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The Internet
Journalist
Fact Checking and Defamation requirements
Don Burleson
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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.
Blogs! The Blogsphere! Man-o-man, I
haven't seen this much hyperbola since Windows XP was released!
There are people who believe that empowering gossipy old Aunt Sara
with the right to publish her juicy tidbits is going to
revolutionize the dissemination of information.
Me, I'm not so
sure. . . .
There are three categories of libel
participants:
-
Primary publishers, who are are
strictly liable for statements that damage others, just like the
standard for all authors.
-
Distributors (Message boards, blog
owners) - Distributors can also include traditional book stores
or libraries, which are held liable if they know or have reason
to know of the defamatory nature of the material.
-
Conduits (AOL, Google) These
companies no control over content and ordinarily are immune.
The Court of Appeal held that the federal law
just said an ICS was not liable as a "publisher' and said nothing
about liability as a "distributor," so they can be liable for
defamation if they know or have reason to know the material is
libelous.
There are already reports in the news about how
blogs are effecting American politics, but the real questions is
what we are going to do about millions of Americans who are governed
by the rules and regulations of journalism. A catty remark or
insult might not seem like much a the time, but internet claims for
libel, defamation and invasion of privacy are rising. There
are also serious exposures for companies that don't have an
Employer
anti-blogging policy.
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.
I hear that "self-publishing" on the web as a
new empowerment of tiny voices that might not otherwise be heard,
but I'm not so sure that this blog phenomenon won't open a huge
can-of-worms as more-and-more blogs begin to look like tabloids,
going far beyond the First Amendment and into areas that violate the
rights of private citizens.
Congratulations, you are now
a publisher
This is the rub. Anyone who operates a
blog is now considered a journalist, and subject to the same rules
as any other international publisher. Now, I don't believe for a minute that everyone in the "blogsphere"
understands the tenets for reporting about celebrities and how the
laws are different for a "Limited purpose public figure", much less,
the rules for publishing facts about private citizens.
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:
What is Libel?
Libel is the publication of false, defamatory
statements. However, in some jurisdictions, defamation, in an
of itself is actionable, and in other places, presenting some in a
false light in the public eye can get you sued.
The student press law center has an excellent
plain English
overview of libel law and notes the types of lies that are
considered defamatory:
-
Statements regarding improper sexual
conduct. (For example, printing that an unmarried student is
pregnant.)
-
Statements that associate someone with a
vile disease.
-
Statements that accuse someone of illegal
behavior.
-
Statements that hurt someone's livelihood.
-
Statements that allege racial or religious
bigotry.
In the past, many people felt that nobody would
undertake the expensive and time-consuming efforts to uncover
internet defamers. That attitude is changing as defamed
people strike back, winning millions of dollars in judgments and
implicating deep-pockets employers who allowed their employee to
violate the rights of others using corporate resources.
Know the libel laws, from
Afghanistan to Zimbabwe
As a publisher of a blog you may be subject to
the laws of more than 180 countries from Afghanistan to Zimbabwe.
Cautious bloggers know that defamations laws vary widely and you
must ensure that you don't inadvertently defame someone, even if it
is published it in your blog comments without your knowledge.
This survey of
criminal libel emphasizes that some jurisdictions have very
specific defamation laws, some with criminal sanctions:
"Many nations have criminal penalties
for defamation in some situations, and different conditions for
determining whether an offense has occurred. Thus, for example,
in
Zimbabwe "insulting the President" is by statute (Public
Order and Security Act 2001) a criminal offence."
Depending on where you live (or anywhere your
blog may be accessed), you may fall under the laws of that country.
This article notes that if your blog can be accessed in
Australia, you could be sued for libel, where the law strongly
favors the defamed person:
"What it means is that foreign
publishers writing material about persons in Australia had
better have regards to the standards of Australian law before
they upload material to the Internet," he said"
The standard for libel and defamation are very
different in the UK and Australia than in the USA. In some
countries, the burden of proof is on the publisher to prove that
their information is true, while in the USA the harmed party must
prove that the publishers content was wrong.
This is very important if you have a web site
that allows article commentary, a blog that allows comments, or a
forum, where you might be held responsible for publishing the
libelous comments of other people.
Here is an example where a responsible web forum owner
deactivated messages that might be defamatory:
"Our regular readers may have noticed that
we shut down comments privileges for about a week. . . However,
although the majority of comments were appropriate, important
ethical and legal concerns were raised by a significant minority
of comments."
