A court case in Indiana has raises an intriguing First Amendment question as it relates to anonymous defamation. In this case, a potentially libelous comment was left by an anonymous user on the Star website. The comment suggested that Jeffrey Miller, the former head of Junior Achievement of Central Indiana, and several of his colleagues had misappropriated funds into their own bank accounts. This comment was posted by a user with the handle “DownWithTheColts.” Now Miller et al. want to sue, but they have no idea who “DownWithTheColts” is.
Although the Star may be able to find identifying information about this individual via his or her IP address (Internet Protocol Address), the publication refused to provide it, citing anonymous speech rights under the First Amendment.
This case calls into question the ability of laws originally created for offline situations to govern or apply to online situations. For example, the judges made an analogy between a website’s comment forum and a physical bulletin board that may exist in a public location. Whether this is a sound analogy, and whether the same laws can govern both situations, is one of the anonymous defamation issues at hand.
Since this case occurred in Indiana, the court must adhere to the state’s “Shield Law.” The Indiana shield law protects a journalistic publication or entity from revealing the identity of its sources. It applies narrowly to professional journalists and traditional media. If the Shield Law applies in this case, it would mean the court cannot legally require Star to provide information regarding the identity of the anonymous commentator. However, whether this law applies at all is one of the matters under review. Is Star’s website an entity covered by the Shield Law, or does the law only apply to print media? And if Shield does apply, is an anonymous comment considered a source?
To that extent, the fact is that Star did not publish information that was based on the information provided by anonymous commentator, DownWithTheColts. Therefore, the individual was not a source to any journalistic ends. Logically, it follows that the Indiana Shield Law does not apply in this case.
Additionally, Star has the ability to moderate comments that are published on the website, which may mean a comment could be considered as an extension to the original article.
The other primary issue in this case is whether or not the comment posted by DownWithTheColts was defamatory. Since constitutional free speech rights don’t apply in cases of defamation, the judges have to agree that the statement was, in fact, defamatory. It also follows that the statement must be proven to be false, since a factual statement is not defamatory.
Upon further review, the judges concluded that the anonymous comment was defamatory. However, Miller also needs to prove it was false. Without this proof, it’s not possible to move forward with a defamation claim. Further, there needs to be some evidence of malice, in regards to the intent of the individual who posted the comment. Since the individual’s identity is not known, it’s not possible to prove whether the intent was malicious. Since proving malice is not possible in this case, the judges modified the requirements so that this detail would not be required in order for Miller to satisfy the requirements and obtain the commentator’s identity.
This case has been sent back to the trial court in order to determine whether all of the necessary requiremenents have been met under the stipulations of the state and federal constitutions. If so, Miller will be able to proceed in finding DownWithTheColts’ identity and Star may have to furnish the IP address and other details of this individual.
Believe it or not, The United States Constitution doesn’t mention “privacy” once; but that doesn’t mean invasion of privacy isn’t protected. After all, the fourth amendment guards against unreasonable search and seizures, and the ninth ensures that rights not explicitly mentioned in the Constitution are also protected. As such, many states have False Light invasion of privacy laws on the books.
As a private citizen, you have a right to protect yourself from unflattering and unwanted publicity. The legal concept is known as “False Light.” And as we collectively continue to travel down this Internet-obsessed road we’re on, expect to see more false light lawsuits hitting the courts.
What Is False Light?
False light is a privacy tort often confused with defamation. In fact, some jurisdictions think the two are so similar they’re lumped together in the eyes of the law. The premise behind false light is that private citizens have the right to “protect themselves from publicity, which puts them in a ‘false light.’”
To satisfy false light claims in the eyes of the court, most state statutes demand that:
- There exists a Publication of false light material by defendant, either online or off, against plaintiff;
- Actual Malice was involved; and
- The published material would be considered “highly offensive or embarrassing” to a “reasonable person.”
The Difference Between False Light and Defamation
As stated previously, false light and defamation are very similar. The main difference is that false light statues address damage to one’s dignity, whereas defamation is more about one’s reputation. In other words, false light deals with the impression created; defamation, on the other hand, deals with truth and falsity.
For a person to be lose a false light lawsuit, the plaintiff must prove the defendant acted in “reckless disregard,” however, a false light plaintiff does not have to show evidence of actual harm, unlike in defamation cases.
