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Don Burleson Blog 









The Internet Journalist
Web privacy, false light and defamation laws

 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.

Internet law and personal liability

The DMCA was designed to protect web hosting services and ISP's and not web authors.  In this article, a retired judge Fadeley notes that offering DMCA protection to bloggers and web authors is a serious loophole in the DMCA, and that new legislation is required to make bloggers and "cyber bullies" responsible for damage to people.  See Time for DMCA reform for details.

The laws also vary by State and Nation, and South Carolina has strict laws against invasion of privacy.  In the publication "THE RIGHT TO PRIVACY vs. THE FIRST AMENDMENT" (1978), author  Alice Marie Beard notes that in many States it appears to be illegal to intrude upon someone's seclusion or solitude, to publicly disclose embarrassing private facts about someone; or to generate publicity that places the someone in a "false light" in the public eye: (see Renwick, 310 N.C. at 322, 312 S.E.2d at 411)

Four areas of the right to privacy are recognized:

(1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

(2) public disclosure of embarrassing private facts about the plaintiff;

(3) publicity that places the plaintiff in a false light in the public eye, and

(4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Now, a lot has changed since 1978, but much it it moves in the direction of making people responsible for what they publish, even if they are grossly unprepared to be a journalist.  In this great essay title "Here Come the Judges (and Lawyers)", Dan Gillmor notes that old Aunt Sara's catty blog is now subject to U.S. Libel laws:

Online journalists are no less required to follow the law than anyone else. A blogger who commits libel may have to face the consequences.

After the public fiasco from a Yahoo forum member publishing libelous information about his employer, Gillmor notes that companies can now demand to find the real identities of defamatory bloggers:

So far, bloggers may have avoided the legal chopping block, though threats against bloggers abound. Commenters on Internet forums have had more trouble. In particular, some companies have been especially assertive in financial forums, demanding from Internet service providers the identities of people who have made allegedly defamatory postings.

Tortuous Interference in Cyberspace

Many states have laws prohibiting people from publishing statements that unlawfully interfere with a person's right to conduct business.  In the United States, tortuous interference claims are made when someone publishes statements designed to interfere with another normal course of business.

United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988).  

Plaintiffs assert that the trial court erred in dismissing their claim for tortious interference with a contractual relationship. The elements of the tort of interference with contract are:

(1) a valid contract between plaintiff and a third person that confers upon plaintiff a contractual right against a third person;

(2) the defendant knows of the contract;

(3) the defendant intentionally induces the third person not to perform the contract;

(4) the defendant acts without justification; and

(5) the defendant's conduct causes actual pecuniary harm to plaintiff.

For example, the North Carolina Supreme Court has held that tortious interference with prospective economic advantage occurs when a party interferes with the freedom of contract and “not in the legitimate exercise of defendant's own right, but with design to injure the plaintiff . . ." (see Owens v. Pepsi Cola Bottling Co. of Hickory, N.C., Inc., 330 N.C. 666, 680, 412 S.E.2d 636, 644 (1992)).

Tortuous Interference on the Web

To prevail in a tortious interference claim (or "tortuous interference", both are acceptable spellings), you need to show that the publication induces a person not to fulfill a business relationship.  While the First Amendment protects opinions, we must remember that the standard is very different for tortuous interference than it is for libel. 

To prevail in a Tortuous Interference claim you must prove that a person:

- Knows about your business relationship

- Interferes with your relationship

- and that they are unjustified in doing so  

For a simple example of "unjustified", a business competitor would be unjustified in conducting a "smear" campaign against a business competitor, which results in advertisers withdrawing from existing contracts for fear of bad publicity.

On the web, it suggests that statements below, while not libelous per se, may be actionable as tortuous interference, especially if the publisher induces the public to interfere with the business relationship:

  • "I cannot believe that people actually pays Waldo's Widgets money"

  • "I feel sorry for anyone unfortunate enough to use Waldo's Widgets services"

  • "Waldo's Widgets products are shoddy and poorly made"

  • "I wonder if their clients know what serial offenders Waldo's Widgets are?"

  • "Amy Author's article is wrong, it's a fact, not my opinion"

  • "The owner of Waldo's Widgets is a fraud"

Civil Conspiracies and Cyberlaw

The US department of Justice defines a conspiracy such that it appears to clearly apply to internet publishing:

A conspiracy is a combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means.

DOJ also notes that civil conspiracy may apply to a "variety of conduct" that might harm or inhibit the free actions of a third party:

The words "injure," "oppress", "threaten," or "intimidate," as used in the conspiracy statute, are not to be interpreted in any technical sense, but may cover a variety of conduct intended to harm, frighten, or inhibit the free action of other persons.

Anytime that people conspire to defame or interfere with another person or business entity, Civil Conspiracy laws come into play. Click here for a listing of some Federal laws protecting against Civil conspiracies.

Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737, (2002); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866, (2001); Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969).

To prove a civil conspiracy, a plaintiff must show that two or more persons have combined to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive or immoral, but by unlawful, oppressive or immoral means, to the injury of another.

Chambers v. Stern, supra; Dodson v. Allstate Ins. Co., supra.

A civil conspiracy is not actionable in and of itself, but a recovery may be had for damages caused by acts committed pursuant to the conspiracy. Chambers v. Stern, supra; Dodson v. Allstate Ins. Co., supra. A civil conspiracy is an intentional tort which requires a specific intent to accomplish the contemplated wrong.