In the UK the law is being refined by case
cases, but it appears that blog comments are now treated like "Letters to
the Editor", and published on your blog, at your peril. The “Read
My Day” blog site in England has published a warning that
suggests that British bloggers are
responsible for all comments
posted into their blogs:
Posting comments on
the internet is akin to writing the same comments to the letters
page of every major national newspaper in the world. The
international scope of blogs mean that claims in any country are
possible - territorial limits are a thing of the past.
Bloggers must also
be aware of their responsibilities as hosts of discussions where
comments are invited from readers. Any defamatory comments made in
other posts on the blogger's website may result in the blogger being
held responsible for those comments and being sued for libel.
Defamation
legislation gives a defence where the 'publisher' (the blogging
host) has no knowledge of the defamatory remarks or no reason to
suspect the remarks have been made. This gives some protection to
Internet Service Providers (ISPs) but very little comfort where the
blogger has read and accepted comments on his/her blogging pages. A
prudent blogger must exercise editorial control over comments to
avoid this liability as a publisher of libel.
In many countries, blog hosting services are
obligated to remove defamatory content, as noted in these
blog guidelines for Ireland:
"Hosting” is the storage
of information provided by subscribers. Large companies and
organizations are their own hosts, but the sites of small to
medium sized organizations and personal web-pages, blogs and
discussion board sites will tend to be hosted by an ISP. Under
the regulations, hosts are given an immunity from libel
liability, which can be lost where a host is aware of defamatory
content and fails to act expeditiously to remove or block the
offending content.
Republishing a libelous
statement
Traditionally, the US courts have distinguished
between a publisher (who is clearly responsible for their content)
and an innocent distributor (e.g. an ISP such as AOL or Yahoo) who
merely disseminates the
content. This distinction is akin to the difference between an
author and a book store. The book store in immune in some
jurisdictions, while other jurisdictions add the restriction that
they must be "innocent distributors" (i.e. they had no foreknowledge
that they were aiding in the defamatory act).
Just publishing a
link to a libelous article is risky. Attracting attention
to a defamation by linking to it can be considered republishing the
libel, and you can be held responsible.
This publication by the
Centre for Media, Communications and Information Technology Law
(2000) suggests that UK and Australian laws may be different,
holding distributors liable in certain cases, especially when the
distributor has been repeated notified that they are republishing
defamatory content and their degree of control over the content
(Note: This research is dated 2000, and the case law is
constantly evolving):
"As explained at para [3.2] above,
Australian courts have adopted the principle that everyone who
“takes part” in communicating defamatory material, in whatever
degree, is a publisher, and therefore liable for the publication
of defamatory material.
There is no English or Australian
authority that conclusively establishes that a facility provider
is not liable for publishing defamatory material."
"At para 3.6.2 above, it was pointed out
that in Urbanchich v Drummoyne Municipal Council, Hunt J held
that a person in control of premises could be liable for
publishing a defamatory statement displayed on the premises if
it could be established the person consented to the presence of
the statement; and that consent could be inferred from notice of
the statement, an ability to remove it and a failure to do so
within a reasonable time."
"A carrier is a publisher if it consents
to the communication of defamatory material by means of its
network. Consent might be inferred from notice of the material,
an ability to remove it and a failure to remove it within a
reasonable period following a request.
This possibility is based on an analogy
with cases such as Byrne v Deane and Urbanchich v Drummoyne
Municipal Council, which establish that a person who controls
premises may be liable for failing to remove defamatory
material."
Goodbye Anonymity
Anonymous bloggers are learning that they do not have "carte
blanche" to defame and libel people using the web, and a judge has
ordered the identification of a "anonymous" blog poster:
Councilman Patrick Cahill is pursuing a
libel lawsuit and wants the court to unmask the identity of the
person who posted the messages to an Internet blog under the
alias ``Proud Citizen.''
A Superior Court judge has ordered
Internet provider Comcast Cable to release the Web address of
the person who posted the messages.
To improve goodwill (and performing a public
service), Microsoft recently spent
millions of dollars
tracking-down phishers to hold them accountable for their
crimes:
Microsoft's lawsuits were brought
under the Lanham Act, a federal trademark
protection law that carries a maximum of $1
million fine per violation. The so-called
"John Doe" suits are generally used when the
plaintiff does not know the names of the
defendants.
Every Web site and e-mail contains a
unique Internet address that can be traced
back to the service that hosts it. Once a
federal judge gives consent for the lawsuits
to go forward, the company can subpoena the
Internet service providers from which the
phishing scams originated in an attempt to
force the ISPs to reveal the identities of
the account holders.
Libel and the limits of the First
Amendment
United States
Courts have long recognized limits to the free speech clause of the
First Amendment and it does not give you the right to scream “fire”
in a crowded theatre (US Supreme Court, Oliver Wendell Holmes,
1919).