False Light Jurisdiction
False light is primarily a state-based law.
Interestingly enough, though, due to the Ninth and Fourth Amendments of the U.S. Constitution, some states deem false light protections as a constitutionally protected right and therefore outside of limitation statutes.
Common False Light Defenses
What are some common defenses for false light charges? Most people argue free speech rights and/or newsworthiness. Most false light laws exempt “newsworthy” information from persecution. As such, many a false light litigation centers around what is and is not considered newsworthy – a definition that is only sure to become murkier as citizen journalism and social networking continue to grow.
Notable False Light Cases
Jose Solano, Jr. brought a false light privacy claim again Playgirl magazine after the publication placed his picture on the cover, surrounded by headlines that seemed to suggest that Solano would appear naked in the edition. At first, he won his claim, but the decision was reversed as the appeals court ruled that Solano was a temporary public figure and that the magazine was newsworthy.
While Larry Flynt may have famously won his defamation trial against Rev. Jerry Falwell, he wasn’t as lucky with Jeanie Barton. Barton had an aquatic act that featured a swimming pig and Flynt’s magazine, Chic, published a photo of the act along side some copy only the mind of Larry Flynt could come up with. Sine the photo was a true representation of Barton’s pig act, defamation charges could not be brought, but she was awarded a false light ruling since the “essence” of the piece made the act seem sexually deviant.
In Zeron v. Diamond Broadcasting, a Seattle-based film maker sued an Oklahoma radio station after receiving threatening calls after the hosts of a morning radio program erroneously broadcast Zeron’s phone number and urged listeners to call it and give Zeron a piece of their mind.
You see, it was a few days after the Oklahoma City bombings back in 1995; someone had created an anonymous AOL account using the screen name ZZ03 and used it to promote offensive products about the horrific incident; the person who created the account used Zeron’s phone number. Zeron asked AOL to remove the material and they refused. To make a long story short, once Zeron was able to reach the station and explain the mix-up, they made an on-air correction and announcement, but not before Zeron was inundated with nasty phone calls.
Zeron did not end up winning the false light case, as he failed to prove that the station had acted with a “high degree of awareness to the claims falsity.”
Contact A False Light Lawyer
Do you feel someone has maliciously used your name or likeness in a “highly embarrassing” manner – either online or off? If so and you’d like to consult with a lawyer well-versed in false light litigation, contact Aaron Kelly.
Shakespeare said it best, “Hell hath no fury like a woman scorned.” And no man knows the truth of those words better than former Norwalk, Connecticut prosecutor Matthew C. Couloute Jr.
When several of the young attorney’s former lovers flamed him on the website LiarsCheatersRUs.com, their blast of virtual vitriol became the top search result on Google and landed him several headlines in the New York Post.
Prior to his online infamy Mattew C. Couloute Jr. enjoyed a legal career that would inspire envy in most. He was the youngest attorney to serve as a prosecutor for the state of Connecticut; he worked for the National Football League; AND he served as a consultant for MSNBC and Court TV. But sadly his ex-girlfriend’s revenge posts are what brought him the most fame — and now an online defamation lawsuit.
Basis for Online Defamation Lawsuit Claims
Through a quick glance at Matthew C. Couloute Jr.’s LiarsCheatersRUs.com profile, one reads from an anonymous poster that Couloute has allegedly “lied and cheated his entire way through his 40 years of life.” The comments section of the page, which boasts ninety-one entries, includes posts that caution readers to “be forewarned,” as Couloute is “scum”, and that upon meeting him one should “run far away.”
In an interview with the New York Post Matthew C. Couloute Jr. attempts to shed light on his Internet reputation problem and girl troubles. He describes two of his dalliances with, former roller-derby star “Malibu” Stacey Blitsch and Amanda Ryncarz, as “youthful indiscretions.” And then further explains his past relationship with Blitsch by saying “Everyone has that person they dated in their life where you say, ‘Oh, that’s a mistake.’ I have a child with my mistake.”
