But in this case the plaintiff still had a cause of action against the ORIGINAL PUBLISHER of the libel - i.e., the person who wrote the email.
No one is arguing they shouldn’t have recourse against the original publisher of the libel. But why do you believe that newspapers should be held to one standard and bloggers to another?

Or asked another way, why is a newspaper liable if it republishes that email but not a blogger?

If you, as an individual, were to take a letter given to you by someone which defamed a neighbor and you made copies and put it under the door of every house in your neighborhood, could the defamed neighbor hold you responsible for libel?

How is a blog which does essentially the same thing different? And note in the example, no pay or "journalism" is involved.
The issue here is probably that he or she wanted to go after the person with the perceived "deep pockets", i.e., the person with the web site, or punish them. But the site owner would not have had the email "but for" the act of publishing the email to the site owner. There are two guilty parties and of the two the far more guilty is the author of the original email, who best knew whether the email was libelous or not.
Let’s differentiate between a ’site owner’ (like AOL or an open forum provider) and a blogger. A ’site owner’ who provides an open forum for those who pay to use it is, in my opinion, exempt as the court found.

However, a blogger, who owns their site and controls its content (with the exception of comments which I believe should be exempt as well) has to make a decision to post a potentially defamatory email, for instance, and should be held responsible for the decision if the email they choose to post indeed proves to be defamatory.
 
Written By: McQ
URL: http://www.qando.net/blog
Because newspapers have more resources than private citizens. Usually when you look at what expectation the law has of various parties, that expectation varies according to who they are. We expect more of an adult than a child and more of a professional than an amateur. That is only reasonable.

We expect a professional driver to be a better driver than a 16 year old who just got his license yesterday.

We expect a professional journalist working for the New York Times to have more resources at his command when checking out a news item than a small town reporter or your daughter who is posting on MySpace. This is only common sense. Furthermore, quite frankly we expect that reporter to do mostly investigative reporting and we expect his reports to be received with FAR more credibility than your teenaged daughter’s blog posts!

Or at least I would hope so, though the Times’ recent track record leaves that open to some question.

why is a newspaper liable if it republishes that email but not a blogger?


Two reasons:

1. Resources.
2. Perceived credibility.

If you, as an individual, were to take a letter given to you by someone which defamed a neighbor and you made copies and put it under the door of every house in your neighborhood, could the defamed neighbor hold you responsible for libel?

If the neighbor was not a public figure, and they could prove I knew it was false or did it with reckless disregard for the truth or malice, possibly. But if I did it in California and I published the flyer online, no because the statute exempts online libel, apparently. One huge difference here is the ease of refuting online transmission of libel.

Hey - I don’t like it either but the asymetricality nature of libel is becoming a thing of the past when you’re talking about the Internet.

...should be held responsible for the decision if the email they choose to post indeed proves to be defamatory

Hmmm.... but do you always know? Anyone who doesn’t like a nasty email can say "That’s libel!" What if the facts are in dispute and there is no way to investigate?

What if there is a compelling public policy reason to publish? Perhaps with a disclaimer? I can think of many examples. Not sure I’d do it, but frankly the cited case is one. You might want to warn patients away from a doctor who was trying to cover up repeated malpractice or gross negligence - with the change in law you want, all it would take is the threat of a nasty suit to cover it up, and the blogger has no way to check the facts out.

All interesting questions.
 
Written By: Cassandra
URL: http://www.villainouscompany.com/vcblog/
Believe me, I’m with you 100% on self-policing (as long as it doesn’t make me grow hair on the palms of my hands or anything horrid like that).

I just don’t think the court should overrule the legislature and I don’t necessarily see the statute as unreasonable. I updated my post with some less snarky observations, fwiw.
 
Written By: Cassandra
URL: http://www.villainouscompany.com/vcblog/
Because newspapers have more resources than private citizens. Usually when you look at what expectation the law has of various parties, that expectation varies according to who they are. We expect more of an adult than a child and more of a professional than an amateur. That is only reasonable.

We expect a professional driver to be a better driver than a 16 year old who just got his license yesterday.
So are you saying the family of the person who was killed by the 16 year old has no legal recourse while the family who’s member was killed by a "professional driver" do?

That makes no sense to me. Dead is dead. Libel is libel. If you’re going to drive on the roadways you are just as responsible for your conduct at 16 as you are if you’re a "professional". The consequences are no different. And that should be the concern of the law. Not resources or experience.

So when you say:
Two reasons:

1. Resources.
2. Perceived credibility.
Neither reason resonates as a valid reason to excuse libel. If it is still legally libel if I speak out in public in a defamatory manner about someone (and that gives them legal recourse to satisfaction at my expense), then I can’t imagine why writing about them in public is any different regardless of what my resources or credibility might be.
Hmmm.... but do you always know? Anyone who doesn’t like a nasty email can say "That’s libel!" What if the facts are in dispute and there is no way to investigate?
So it means you exercise caution (you know, like use the words ’alleged’ or ’purported’, etc.). And you make sure you know what constitutes libel and how to avoid it. I don’t think its really that difficult with a good-faith effort, but I really balk at bloggers being given carte blanc with the excuse they don’t have the resources when all it takes is a little common sense.
What if there is a compelling public policy reason to publish?
"There is no way, at present to verify this, but allegedly ..."

