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The Internet
Journalist
Web privacy, false light and defamation laws
Don Burleson
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Burleson is co-author of
Web
Stalkers: Protect yourself from Internet Criminals & Psychopaths,
$19.95 by Rampant TechPress.
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.
Internet law and personal
liability
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.
The laws also vary by State and Nation, and
South Carolina has strict laws against invasion of privacy. In
the publication "THE
RIGHT TO PRIVACY vs. THE FIRST AMENDMENT" (1978), author
Alice Marie Beard notes that in many States it appears to be illegal
to intrude upon someone's seclusion or solitude, to publicly
disclose embarrassing private facts about someone; or to generate
publicity that places the someone in a "false light" in the public
eye:
(see Renwick, 310 N.C. at 322, 312 S.E.2d at 411)
Four areas of the right to privacy are
recognized:
(1) intrusion upon the plaintiff's
seclusion or solitude, or into his private affairs;
(2) public disclosure of embarrassing
private facts about the plaintiff;
(3) publicity that places the plaintiff
in a false light in the public eye, and
(4) appropriation, for the defendant's
advantage, of the plaintiff's name or likeness.
Now, a lot has changed since 1978, but much it
it moves in the direction of making people responsible for what they
publish, even if they are grossly unprepared to be a journalist.
In this great essay title "Here
Come the Judges (and Lawyers)",
Dan
Gillmor notes that old Aunt Sara's catty blog is now subject to U.S.
Libel laws:
Online journalists are no less required
to follow the law than anyone else. A blogger who commits libel
may have to face the consequences.
After the public fiasco from a Yahoo forum
member publishing libelous information about his employer, Gillmor
notes that companies can now demand to find the real identities of
defamatory bloggers:
So far, bloggers may have avoided the
legal chopping block, though threats against bloggers abound.
Commenters on Internet forums have had more trouble. In
particular, some companies have been especially assertive in
financial forums, demanding from Internet service providers the
identities of people who have made allegedly defamatory
postings.
Tortuous Interference in
Cyberspace
Many states have laws prohibiting people from
publishing statements that unlawfully interfere with a person's
right to conduct business. In the United States, tortuous
interference claims are made when someone publishes statements
designed to interfere with another normal course of business.
United Laboratories, Inc. v. Kuykendall,
322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988).
Plaintiffs assert that the trial court
erred in dismissing their claim for tortious interference with a
contractual relationship. The elements of the tort of
interference with contract are:
(1) a valid contract between plaintiff
and a third person that confers upon plaintiff a contractual
right against a third person;
(2) the defendant knows of the contract;
(3) the defendant intentionally induces
the third person not to perform the contract;
(4) the defendant acts without
justification; and
(5) the defendant's conduct causes
actual pecuniary harm to plaintiff.
For example, the
North Carolina Supreme Court has held that tortious interference
with prospective economic advantage occurs when a party interferes
with the freedom of contract and “not in the legitimate exercise of
defendant's own right, but with design to injure the plaintiff . .
."
(see Owens v. Pepsi Cola Bottling Co. of Hickory, N.C., Inc.,
330 N.C. 666, 680, 412 S.E.2d 636, 644 (1992)).
Tortuous Interference on the Web
To prevail in a tortious interference claim (or
"tortuous interference", both are acceptable spellings),
you need to show that the publication induces a person not to
fulfill a business relationship. While the First Amendment protects opinions, we must remember that
the standard is very different for tortuous interference than it is
for libel.
To prevail in a Tortuous Interference claim you
must prove that a person:
- Knows about your business relationship
- Interferes with your relationship
- and that they are unjustified
in doing so
For a simple
example of "unjustified", a business competitor would be unjustified
in conducting a "smear" campaign against a business competitor,
which results in advertisers withdrawing from existing contracts for
fear of bad publicity.
On the web, it suggests that statements
below, while not libelous per se, may be actionable as tortuous
interference, especially if the publisher induces the public to
interfere with the business relationship:
-
"I cannot believe that people actually pays
Waldo's Widgets money"
-
"I feel sorry for anyone unfortunate enough
to use Waldo's Widgets services"
-
"Waldo's Widgets products are shoddy
and poorly made"
-
"I wonder if their clients know what serial
offenders Waldo's Widgets are?"