Although Couloute’s clarifications won’t win him chivalry points, he cites the online remarks as the source of his social scorn and asserts that they have injured his reputation. “The posts came up when I was purchasing a house with my wife. Clients ask me about what’s going on… Even my mom was upset with me.” But Matthew C. Couloute Jr. did not take is digital disparagement lying down.
Couloute’s Online Defamation Lawsuit
Couloute filed a lawsuit against two of his exes whom he presumed to be the generators of the unflattering posts. In his suit, Couloute claims that Rycarz and Blitsch, intended to do grave “damage to his prospective business relationships” through a series of “malicious” reports posted on an online slam-site.
But does he have a case?
Online defamation poses an interesting legal challenge. On the one hand, the advice shared on LiarsCheatersRUs.com can be described as free speech, which is protected by the First Amendment. But posting mean messages about an ex-love online is not the same as dishing about him or her over drinks. Word of mouth travels at the speed of speech, but an online post can disseminate gossip at the speed of light, attracting millions of hits in a matter of minutes.
So if you want to play it safe, it may be better to keep your thoughts to yourself and leave the cyber-bashing to those with excellent legal counsel.
These days, Twitter threats are as commonplace as the Internet itself! And it’s an odd phenomenon too, since, unlike in most blog comment sections, many people use their real identities on the 140-character social networking platform.
Perhaps Twitter’s frantic pace is to blame. After all, people do tend to tweet first and think later. And that’s all fine and well, but as an Internet lawyer, let me remind you that threatening people on Twitter can land you in some legal trouble with the FBI – and who needs them banging down their door?
Twitter Threats: Legal or Illegal?
Here’s the deal: any credible threat made by one person to another is illegal. And all it takes to trigger an FBI investigation is the fear of the person being threatened. For example, let’s say you’re having a back-and-forth Twitter war with a friend, it gets heated, and you tweet, “I’m going to kill you!” If your friend knows that you’re simply riled up, they’ll probably disregard it and keep on twitter-sparing without a second thought. However, if they really wanted to teach you a lesson, they could contact the authorities, claim genuine fear, and that’s all the FBI needs to hear to start looking into the situation.
Yep, it’s that simple.
Celebrities and Twitter Threats
Last month, two notable celebrity twitter threats hit the news. The first: Kyle Williams, punt returner for the San Francisco 49ers; the second: Taylor Armstrong of Real Housewives fame. Williams’ twitter threats were a result of his two fumbles that arguably cost his team a chance at the big ring; an upcoming book signing in New Jersey prompted the threat against Armstrong (a controversial figure in reality television, I’ve learned).
When the tweets threatening Williams hit the Net, various outlets called for an investigation into the people who let the athlete have it online; Armstrong, at the urging of her online followers and friends, contacted the police immediately after getting a couple of direct tweets indicating that she and her daughter would be kidnapped and harmed if she went through with a book signing in New Jersey.
As of the time of this writing, little has been reported about the Williams’ threateners; but authorities did report that Armstrong’s Twitter threats were the musings of a “disturbed” teenager – who will now, most likely, end up on some watch list.
Government Officials and Terrorist Twitter Threats
If you think the authorities takes threats against private citizens and celebrities seriously, try threatening the President or any other public official – the FBI will be on your doorstep quicker than a thirteen year old girl at a Justin Bieber concert.
Codified by Title 18, Section 871 of the United States Code, threatening the life of the President is a felony. And the statue is often applied to any elected member of the government.
And learn from the plight of of Paul Chambers; just your average guy, who was arrested, questioned, fined $1,500 and lost his job, all because he tweeted out an angry missive after finding out his plane was delayed.
What To Do If You’ve Been Threatened on Twitter
If you’ve been threatened on Twitter, don’t engage in an online battle with your opponent. The less contact you have with them, the better. Instead, make a hard-copy of the threat. Then, be sure to block that person on your Twitter account. Report the incident to Twitter and provide the evidence.
If you’re genuinely scared, contact the authorities. If possible, your local FBI office is the best place, but your area police will point you in the right direction.
So, what is the lesson in all this? Think before you tweet – because if you don’t, and get a little too feisty with your online language, you may just answer the door one day to find FBI agents at your door. Authorities take Twitter threats very seriously; do yourself a favor and pull back before you go too far.
