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Don Burleson Blog 







The Internet Journalist
Fact Checking and Defamation requirements

Don Burleson


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:

  • “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.

  • Intrusion and false light claims as types of invasion of privacy actions:

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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