Defamation Based on Blogging is a Scary Slippery Slope
You might have heard that Google has been ordered to hand over the identity of an anonymous Blogger user so that person can face a civil law suit for posting disparraging comments about a fashion model. The blog was called NYC Skanks (since removed from the interwebs) and reportedly called this model words like “ho” and “skank.”
Despite the irony of all the anonymous ”defamation” happening in the comments to the New York Post article linked
above (my favorite being the less-than-polite age correction, as the Post article indicated the model’s age as 27 while The Sydney Herald stated she is 37), the real issue is courts telling ISPs to hand over “anonymous” (I’m hedging because I bet the Blogger terms of use wouldn’t begin to protect you in the face of a court order) user data based on a notoriously subjective defamation test. The obvious slippery slope here is the opening of the floodgates to (frivolous) lawsuits based on every nasty blog post or comment. I agree that this is scary when applied to, for instance, anonymous whistleblowers or inside sources who face threats of (non-judicial) retaliation by having their identities revealed.
But, since I can’t add anything to the discussion of what would happen if every court in the land took this stance, I’ll just say that I don’t think they will. I think the attorneys’ statements in this case (as reported in the Post) speak to why:
“The rules for defamation on the Web — for actual reality as well as virtual reality — are the same,” [the model's lawyer] said. “The Internet is not a free-for-all.”
But…
“The floodgates would be opened if you tried to regulate these very broad, common insults and invective on the Internet,” said [the attorney for the blogger].
I use the internet pretty regularly and would argue that it is, in actual reality, often a free-for-all. I count on the rise of internet- and social media-savvy judges to make sure decisions like this won’t stand nationwide.
Thanks to Iowa cyberlaw attorney Brett Trout (@BrettTrout) for the tip on this one.
If anyone out there wants to weigh in on the Blogger terms of use issues, and everything else glossed over here, we’d love to hear it below.
Related posts:
This is actually turning into something of a hot issue after the Topix decision. There are a lot of schools of thought re: theories of cyberlaw: the obvious one that you pointed out being that the cyber laws are derived from common law. Some scholars have wondered whether the medium requires a deviation from the traditional laws, but the debate (or at least what I saw of it in my cyberlaw class) is still fairly up in the air.
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Regardless of the medium by which defamatory comments are published, a person still needs to be able to be able to seek redress for the wrong suffered. If that requires the identity of an anonymous poster to be revealed, then I believe that the courts should be able to direct the company hosting the service to provide those details. However, there must be a good cause of action before such a direction is issued. The potential issue here is not so much with revealing the identity, but with the test to be applied in determining if the comments are defamatory. If the plaintiff has a good cause of action, then they should be able to seek damages from the person who caused the harm. An anonymous posting as in this case should not be a shield to hide behind. This case can be distinguished from a whistle-blower case by the purpose of the comments. It would appear at least to a reasonable person that the blogger’s comments were not made to expose a wrong for the public good.
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Chris Reply:
September 2nd, 2009 at 3:11 am
@David, it seems like redress for an injury should be available, however It is not clear from the details above that actual injury was suffered. My understanding of the issue regarding defamation is that the harm is found by loss of esteem within a relevant social group for the party/parties claiming injury. With this in mind, a lone blogger saying disparaging and hurtful remarks on it’s face should not be enough, it should require that the message is carried to third parties. This returns to the concern about the source because it may be that due to the lack of accountability the author takes with his or her postings that in the context of the third party no loss of esteem can be established. Further, if the Internet as the medium should further act to distance the reader from a belief of the material as the credibility of a lone blogger may not be sufficient to establish an influence on any reader, especially if the blogger is crass enough to frequently refer to other’s alleged proclivity to engage in private personal relations.
It seems that the most practical view is to review the medium and gauge the nature of the expression in regards to the standard of expression for that medium. As Internet blogging provides easy access to a creative outlet as well as typically low accountability, the propensity for vulgar material to appear on the Internet is as astonishing as it is common practice. It seems that the vast majority of comments on large blog sites contain at least one, and usualy many, statements of a more insulting and equally defamatory nature. As your comment suggest that redress should be offered regardless of medium, it seems important to draw the distinction that the very nature of the medium may alter the standard for assessing harm and thereby make the medium an extremely relevant fact. I would not expect that any redress is available for libelous comments any more than there would be for libelous posts to a blog because the nature of the medium makes such sad and displeasing comments a penchant of communication in the medium.
Ultimately it is a question of how accountable should people be for what they say or write and unfortunately the internet’s ability to spread information very rapidly to total strangers makes for a stage set for conflict. Hopefully the matter will be resolved through negotiations and it will be unnecessary to litigate the matter, because litigation is not fun for anyone (or at least it shouldn’t be fun for anyone).
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I agree with David to the extent that anonymity on the internet can’t justifiably serve as a shield against present laws. There are anonymous tools available which could spread defamation every bit as effectively as any newspaper or radio broadcast. For the laws to have any continued relevance, it seems likely that they must be interpreted to include speech on the internet just as they include other media.
At the same time, however, I’m reminded of the work of IP thinkers like Larry Lessig and Chris Anderson. How can you possibly begin to stifle this sort of defamation? Ask the music industry how far legal action has gotten them in terms of preventing file sharing. They’ve had tremendous recent victories, but whatever deterrent effect there’s been has been unable to stop the problem. Sharing music is even easier to prevent than defamation, because we’re talking about works that you can tag with DRM. Trying to identify and remedy defamation on the internet is looking for a needle in a stack of needles.
Options for legal recourse have lagged farther and farther behind technology for quite some time now, and it’s hard to imagine a resolution from that quarter. The real take-away might simply be that making a positive effort to manage your image online is something that everyone needs to do in this day and age.
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David Reply:
August 20th, 2009 at 6:48 pm
@Feisthammel,
I agree for the most part. However, this is not about stifling defamation. There is no need to prevent defamation on the Internet. Defamation be it libel or slander is not a criminal act. This is about a person who believes that they have been defamed having the ability to obtain relief for the harm caused by the defamatory comments of another. If I am defamed by another in any way shape or form, I want to be able to pursue relief for that harm.
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Feisthammel Reply:
August 20th, 2009 at 9:38 pm
@David,
I certainly see your point, and I do agree so far as it goes.
I suppose the question that still concerns me is how service providers will approach these questions. Ideally, they’ll always be given a clear and reasonable cause of action, and the decision to disclose an author’s identity will be an easy one. Even so, the Blogger case centers around a tiny, spurious blog about an obscure fashion model. God only knows how many such lawsuits could spawn from Blogger’s hosted content. How many will it take before they find themselves having to regulate their bloggers’ speech more closely or drop any pretense of protecting anonymity?
Blogger is simply one example, of course, but the question applies to other gatekeepers as well.
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