Aaron Kelly is an Internet lawyer who has litigated many Twitter-related cases. If you need a Twitter lawyer, give the Kelly Law Firm a call, Skype or shoot an email over – we’re here to help with all your online legal issue needs. (And yes, we’ve also helped those who have been accused of making online threats using various online legal and free speech statutes.)
On January 18, 2012, thousands of folks settled into their desks for the day, only to find out that many popular websites weren’t working. Even Google had a special message on their homepage. And it all had to do with the Stop Online Piracy Act, a.k.a., SOPA.
The Internet didn’t break that day. It was anti-SOPA day — and many high-profile websites “went dark” for 24 hours to protest against the far-reaching online intellectual property bill that was swiftly making its way through the government.
Like most political issues, there were two sides to the SOPA story — those that fiercely defended the measures, and those who fiercely opposed them. But unlike many political issues, SOPA was not a fight being fought along party lines. Instead, it broke down to Internet businesses, Constitutional watchdogs, the public, and a group of elected officials, against the Motion Picture Association of America, a few other elected officials and a smattering of special interest groups. The first group felt that SOPA threatened Free Speech, and, if passed, would have ushered in an era of online censorship, while the second group felt the bill was necessary to protect American jobs and intellectual property.
Eventually, lawmakers pulled the proposal and that was the end of SOPA. That said, officials are still hard at working trying to craft an online intellectual property law.
The SOPA, Rotten Tomatoes Analysis
SOPA views from opinion makers around the Net. A tomato represents an anti-SOPA standpoint, and the splats…well…you know what the Splats mean.
Back in 2009, an Internet defamation fracas began in Illinois. A truly 21st century legal standoff, the cyber libel lawsuit of Stone v. Hipcheck16 involved a local election, one politically-minded parent and the arguably bawdy smack-talk of at least one teen-aged blogger.
The case was watched by many for its Internet privacy implications. And sure enough, the decision of the Illinois appeal’s court has further cemented the state’s legal standing when it comes to online anonymous speech.
How The Internet Defamation Lawsuit Began: Internet Smack Talk
It was 2009, and thanks to the Buffalo Grove Village local elections, things were heating up on the Daily Herald’s message board. Thus was the political climate when two posters, “Uncle W” and “Hipcheck16,” became embroiled in an online debate.
After some online back-and-forth, Hipcheck16 correctly guessed that Uncle W was Jed, son of Buffalo Grove Village candidate, Lisa Stone. After admitting his identity, Uncle W/Jed challenged Hipcheck16 to a face-to-face political debate, to which Hipcheck16 answered:
“Thanks for the invitation to visit you…but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the Internet over to your house – have you done it before, or do they usually invite you to the house?”
Hardy, har, har. A not so clever, albeit typical, Internet message board response – right? Well, Jed’s mom wasn’t able to shake off what she interpreted as an assertion by Hipcheck16 that her son “solicited men for sex on the Internet” and decided to file an Internet defamation lawsuit on her Jed’s behalf.
The Internet Defamation Lawsuit Trial Court Ruling
In an effort to unmask Hipcheck16, Lisa Stone filed for a pre-suit subpoena which asked that Comcast, Hipcheck16’s Internet service provider, reveal Hipcheck16’s true identity. But someone at Comcast was aware of proper protocol, and instead of just handing over the information to the Stones, they alerted Hipcheck16 of the information request along with an explanation of every citizen’s right to fight these types of subpoenas. Hipcheck16 opted to fight the request on First Amendment grounds.
During the first trial court go-round, Cook County Circuit Court judge, Jeffrey Lawrence, ordered that Hipcheck16’s identity be turned over to Stone for purposes of pursuing an Internet defamation lawsuit. That being said, while the judge ostensibly ruled in Stone’s favor, he also stayed the order, thus allowing the appellate court time to consider the important Free Speech issue. In addition, the trial court also ordered Stone to identify, in particularity, Hipcheck16’s defamatory statements.
Appeals Court Ruling
When the case hit the appellate court bench, they first ordered Stone to outline why, exactly, she needed to uncover Hipcheck16’s identity; moreover, the court asked that she provide a cogent argument as to the validity of her legal Internet defamation claim — both requests qualify as fairly normal procedural fair.