This is
especially true with regard to false publications so inflammatory
that they would incite a reasonable person to committing illegal
acts. In these cases the Defendants published lies that were so
offensive that the publishers could reasonably forecast harassment,
threats and intimidation to result from their publications. (see
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Cohen v.
California, 403 U.S. 15 (1971), Feiner v. New York, 340 U.S. 315
(1951), Cox v. Louisiana, 377 U.S. 288 (1965)).
We must remember that the "right to your own
opinion" has
Constitutional limits and those who defame others cannot drape
themselves in the First Amendment and prevail: (see
Boyce v. Wake County)
"The use of a known lie as a tool is at
once at odds with the premises of democratic government and with
the orderly manner in which economic, social, or political
change is to be effected.
Hence the knowingly false statement and
the false statement made with reckless disregard of the truth,
do not enjoy constitutional protection."
The US Courts have the right to restrict speech
if the speech constitutes "Fighting Words". Fighting Words means
speech usually intended to be a personal insult and directed to a
specific person, which by their very utterance inflict injury and
tend to incite an immediate breach of the peace.
Fighting Words are not protected under the
First Amendment because their slight social value is outweighed by
the government's compelling interest in social order. (see
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Cohen v.
California, 403 U.S. 15 (1971), Feiner v. New York, 340 U.S. 315
(1951), Cox v. Louisiana, 377 U.S. 288 (1965)).
Cyberlibel cases are
exploding
Cyberstalking and Cyberlibel laws in the USA have made it clear that
internet harassment and defamation are serious offenses. Here
are some US laws that are being used to prosecute internet
harassment, invasion of privacy and defamation:
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“It is the policy of the United States -- to ensure vigorous
enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of
computer”. (see 47 U.S.C. § 230(b)(5))
-
“Electronically mail or electronically communicate to another
and to knowingly make any false statement concerning death,
injury, illness, disfigurement, indecent conduct, or criminal
conduct of the person electronically mailed or of any member of
the person's family or household with the intent to abuse,
annoy, threaten, terrify, harass, or embarrass.” (see North
Carolina Code §14-169.3(b)(3))
-
Federal law 47 U.S.C. § 223(a)(1)(C) penalizes whoever:
(1) in interstate or foreign communications-
(C) makes a telephone call or utilizes a telecommunications
device, whether or not conversation or communication ensues,
without disclosing his identity and with intent to annoy,
abuse, threaten, or harass any person at the called number
or who receives the communications.
1 -
intrusion upon the plaintiff's seclusion or solitude or into his
private affairs; and
2 - publicity which places the plaintiff in a false light in the
public eye.
More than ever before, injured parties are
seeking remedies for damage to their business and reputation, and
many of these cases are related to "anonymous" postings in message
boards, chat rooms, forums and blogs.
Now, more than ever before, victims are
fighting back and participants in message boards, chat rooms, forums
and blogs are now being hailed into court in record numbers.
Cyber libel can be a criminal
offense
Any internet publisher must be cognizant of the laws of more than
190 countries and the varied State laws in the USA. While a
flippant insult or anonymous jab might be legal within your
jurisdiction, the libelous comment might actually be a crime if the
injured party resides in an area with strict anti-defamation laws.
This publication by the
Centre for Media, Communications and Information Technology Law
(2000) notes:
"In New South Wales, defamation law is
not codified, but the common law is significantly modified by
the Defamation Act 1974 (NSW). In all Australian States and
Territories defamation may attract criminal, as well as civil,
liability."
North Carolina has very strict laws making it a criminal offense
for someone to secure the publication of false or libelous information (see North
Carolina Code Chapter 14, § 14-47):
“If any person shall state, deliver or transmit by any means
whatever, to the manager, editor, publisher or reporter of any
newspaper or periodical for publication therein any false and
libelous statement concerning any person or corporation, and
thereby secure the publication of the same, he shall be guilty
of a Class 2 misdemeanor.”
New - Colorado gives
stiff prison sentence for internet libeler
This Durango Colorado article notes that a Colorado man was
sentenced to 23 years in prison for criminal libel for acts
of defamation on the web, "spreading lies over the
Internet":
Stephenson instilled fear and terror into his
victims' lives by spreading lies over the Internet,
creating fake posters and sending phony letters. . .
One example of how he victimized was creating a Web
site in a professor's name identifying her as a sexual
deviant and asking anyone reading to come rape her. He then
posted the professor's home address.
He also sent a fake obituary to an Alaskan newspaper
announcing that a jail guard had died of AIDS. The guard was
actually alive and well.
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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