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Don Burleson Blog 


 

 

 


 

 

 

 

 

The Internet Journalist
Courts hold web publishers accountable for their acts


Don Burleson

 

Burleson is co-author of Web Stalkers: Protect yourself from Internet Criminals & Psychopaths, $19.95 by Rampant TechPress.  Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.

Like it or not, millions of Americans have unwittingly become amateur journalists, without the benefit of understanding the important laws regarding publishing of information that might hurt someone else. Let's take a closer look and explore these issues:

In the past, many people felt that nobody would undertake the expensive and time-consuming efforts to uncover internet offenders. 

Courts are supporting web-based claims

A close friend of mine was recently forced into taking action against a group of foreigners who were defaming her reputation over the web.  They published horrendous lies about her, hijacked web content, and violated her privacy.  As part of my research for the book “Web Stalkers”, I helped her with the paperwork and I was surprised to find out they way that the law has evolved regarding web publishing, especially forums and blogs:

  • There are limits to the First Amendment – The old adage “free speech doesn’t mean that you can shout “fire” in a crowded theater” applies here.  You cannot just preface a libel with “in my opinion” (i.e. IMHO, John murdered three people).  The most common defense in a false light action is to claim First Amendment freedom of speech, but the courts are quite clear about offering no protection for false speech:

"false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth."

  • Defamation is seriously punished – In Wagner v. Miskin (2003 ND 69), the court accepted local jurisdiction against an out-of-state web site owner.  The defendant as changed with complaint sought damages for libel, slander, and for damages from reproducing her privileged communications (e-mails).  The court judged against the libeler, granting extensive punitive damages to the tune of $3,000,000.00.
     

  • Anonymity is an illusion – With a “John Doe” subpoena you can quickly get the real identity of anonymous publishers, even on Google-based portals such as “Google Groups” and www.blogspot.com. All you need is the date-time stamp and the IP address.  The courts are now very willing to force ISP’s to reveal the identity behind an IP address, even on non-criminal civil complaints.
     

  • You are responsible for your own words – Whenever you enter a message board, chat room or blog, you become a worldwide publisher and are subjected to the same laws as any other international journalist.  You might also be responsible for the words of others.  Under certain circumstances you can be held responsible for re-publishing a defamatory work and inciting defamation:
     

  • Linking to a Libelous article – That’s right; all it takes is non-verified hyperlink.  Recent court cases in the UK and Australia have upheld that those who republish a libel as committing a libel.  It also applies to cases where a blogger links to “juicy gossip” that turns-out to be false. 
     

  • Using comment areas in blogs – Some court-cases have held that you cannot be held responsible for comments placed in you blog comment area.  However, some jurisdictions agree that the blog owner could be held responsible if they “incited” the defamatory remarks or if they selectively edit or delete the comments.  Here is a libel accusation against a blogger who published that an author was “a fraud”, because he possessed a less prestigious doctorate degree.
     

  • Jurisdiction is becoming less important – Libel and defamation laws vary widely by State and Nation.  Because participation in chat rooms and blogs makes you an international publisher, you are expected to understand the laws in every jurisdiction where your document will be distributed, in the web case, over 190 Countries.  To prevent “forum shopping” most jurisdictions seem favorable to local plaintiffs, allowing them to hail offenders into their local court from anywhere around the globe.
     

  • Employers can be implicated – If someone is using your company resources (company web access) or harassing someone while “on the clock”, then your company could be implicated.  For these reasons, many company’s prohibit anonymous web communication at he workplace, and whenever they are “at work” even if the are in a hotel room or working at-home.  Bottom line, you might be held partially responsible for the actions of your employees when they are using your company resources in commission of an unlawful act.
     

  • Identity Theft is very serious offense – Many identity theft cases are prosecuted as a felony offense.  If you discover that someone is impersonating you in a forum or blog, you should consult an attorney immediately to get injunctions to stop further damage.  Many resources for victims of identity theft are available on their website at www.idtheftcenter.org.

Now, you might be tempted to say "baloney", that nobody is ever going to take me to-task for insulting someone anonymously on a message board. 

Are anonymous blog comments always opinion?

However, it's important to note that a Delaware court has ruled that, when defaming a public figure, opinion cannot be defamatory and that a prima facie case for defamation must be proven before the courts will disclose the identify of an anonymous blogger (emphasis added).

"In this case, this Court is called upon to adopt a standard for trial courts to apply when faced with a public figure plaintiff’s discovery request that seeks to unmask the identity of an anonymous defendant who has posted allegedly defamatory material on the internet."

If upheld in other jurisdictions, these types of anonymous blog publications would be considered "opinions" and be considered protected free speech.  In the Delaware case we see this anonymous comment about an elected public official, which as held as protected:

"Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration."

This could start a free-for-all of defamation against public figures as shown by these hypothetical examples:

  • "I had homosexual sex with John Q Senator last week and I received HIV and Herpes."
     

  • "I saw John Q.  Mayor steal $50,000 from the church collection box last week."

The Delaware case clearly notes that this "John Doe warrant" was against a public figure, but remains silent about the rights of private individuals:

"It also is clear that the First Amendment does not protect defamatory speech.  [I]t is well understood that the right of free speech is not absolute at all times and under all circumstances.”

 


Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.

Also see the book on protection from Cyberstalkers


 

 

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