To paraphrase, over the course of the appeal’s court proceedings, Stone’s side revealed that the exact claim of defamation is based on the allegation that Hipcheck16 insinuated Jed solicited sex from men on the Internet. Stephen Tyma, Stone’s lawyer, argued that First Amendment rights were important, but such protection should not be given in instances where “sexual insinuations about children” were involved.
For their part, the court put forth a four-part standard for determining whether or not the name of an anonymous individual should be revealed for purposes of proceeding with an Internet defamation lawsuit. These standards being:
(1) Verification; Must be verified (signed by party);
(2) Detail facts that support a defamation cause for action;
(3) Plaintiff can only seek identifying information relevant to the matter at hand; and
(4) (a)Unnamed person must be the liable entity that will be responsible for damages if found guilty
(b)Party requesting identity must prove that they would survive a motion for summary judgment – not just a motion to dismiss.
The Final Verdict: Who Won This Internet Defamation Lawsuit
In the end, Stone rested her son’s case and Hipcheck16 emerged victorious in this Internet defamation lawsuit. What factors led to Hipcheck16’s win?
First and foremost, Hipcheck16 never flat-out said, “Jed solicits men for sex on the Internet.” Instead, s/he asked a question, “…have you done it before, or do they usually invite you to the house?” Intrinsic in the legal definition of defamation is the premise of a “false statement” – the operative word being statement. So Stone’s assertion that Hipcheck16’s interrogative was defamatory fell short on the defamation definition front.
Secondly, defamation law incorporates context. Essentially, when deciding on defamation lawsuits, judges will consider whether or not a reasonable person would actually believe the statement(s) in question. (This idea is a central aspect of the now infamous Hustler Magazine v. Falwell defamation lawsuit.) Upon reviewing the facts of this Internet defamation case, officials decided that the “tenor” of the conversation would lead most people to assume that the two parties involved only knew each other from the Internet and therefore had no real knowledge of each other’s’ lifestyle – another factor hurting the defamation claim.
Thirdly, U.S. legal precedent asserts that if an allegedly defamatory statement can be innocently construed, then it should be. In this case, Hipcheck16 could have argued that when making the statement, s/he was genuinely talking about inviting men over to the house to discuss politics, not sex.
At the end of the day, Stone et al did not have a strong Internet defamation case to begin with; but nonetheless, the lawsuit helped in cementing Illinois legal precedent with regards to anonymous Internet speech standards.
This one comes to you from the “WTH Files” and Internet censorship in Thailand is the topic at hand…
If you’ve ever seen “Broke Down Palace” or are on team-Schapelle-Corby, then you know how easy it can be for unsuspecting westerners to find themselves in an unfamiliar (and often unforgiving) Thai prison. Traditionally, drugs are to blame when the unlucky land behind Bangkok bars; but this time around, a U.S.-based blogger, Joe Gordon, awakened the ire of the Thai government and is now doing hard time in Thailand.
Internet Censorship in Thailand: Joe Gordon, Defendant
Fifty-four years ago, Joe Gordon (Thai name: Lerpong Wichaicomma) was born in northeastern Thailand. But for about the past 30 years, Joe has been a legal resident of the United States.
This past May, when back in Thailand visiting his place of birth, Joe was arrested by Thai officials. Unlike many western adventurers who, when traveling, find themselves on the wrong side of Thai law, Mr. Gordon’s detainment didn’t deal with drugs or prostitution; instead he was essentially booked for defaming the Thai King on the Internet.
And believe you me, in Thailand, online lese-majeste offenses are taken seriously – so seriously that offenders can be locked up for five plus years!
Internet Censorship in Thailand: King Rama IX, Et Al., Offended Parties
What’s all this lese-majeste stuff about, you ask?
In 2008, lese-majeste (public criticism of a ruling monarchy) regulations were enthusiastically embraced by the Thai government, which invigorated the island nation’s Internet censorship efforts.
Currently, the Royal Thai Police, Communications Authority of Thailand, and the Ministry of Information and Communication Technology (MICT) all monitor online activity concerning pornography, Thai royals, and government officials. And while an official blocked IP-Address list is made available to the public, reports indicate that a list of criteria by which websites are judged is not as readily available.
Who is Thailand’s Lese-Majeste-Fighting Monarch?