"If true ..."

"Again this is, at this point, little more than rumor, but it would mean ..."

That’s all quite different than saying, "I’ve heard that so-and-so did this to what’s-his-name on such-and-such a date ..."

I’m not saying don’t publish, I’m saying make a good-faith effort to determine the facts of the case before you do and if you are still moved to publish even if you can’t determine the facts, do it in such a way that it isn’t considered libelous.
Believe me, I’m with you 100% on self-policing (as long as it doesn’t make me grow hair on the palms of my hands or anything horrid like that).
Heh ... I ain’t touchin’ that. But suffice it to say the key part to "policing" is "self". I’m certainly not advocating we form some vigilante commission but instead police our own blogs.
I just don’t think the court should overrule the legislature and I don’t necessarily see the statute as unreasonable. I updated my post with some less snarky observations, fwiw.
Snarky? The "blog princess"? I just can’t imagine that. ;)
 
Written By: McQ
URL: http://www.qando.net/blog
So are you saying the family of the person who was killed by the 16 year old has no legal recourse while the family who’s member was killed by a "professional driver" do?

Arrrggghhhh!!!! Men!

You are supposed to roll over and play dead when I shoot you :)

Of course not. What I am saying is that, given the same fact pattern, if a jury is trying to decide whether a driver was negligent, they might well decide the case differently (i.e., be more lenient) to the 16 year old driver based on their perception of his duty of care in the same situation. Why? Simple: he is not a professional driver and therefore they will not expect the same level of proficiency from him as they would from the professional driver. Yes, the victim is still as dead. But the jury has to decide whether the driver was UNREASONABLY negligent, and the whole question of "reasonableness" is situational - it depends on your experience.

It takes less effort for a professional driver in this instance to avoid the accident, THEREFORE we blame him more if he fails to do so. Likewise, because professional journalists have more resources at their disposal to check on stories, AND are compensated for doing their jobs, it is both easier for them to verify stories and they have a built-in incentive for doing so. THEREFORE, the law will hold them to a higher standard than amateur bloggers and will blame them more for either intentionally or negligently damaging the reputations of third parties.

If I gave the impression I was excusing intentional libel, let me correct that.

I think it’s sleazy as all get out. I have taken other bloggers to task several times just for being a$$hats or for general incivility. But I don’t like the idea of encouraging frivolous lawsuits.

Oh, and by the way... I double-denounce you. And now I need to go and make Cranberry-pear Chutney or some god-awful concoction for tomorrow. Pray for me.

 
Written By: Cassandra
URL: http://www.villainouscompany.com/vcblog/
What I am saying is that, given the same fact pattern, if a jury is trying to decide whether a driver was negligent, they might well decide the case differently (i.e., be more lenient) to the 16 year old driver based on their perception of his duty of care in the same situation. Why? Simple: he is not a professional driver and therefore they will not expect the same level of proficiency from him as they would from the professional driver. Yes, the victim is still as dead. But the jury has to decide whether the driver was UNREASONABLY negligent, and the whole question of "reasonableness" is situational - it depends on your experience.
Well if that’s your argument the I’ll refer you to my post:
I’m not looking for trouble here, but I guess it boils down to me not understanding why a blogger who knowingly posts libelous info shouldn’t be held accountable.
Note the key phrase. Is that "UNREASONABLY" negligent enough for you?
If I gave the impression I was excusing intentional libel, let me correct that.
Heh ... fair enough. Now that we’ve settled that we still have the experience bit to talk about.

I’ve always been told ignorance of the law is no excuse. It would seem to me experienced or inexperienced it still holds true. Because libel is still libel and it is your job - blogger or journalist - to know what constitutes libel (just as it’s your job to know the laws concerning driving, financial transactions etc).
 
Written By: McQ
URL: http://www.qando.net/blog
"we don’t (for the most part) go out and do original investigative journalism (yes, a few of us do but the vast majority of us do not"

I dare say that most "offocial" journalists don’t either.



"Two reasons:

1. Resources.
2. Perceived credibility."

How about
3. Usual and customary practice.


"while the family who’s member was killed by a "professional driver" do?"

Possibly. I can see where some liability might be assigned if it is determined that a proficient and experienced driver could have avoided an accident where an inexperienced driver may not have been able to.


" Dead is dead."

But causing death is not necessarily murder, nor even illegal.



 
Written By: timactual
URL: http://
"I’ve always been told ignorance of the law is no excuse."

Were I a defense attorney I think I would get a forklift and present to the jury a ton or so of the laws they are expected to know. If I were a tax attorney it would be even easier.
 
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Facts specific to the libel do not appear to be germaine to the matter. Polevoy has been called and libelled many things. If unture, surely he would contest? He has not because these accusations ranging from molestattion to stalking are true.
 
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