-
"Amy Author's article is wrong, it's a
fact, not my opinion"
-
"The owner of Waldo's Widgets is a fraud"
Civil Conspiracies and Cyberlaw
The
US department of Justice defines a conspiracy such that it
appears to clearly apply to internet publishing:
A conspiracy is a combination of two or more persons to
accomplish some unlawful purpose, or to accomplish a lawful
purpose by unlawful means.
DOJ also notes that civil conspiracy may apply to a "variety of
conduct" that might harm or inhibit the free actions of a third
party:
The words "injure," "oppress",
"threaten," or "intimidate," as used in the conspiracy statute,
are not to be interpreted in any technical sense, but may cover
a variety of conduct intended to harm, frighten, or inhibit the
free action of other persons.
Anytime that people conspire to defame or
interfere with another person or business entity, Civil Conspiracy
laws come into play.
Click here
for a listing of some Federal laws protecting against Civil
conspiracies.
Chambers v. Stern, 347 Ark. 395, 64 S.W.3d
737, (2002); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47
S.W.3d 866, (2001); Mason v. Funderburk, 247 Ark. 521, 446
S.W.2d 543 (1969).
To prove a civil conspiracy, a
plaintiff must show that two or more persons have combined
to accomplish a purpose that is unlawful or oppressive or to
accomplish some purpose, not in itself unlawful, oppressive
or immoral, but by unlawful, oppressive or immoral means, to
the injury of another.
Chambers v. Stern, supra; Dodson v.
Allstate Ins. Co., supra.
A civil conspiracy is not actionable
in and of itself, but a recovery may be had for damages
caused by acts committed pursuant to the conspiracy.
Chambers v. Stern, supra; Dodson v. Allstate Ins. Co.,
supra. A civil conspiracy is an intentional tort which
requires a specific intent to accomplish the contemplated
wrong.
Tortuous Interference cases are sometimes tied
to Civil conspiracy laws because Federal Statutes have strong
prohibitions against any groups who conspire to injure the
reputation of an individual or business. This is especially true on
the web where a single publication has a worldwide reach.
USA Cases on Cyber defamation
law
Click here to read the landmark (Zeran
v. Diamond Broadcasting) case where the US courts removed
liability for third-party providers of message boards and forums:
Congress made a policy choice, however,
not to deter harmful online speech through the separate route of
imposing tort liability on companies that serve as
intermediaries for other parties' potentially injurious
messages.
Congress, however, has chosen for policy
reasons to immunize from liability for defamatory or obscene
speech "providers and users of interactive computer services"
when the defamatory or obscene material is "provided" by someone
else.
However, Zeran speaks only to an instant case
where the forum provider was not actively involved in the defamatory
publications.
Anti-SLAPP
laws and cyberlibel
SLAPP is for "Strategic Lawsuits Against Public
Participation", a legal doctrine that allows freedom of speech on
important public issues.
In the Harvard publication
SLAPP and Black Hole of Internet we see a reference to (New
York Times v. Sullivan) where the Supreme Court restricted the
rights of public officials to sure for libel:
Simply put, if a reporter or editor has
no reason to doubt a source, there's no liability for libel even
if the source says something wildly libelous such as Blumenthal
"has a spousal abuse past that has been effectively covered up."
However, the anti-SLAPP laws do not give free
rein to internet publishers covering public issues:
The court limited the right of recovery
to public officials who could prove actual malice (i.e., that
the newspaper knew the statement was false or acted in reckless
disregard of the truth).
We see that the Communications Decency Act (CDA)
has also been used (unsuccessfully) as a defense against libel, but
the courts have ruled that forum owners cannot be absolved if they
participate in the defamation:
Sabbato v. Hardy, Case No. 2000CA00136
(Ohio Ct. App., Dec. 18, 2000). The court determined that Hardy
was not automatically entitled to immunity under Section 230 of
the CDA because the complaint alleged that Hardy had personally
participated in creating the defamatory comments.