Meet Bhumibol Adulyadej, aka “King Rama IX,” or simply “Lek” to his close friends and family.
Some interesting Jeopardy facts about King Bhumibol: he’s the world’s wealthiest monarch (with an impressive financial portfolio estimated at 30 billion), he’s been on the Thai throne since 1946 and he’s generally well-loved by his subjects. Interestingly enough, for the past two years, King Rama IX has been confined to a hospital bed – but his longstanding illness sure isn’t affecting his battle against alleged online defamation.
Internet Censorship in Thailand: Joe Gordon Trial and Verdict
What, exactly, was the Internet act that landed Joe Gordon in a steaming pile of defamation, you ask?
Gordon posted several excerpts from Paul M. Handley’s book, “The King Never Smiles” on the Internet. Handley’s manuscript is one which Thai censorship watchdogs deem critical of King Rama IX, and therefore posting translations of it on the Net is illegal in Thailand.
In any event, back to Gordon. Thai censorship workers made note of the online defamation infringement, and when Gordon traveled to Thailand for a visit this past May, cops were waiting to make an arrest.
At first, Gordon denied the charges. But after several months of protesting, the US-national plead guilty.
Arnon Nampa, Gordon’s lawyer, explained the decision matter-of-factly: “We all have to choose between the rule of law or freedom.” Nampa went on to explain that his client eventually realized that no matter what, fighting the case would have automatically landed him another year in jail without bail – and jail time is something Gordon is trying to reduce at all costs.
Internet Censorship Lawsuit Sentencing
Last Thursday, Gordon was sentenced to two years in jail. Presiding Thai judge, Tawan Rodcharoen, explained that if it hadn’t been for Gordon’s guilty plea, it would have been a five-year sentence.
Elizabeth Pratt, consul general of the U.S. Embassy, called the verdict “troubling” and voiced concern about the severity of the sentence. In a statement published by the NYT, Pratt was sure to mention her “full respect for the [Thai] monarchy,” before concluding that “freedom of expression,” is an “internationally recognized human right.”
According to the same article, Gordon has applied for a royal pardon, and as a result, can’t speak much about his Internet censorship lawsuit with reporters.
Do you need legal assistance or a professional opinion with an Internet censorship issue? If yes, contact Kelly Law today. To keep up with the latest in Internet censorship news, sign up for our newsletter.
India’s got some new, draconian Interne law rules. Netizens and human rights advocates are slamming it as an attack on free speech.
India’s Free Speech-Unfriendly Blog Laws
Under the new guidelines, anyone — private citizen or political party — can request bans on websites that contain “objectionable material”. The criteria for objectionable content include, but are not limited to:
- Threats to the sovereign integrity of India,
- The security of the state,
- Friendly relations with foreign states, and
- Public order.
Sweeping Law Language Leads to Free Speech Infringement Fears
In theory, the move seems justified, but actual practice unearths many of its problems. For starters, objectionable content is 100% subjective, which means it can be used to censor or prohibit topics. The move also severely limits bloggers’ ability to post unpopular opinions, or to jump start a good debate.
Worse, web content is often taken down without any explanation, leaving site owners with no recourse to defend themselves, or gain third party adjudication for their case. Social networking sites like Facebook or YouTube, for example, must take down what Indian law has declared unfit for web surfers within 36 hours — and the web content owner can’t appeal.
International online defamation is one of the technology law issues d’jour. In the United Kingdom, Parliamentarians are battling it out over a new statute; Canada’s high court recently made the maple-leaf country’s first ruling on the liability of hyperlinks; and here in the United States, yet another Twitter libel lawsuit was withdrawn before it got to trial.
Hyperlinks Not Defamatory In Canada
Crookes v. Newton
After 15 years of widespread Internet use, the Supreme Court of Canada released a judgment on Crookes v. Newton, the country’s first decision on hyperlinking. At the crux of the case was Canada’s “publication rule” as it relates to defamation. Traditionally, the law of Canada’s land faulted any individual or entity that repeated or published defamatory content. In Crookes v. Newton, judges were asked to decide if placing a hyperlink to libelous information on a blog, website or social media platform constituted “publication.”
