--Pappy O'Daniel, O Brother Where Art Thou?
One morning, a nastygram with impressive digital letterhead appears in your email. "You have been publishing defamatory statements regarding our client, Joseph T. Schmoe, on your website. Cease and desist or face legal action pursuant to blah blah blah...." You rub your eyes, down another espresso shot, readjust your pajamas. You've never blogged about Joe Schmoe. At least, not that you can remember. You search through your blog's archives, and presto: there it is. "Joe Schmoe defrauded millions from Save the Cephalopods while president of the vaunted environmental organization, then blew it all on hookers and drugs in a Vegas orgy." It's in the comments. You didn't write it. You're not responsible... are you?
...
Hugh Hewitt thinks you are, and sees this as a compelling reason to avoid allowing comments,(1) but is his caution justified? Should bloggers stifle interactivity out of the fear of litigation? My survey of relevant literature leads me to say "no," with caveats.(2) First, some background.
The American Precedent
Before passage of The Communications Decency Act of 1996 (hereinafter known as S.230), and long before the rise of the blogs, two cases set a paradoxical precedent for Internet defamation. Internet service providers (ISPs) that had no stated content restrictions were immune from litigation under Cubby, Inc. v. Compuserve, Inc., (3) while "family-friendly" ISPs that attempted to limit objectionable content were liable for defamation under Stratton Oakmont, Inc. v. Prodigy Serv. Co. (4) Only do-gooders faced the possibility of a lawsuit.
Realizing that this state of affairs would discourage ISPs from attempting to monitor their users' output,(5) Congress passed S.230, which, among other things, protected third parties from defamation lawsuits. The text:
(1) Treatment of publisher or speakerRulings after the passage of S.230, notably Zeran v. American Online, Inc. and Blumenthal v. Drudge, consistently upheld a broad reading of S.230. In the latter case, the court determined that AOL was exempt because Drudge was not its employee, and alone was the agent of action in distributing--and later retracting--the objectionable story. (7)
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.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) [footnote: So in original. Probably should be “subparagraph (A).”] (6)
It would seem, then, that bloggers are safe from liability for comments made by third parties--at least, in the United States. But the Internet is a global phenomenon, and international courts may take a different view. To Australia we go.
You Call That Jurisdiction?
Dow Jones v. Gutnick rattled the online publishing industry. In a watershed 4-3 decision, the Victorian Supreme Court ruled that an American company could face litigation in any court "... from Afghanistan to Zimbabwe" for material published on the web, because the act of defamation occurred where the material was downloaded.
In April of 2003, William Alpert, the author of the offending article, "... complained to the United Nations’ High Commissioner for Human Rights, alleging that Australia had violated his right to free speech under Article 19 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980."
Gutnick eventually settled for $443,500.
The UN's silence on the matter likely comes from the settlement.
Should American bloggers fear the fallout of the Gutnick decision? Not really. First, Dow Jones is a large company with plenty of cash, not a small-time third-tier blog with a loyal readership of twenty-seven. Second, American courts have persistently refused to uphold international defamation judgments. Third, Gutnick sued the "party of the first part," and the case did not set a precedent for third-party defamation.
Reasonable Steps to Take
Given the facts, then, bloggers should consider several courses of action.
1. Do not shut down commenting in a panic. "... [L]ibel remains a notoriously difficult cause of action to prosecute successfully... because of a panoply of privileges and affirmative defenses that do not lend themselves to refutation." (14)
2. Establish a clear comments policy, and post it on every page.
3. Set up comment notification, so you are emailed every time someone comments (this may or may not be practical, depending on the size of your readership).
4. Refuse anonymous comments.
5. If you feel justified in deleting a comment that seems defamatory, publically explain your action. "Retracting a defamatory comment will not absolve one of liability, but it will likely reduce damages." (15)
(1) He also cites concerns of plagiarism, which I leave aside for another time.
(2)The first and most important caveat: I am no lawyer, nor was meant to be. This isn't free legal advice. If you're seriously concerned about defamation issues, contact a real attorney with a J.D. and a fancy briefcase.
(3) Zion, 502
(4) Ibid, 503
(5) Ibid, 504
(6) Title 47 S.230 USC
(7) Zion, 506-7. "Certainly, the court in Blumenthal did not presume that the entity known as AOL could actually develop or create defamation without the assistance of an agent, namely one of its employees."
(14) Ciarlone, 54
(15) Ciarlone, 57
* Zion, 507
** Ciarlone, 53
**** Ciarlone, 56
Alpert appeal and the UN
http://practice.findlaw.com/cyberlaw-0603.html
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