Tortuous Interference cases are sometimes tied to Civil conspiracy laws because Federal Statutes have strong prohibitions against any groups who conspire to injure the reputation of an individual or business. This is especially true on the web where a single publication has a worldwide reach.

USA Cases on Cyber defamation law

Click here to read the landmark (Zeran v. Diamond Broadcasting) case where the US courts removed liability for third-party providers of message boards and forums:

Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else.

However, Zeran speaks only to an instant case where the forum provider was not actively involved in the defamatory publications.

Anti-SLAPP laws and cyberlibel

SLAPP is for "Strategic Lawsuits Against Public Participation", a legal doctrine that allows freedom of speech on important public issues.

In the Harvard publication SLAPP and Black Hole of Internet we see a reference to (New York Times v. Sullivan) where the Supreme Court restricted the rights of public officials to sure for libel:

Simply put, if a reporter or editor has no reason to doubt a source, there's no liability for libel even if the source says something wildly libelous such as Blumenthal "has a spousal abuse past that has been effectively covered up."

However, the anti-SLAPP laws do not give free rein to internet publishers covering public issues:

The court limited the right of recovery to public officials who could prove actual malice (i.e., that the newspaper knew the statement was false or acted in reckless disregard of the truth).

We see that the Communications Decency Act (CDA) has also been used (unsuccessfully) as a defense against libel, but the courts have ruled that forum owners cannot be absolved if they participate in the defamation:

Sabbato v. Hardy, Case No. 2000CA00136 (Ohio Ct. App., Dec. 18, 2000). The court determined that Hardy was not automatically entitled to immunity under Section 230 of the CDA because the complaint alleged that Hardy had personally participated in creating the defamatory comments.

What about jurisdiction for web-based defamation?

When it comes to hurling hurtful statements (whether they are true or false, in some cases it does not matter), we see that the laws are very different in different lands. 

The shifting Burden of Proof

In Canada, the UK and Australia, libel laws are biased in-favor of the injured party and it is up to the libeler to prove that their statements are true.  This is the exact opposite of USA libel law where the defamed party must prove that the statement is false.

Under the current legal regime, you can be sued for anything you say about another person that damages their reputation.

If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defence --- if the court finds you told the truth but your intent was malicious, you might lose anyway.

Canadian libel law is so draconian that people come from all over the world to file libel suits in Ontario.

International Cyber Libel Laws

Canadian courts have ruled that the Internet is a "Broadcast medium" subject to the same rules of libel as traditional broadcast media such as TV and radio.  This ruling has far-reaching impact for cyber libel.  This Canadian Cyberlibel site notes that people harmed by a libel must file a claim within six-weeks of publication, and those who discover a libelous web page after six weeks has no cause-of-action for a libel claim (see Weiss v. Sawyer) in Canadian courts.

English courts have been coming-down hard on anonymous libelers, as noted in Totalise v. Motley Fool:

"I have no hesitation in finding that the balance weighs heavily in favour of granting the relief sought.

To find otherwise would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the internet."

On appeal, Lord Justice Aldous noted that the defamed party should be completely reimbursed for the costs of finding the identity of the anonymous defamer:

I consider that there is considerable force in Mr Moloney's argument that those who operate websites containing discussion boards do so at their own risk.

If it transpires that those boards are used for defamatory purposes by individuals hiding behind the cloak of anonymity then in justice a claimant seeking to establish the identity of the individuals making such defamatory contents ought to be entitled to their costs.

In Australia, it appears that defamation and libel laws are so strict that they can become criminal offenses:

In South Australia, Victoria and the Northern Territory under common law any libel of sufficient seriousness can lead to criminal proceedings.

In Tasmania, Western Australia and Queensland the legal code provides for a misdemeanour (where there is no knowledge of the falsity of the statement) or a more serious penalty where the publisher knows that the defamation is false. Criminal defamation in the ACT involves malice and knowledge of falsity.

In the USA, several states have proposed bills extending the Digital Millennium Copyright Act (DMCA) is being extended by several States to foil anonymous publishers on the web.

Both bills would flatly ban the possession, sale, or use of technologies that "conceal from a communication service provider ... the existence or place of origin or destination of any communication".

Crossing jurisdictions

The laws vary so widely that you can commit a felony just by viewing web sites that are illegal in your country (e.g. kiddie porn), while the web site owner is perfectly within the laws of their country.

But what about someone in Canada who publishes a blog about a person in South Carolina? Like the answer to most questions, it depends.  Jurisdictions (States, Nations) vary widely, but some suggest this polestar for blogging safety:

You are bound by the rules in the place where the defamed person reside, not where you published the offending statement.

For details on how US State courts assume jurisdiction against residents of other countries, click here:

In other words, a blogger in Norway could be hailed into the jurisdiction of U. S. Courts for false light invasion of privacy, even if the blog was acceptable in Norway.

What about citing anonymous publications?

In Gillmor's comments on Nymox v. Yahoo, we see that the judge noted that anonymous posters do not gain the right to defame others, just because they do not reveal their true identity:

But pre­serving the value of anonymity, and robust speech, is vital. The judge, striking an appropriate balance, said there’s no right to defame and damage others under a cloak of anonymity.

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.



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