Unlike many defamation lawsuits, the facts of Crookes v. Newton were surprisingly straight forward: Jon Newton operated a multi-topic blog out of British Columbia. His website contained “deep” and “shallow” links to information about Wayne Crookes – information Crookes claims is false. Looking to clear his good name, Crookes sued Newton for defamation, arguing that the links constituted publication.
Court Says Merely Linking To Defamatory Content Isn’t Defamatory In It Of Itself
After much deliberation, however, Canada’s high court ruled that a strict “application of the publication rule [sic] is like trying to fit a square archaic peg into a hexagonal hole of modernity.” The majority judges agreed that a “deep” or “shallow” link, in it of itself, does not constitute publication and is analogous to a foot- or end-note. That being said, the ruling panel also made it clear that links near or around accusatory text “may still be considered publication and therefore defamatory” – not because of the reference link, but because of the surrounding context. In other words, in the court’s mind, a link by itself is A-OK, but if you write a summary or commentary about the information in the link, then you’re still on the defamation hook.
While the court’s decision is ostensibly forward thinking, they did leave a lot of bytes on the bench for later consideration, and pointedly mentioned that the ruling did not account for “newer” technologies, like automatic hyperlinking.
International Online Defamation: UK Parliament Debating New Online Libel Bill
New UK Defamation Law
Over in the United Kingdom, things are also heating up on the online defamation front. Now that parliament has successfully changed the law allowing Will and Kate’s first-born spawn — even if it’s a female — to rule, they’ve turned their attention to more pertinent issues, like the rights of UK citizens when it comes to free speech and slander.
The proposed defamation act primarily focuses on issues related to libel tourism, but the bill is also a bold attempt to marry Internet and print publishing standards.
Notice and Take-Down Procedure
The “notice and take-down procedures” outlined in the UK’s draft defamation bill may result in a worldwide ripple effect. If approved, website operators in the UK, upon receiving a complaint about possibly defamatory material on their site, will be required to publish the objection alongside the original article, post or comment. If the material in question was posted by an anonymous user, editors will be required to remove the copy in question, unless the original poster agrees to reveal their identity.
What About Whistle-Blowers?
You’re not alone if you just thought, “Hey wait a minute! What about whistle-blowers!?” Parliamentarians thought of that too, and did include an exception for cases where there is “an overriding public interest in publication.”
In the next breath, however, pro-bill legislators published a statement saying that they hope to promote “a culture shift towards a general recognition that unidentified postings are not to be trusted as true, reliable of trustworthy.” (One has to wonder if the societal push to associate anonymity with prevarication will have a chilling effect on the emerging online whistle blowing community, which has only recently begun to find its legs.)
International Defamation Laws: Oregon’s Twibel Lawsuit Denied
Meanwhile, on this side of the pond, Internet defamation lawyers were once again disappointed to hear that another possible Twitter libel case was dismissed before it reached the trial stage, thereby eliminating an opportunity to establish substantial “twibel” legal precedence.
Doctor v. Blogger Online Defamation Lawsuit
The cyberlibel case that “almost was” involved Oregon-based Dr. Jerry Darm and blogger Tiffany Craig.
The tussle began when Craig, after hearing one of Darm’s “ubiquitous” advertisements for his cosmetic procedure medical spa, Aesthetic Medicine, posted a negative missive about him on her blog. On her website, CriminallyVulgar.com, Craig pondered how consumers’ could research the records of doctors, like Darm, who advertise. Craig reasoned that if the average patient relies on ads, how can one follow up to determine the accuracy of said endorsements?
Craig did some digging and shinned a social media light on some potentially damaging information about the doctor. Specifically, Craig discovered Darm had been disciplined by several state medical boards for “inappropriate boundary violations” with female patients. If you believe the online chatter, Darm allegedly offered to provide off-hours vein surgery in exchange for sex. Presumably eager to share the fruits of her sleuthing, Craig tweeted about her Dr. Darm discoveries.
And Darm promptly filed a $1 million dollar online defamation lawsuit.
It was up to Judge Jerome LaBarre to decide if the case was fit for trial. Current U.S. defamation laws require that LaBarre determine if 1) Craig’s comments were made in a public forum, and 2) whether the subject matter of the allegedly defamatory material was a matter of public interest. If the judge determined that the answer to those two questions was “yes,” then there would be grounds for a free-speech defense.
