Republishing a libel & internet censorship Oracle Tips by Burleson Consulting

 

The internet has become a major vehicle for the dissemination of information and it's cost-free bandwith has revolutionized the landscape of publishing and commercial advertising.

 

Over the past two decades the web has grown into a legitimate promotional vehicle, growing-up from a porn-ridden slideshow into a respected advertising vehicle.  All large corporations have web sites today, and all 21st century high-tech firms offer-up site-specific forums and blogs, places where anonymous people can publish information, sometimes without your knowledge or consent.

 

Allowing people to make posts in your discussion room, forum or blog raises interesting issues of personal responsibility.

• Are you legally liable if someone uses your site for an unlawful purpose? (e.g. posting copyrighted content, posting links to kiddie porn, defamatory information)
   

• You feel like you have a moral or ethical obligation to ensure that everything that you publish is legal?

Remember, the US courts are quite clear about offering no protection for false speech:

"false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth."

 

What is defamatory?

 

Something that "defames" another person can take-on several forms.  The first, and most obvious, is the false publication (e.g. personal allegations of venereal disease, a history of child molestation) that hurts someone's reputation.

 

In defamation law, the concept of "actual malice" can be an issue.  If someone is defamed innocently, (e.g. a reporter publishing a story of a child molestation case), the persona's reputation is damaged, but it's not actionable because the publisher did not have any personal motive (i.e. a rivalry between business competitors).

 

In some jurisdictions (i.e. parts of Australia), a defamatory statement does not have to be false.  For example, lets assume that someone wanted to hurt Mr. Jones, and hired a personal investigator, discovering that Jones was having an affair with a one-armed transvestite with AIDS. If their disclosure was found to be malicious, the person is guilty of libel.

 

In some parts of the globe, libel is a serious criminal offense, and insulting the presidents and dictators of some third-world countries is punishable by death.  Even in the more developed countries, "smearing" someone can lead to huge damage awards, and millions of dollars in payouts.  Remember, libel and defamation laws vary widely by State and Nation. 

 

Because participation in chat rooms and blogs makes you an international publisher, you are expected to understand the laws in every jurisdiction where your document will be distributed, in the web case, over 190 Countries. 

 

Congratulations, you are now a publisher

 

Whenever you open-up you web site to external comments, you become a publisher, with all of the rights and responsibilities of a traditional media publisher.  Whether you use a printing press, a Xerox machine or the web, you are disseminating information to the public, and you must adhere to the laws of more than 190 countries.

 

When confronted with this reality, most corporate managers say:  "I just host a web site!  I'm not a publisher!  How can I be expected to comply with all of these laws?"

 

Let's take a look at how information is distributed on the web so that we can get an idea about the levels of responsibility for each provider.  In a lawsuit, the injured party may seek restitution from many sources:

• The author

• The web site that published the information

• The search engine that disseminated the information

Without the help of a search engine, a criminal publication (e.g. copyright infringement, libel, intellectual property theft) is restricted to the confines of the web site.  It only becomes damaging after the search engines pick it up and disseminate it with amazing speed.

 

Tiny tidbits of personal information about anyone can be published in obscure corners of the internet, and the search engines pick them up, re-publishing and disseminating the damaging falsehoods.  For example, a recent law school graduate claimed that the publication of false & misleading information on the web had cost her some valuable job opportunities, as potential employers did a web search on her name and saw the libelous information. 

 

In a more onerous case, blogger Kathy Sierra suffered extreme personal threats and abuse, with people posting scary threats and insults, some even revealing her personal home address.  The police interceded, but I don't believe that the criminals have yet been arrested or charged.

 

Is linking to "juicy gossip" a crime?

 

Obviously, it's a mean thing to do, and it appears that in some jurisdictions, directing people to look-at a defamatory web page is indeed actionable.

 

Whenever you enter a message board, chat room or blog, you become a worldwide publisher and are subjected to the same laws as any other international journalist.  You might also be responsible for the words of others.  Under certain circumstances you can be held responsible for re-publishing a defamatory work and inciting defamation.  There are several criteria used to determine liability for false publications about anyone on the Internet:

1. Malicious Intent – The offender intends for publication of the statement to result in harm to the victim’s personal interests.
    

2. Reckless Disregard for Truth – The offender knows that the statement is false or acts in reckless disregard to its truth or falsity.

There is an additional standard for public figures (politicians, celebrities) whereby actual malice must be proven for a Libel charge to be valid. In recent U.S. cases, a new concept called Limited Purpose Public Figure (LPPF) has been created.

The law for republishing a defamation goes back hundreds of years in English common law, and many courts have affirmed that hyperlinking to a lie is republishing the lie.  Further, if the act of hyperlinking can be shown to be malicious, criminal libel penalties (including prison) can be levied:

Hird v Wood (1894) - This case held that evidence that a person sat by a defamatory placard beside a roadway, and pointed to it whenever others passed, was sufficient to constitute publication of defamatory material on the placard.

(Note: You do not need to be a citizen of a country to avail yourself of their libel protection.  For example, if you have a good reputation in Australia and an Australian citizen has linked to a libelous web page, then you may invoke the Australian criminal libel statutes).

Another common game among web villains is "Google bombing", having someone publish a defamation on an anonymous web page and then repeatedly hyperlinking to the lie in order to drive-up the false page ranking.

Linking to a defamatory web page is republishing the web page

As noted in Hird v. Wood, it's been long-established that you cannot "point" readers to a defamation without sharing in the responsibility.  This is especially important where the statute of limitations on a libelous web page has expired (often as little as 90 days).  While the victim may not be able to file charges against the original publisher, they do have a cause of action against those who repeat the libel via hyperlinking to the false content.  Also, bloggers are now being considered journalists and they now have the same fact-checking requirements as any other publisher, so ignorance of the law is not an excuse.  We see this reflected in mainstream publishing where blogger Insurance now required for any responsible publisher.

Hyperlinking and Jurisdictions

The research suggests that defamation laws vary widely between countries and jurisdictions.  Today's blogger is subject to the jurisdictions of over 190 countries and states and you must ensure that you do not inadvertently defame or injure someone by linking to a "false light" or a defamation.  In the United Kingdom the act of hyperlinking to a defamatory web page alone is legally actionable as “republishing defamation”.  It is also risky to link to a web page that defames some who lives in Georgia, a state that has tough laws against painting someone in a false light in the public eye.
 

The risks of publishing

 

The risks of allowing comments on your web site and great, and you must also watch any of your employees who might publish on the web.  If someone is using your company resources (company web access) or harassing someone while “on the clock”, then your company could be implicated.  For these reasons, many company’s prohibit anonymous web communication at he workplace, and whenever they are “at work” even if the are in a hotel room or working at-home. 

 

In Wagner v. Miskin (2003 ND 69), the court accepted local jurisdiction against an out-of-state web site owner.  The defendant as changed with complaint sought damages for libel, slander, and for damages from reproducing her privileged communications (e-mails).  The court judged against the libeler, granting extensive punitive damages to the tune of $3,000,000.00.
 

Can a search engine be responsible for facilitating bad acts?

 

The central question is whether a search engine can be held responsible for indexing a "bad" web page?  This article notes:

"Alarmingly, Google operates such a policy without fear of accountability, responsibility or compensation for any unjustified degradation suffered by individuals or for the potentially huge costs incurred by businesses supplying bona fida goods and services to the economy"

Google has already agreed to comply with many non-USA laws and has applied content filters.  Will this be the tip of the iceberg?

 

Here are my notes on web publishing responsibilities