What about jurisdiction for
web-based defamation?
When it comes to hurling hurtful statements
(whether they are true or false, in some cases it does not matter),
we see that the laws are very different in different lands.
The shifting Burden of Proof
In Canada, the UK and Australia, libel laws are
biased
in-favor of the injured party and it is up to the libeler to
prove that their statements are true. This is the exact
opposite of USA libel law where the defamed party must prove that
the statement is false.
Under the current legal regime, you can
be sued for anything you say about another person that damages
their reputation.
If sued, the onus is on you to prove the
truth of your statements; the fact that you genuinely believed
them to be true is not good enough. Even truth is not an
absolute defence --- if the court finds you told the truth but
your intent was malicious, you might lose anyway.
Canadian libel law is so draconian that
people come from all over the world to file libel suits in
Ontario.
International Cyber Libel Laws
Canadian courts have ruled that the Internet is a "Broadcast
medium" subject to the same rules of libel as traditional broadcast
media such as TV and radio. This ruling has far-reaching
impact for cyber libel. This
Canadian Cyberlibel site notes that people harmed by a libel
must file a claim within six-weeks of publication, and those who
discover a libelous web page after six weeks has no cause-of-action
for a libel claim (see
Weiss v. Sawyer) in Canadian courts.
English courts have been coming-down hard on
anonymous libelers, as noted in
Totalise v. Motley Fool:
"I have no hesitation in finding that
the balance weighs heavily in favour of granting the relief
sought.
To find otherwise would be to give the
clearest indication to those who wish to defame that they can do
so with impunity behind the screen of anonymity made possible by
the use of websites on the internet."
On appeal, Lord Justice Aldous noted that the
defamed party should be completely reimbursed for the costs of
finding the identity of the anonymous defamer:
I consider that there is considerable
force in Mr Moloney's argument that those who operate websites
containing discussion boards do so at their own risk.
If it transpires that those boards are
used for defamatory purposes by individuals hiding behind the
cloak of anonymity then in justice a claimant seeking to
establish the identity of the individuals making such defamatory
contents ought to be entitled to their costs.
In Australia, it appears that defamation and libel laws are so
strict that they can become criminal offenses:
In South Australia, Victoria and the
Northern Territory under common law any libel of sufficient
seriousness can lead to criminal proceedings.
In Tasmania, Western Australia and
Queensland the legal code provides for a misdemeanour (where
there is no knowledge of the falsity of the statement) or a more
serious penalty where the publisher knows that the defamation is
false. Criminal defamation in the ACT involves malice and
knowledge of falsity.
In the USA,
several states have proposed bills extending the Digital
Millennium Copyright Act (DMCA) is being extended by several States
to foil anonymous publishers on the web.
Both bills would flatly ban the
possession, sale, or use of technologies that "conceal from a
communication service provider ... the existence or place of
origin or destination of any communication".
Crossing jurisdictions
The laws vary so widely that you can commit a felony just by
viewing web sites that are illegal in your country (e.g. kiddie porn), while the web site
owner is perfectly within the laws of their country.
But what about someone in Canada who publishes
a blog about a person in South Carolina? Like the answer to most
questions, it depends. Jurisdictions (States, Nations) vary
widely, but some suggest this polestar for blogging
safety:
You are bound by the rules in the place
where the defamed person reside, not where you published the
offending statement.
For details on how US State courts assume
jurisdiction against residents of other countries,
click here:
In other words, a blogger in Norway could be
hailed into the jurisdiction of U. S. Courts for false light
invasion of privacy, even if the blog was acceptable in Norway.
What about citing anonymous
publications?
In Gillmor's comments on Nymox v. Yahoo, we see
that the judge noted that anonymous posters do not gain the right to
defame others, just because they do not reveal their true identity:
But preserving the value of anonymity,
and robust speech, is vital. The judge, striking an appropriate
balance, said there’s no right to defame and damage others under
a cloak of anonymity.
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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