LaBarre ruled that “any website that allows the posting of comments without a fee or some sort of admission process” is a “public forum.” He also decided that health is a matter of public concern. During the hearing, Craig’s lawyer, Linda Williams, moved for the case to be dismissed using anti-SLAPP (strategic lawsuit against public participation) regulations. Thomas McDermott, Darm’s lawyer, objected to Craig’s facility as a medical watchdog since she had never been a patient of his client.
Plaintiff Withdrew Case
A second hearing was set for Oct. 20th and McDermott was expected to argue age-old defamation standards in a 21st century context. But on Friday, Oct. 14, 2011, Darm dismissed the charges against Craig.
And that was that. Yet another social media defamation lawsuit cut short before it got good.
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In the 1970s, US defamation law continued to shape itself around changing societal norms. And today, because of the Internet, libel and defamation legislation is, once again, taking center legal-stage.
The Supreme Court Clears up the Difference between an Opinion and Defamation
Elmer Gertz was a well-respected, civil rights attorney. Famous, too. He’d represented Nathan Loeb (of Leopold and Loeb fame) and also played a part in Henry Miller’s Tropic of Cancer obscenity trial.
In 1968, the notoriously radical John Birch Society publicly labeled Gertz a communist sympathizer. As one would expect, attorney Gertz filed a libel suit. And after 14 years of trials and appeals, Elmer prevailed. Moreover, the decision in his case set a new defamation case law precedence.
In Gertz, the Supreme Court established:
“Under the First Amendment, there is no such thing as a false idea.”
In other words, you can’t cry defamation foul if the offending statements are a matter of opinion.
In the end, Gertz was awarded $500,000 and promptly boarded a cruise around the world with his wife. At nearly every port, Mr. and Mrs. Gertz sent “wish you were here” postcards to the John Birch offices.
Hustler Magazine, Inc. v. Falwell
If you’ve never seen The People vs. Larry Flynt, queue it on Netflix. A riveting film, it details one of the most important cases in the history of US defamation law — the First Amendment feud between Hustler Magazine founder Larry Flynt and televangelist Jerry Falwell.
A cartoon anchored the Falwell v. Flynt turned Flynt v. Falwell legal saga. A depiction of Falwell, his mother and an outhouse — the parody appeared in Hustler Magazine. Outraged, Falwell sued the publication for defamation — and won. An appeals court, however, overturned the decision and the Supreme Court of the United States upheld the appeals court decision, ruling that:
- Public figures, who sue for defamation, cannot collect damages for emotional distress. (This is not the same for privacy citizens); and
- The cartoon in question was not libelous because most people would recognize it as a parody and therefore not reasonably believable.
Attempting to Tame the Internet
The defamation status quo prevailed for decades; then the Internet crashed into our lives like the Borg. When America first “plugged in”, the Information Superhighway was something akin to the Wild West. As zombo.com reminded us: “online, the infinite was possible” and rules were few and far between.
One of the first cases to tackle the emerging legal arena of internet defamation law was Stratton Oakmont, Inc. v. Prodigy Services Co. The plaintiffs, Stratton Oakmont (Yes! It is the same Stratton Oakmont depicted in The Wolf of Wall Street), went after Prodigy over smack-talk on Prodigy’s financial forum. Stratton Oakmont lawyers argued that under common-law defamation standards, Prodigy should be considered the publisher of the comments and therefore held liable.
It’s hard to believe today — now that we know what we know about Stratton Oakmont — but in 1995, Prodigy was found guilty of defamation.
The case birthed a backlash; free speech advocates and Internet pioneers rightly argued that the Stratton v. Prodigy ruling couldn’t stand. If it did, the Internet would not be able to grow into a bustling hub of international commerce.
Ultimately, politicians agreed with the backlash, and the case was effectively nullified by the 1996 Communications Decency Act, which essentially absolves search engines and webmasters of defamation liability over user comments.
What Will Be The Next Chapter In The History of US Defamation Law?
As we push further into the technologically advanced 21st century, expect to see the nation’s libel and defamation laws change — right alongside the Web.
For more information on Internet defamation, go here.
To read the first “History of US Defamation” blog post, go here.