When libel goes online

From the Summer 2007 issue of The News Media & The Law, page 34.

By Elizabeth Soja

When blogger Lance Dutson criticized the Maine tourism office on his blog “Maine Web Report” last year, he never expected to get hit with a multimillion-dollar libel lawsuit.

In response to, among other things, Dutson’s comment that Maine’s tourism office and its advertising company were “pissing away” tax money, he was served with a lawsuit from Warren Kremer Paino Advertising LLC, the advertising agency hired by the Maine Department of Tourism.

Dutson said that even though he was “diligent about fact-checking and knew nothing on there was provably libelous,” he still seriously contemplated just taking his blog off the Internet.

However, with the help of some attorneys and many fellow bloggers and journalists, Dutson and others began a media campaign that called attention to the case. Luckily for Dutson, the campaign worked the lawsuit was dropped just one week after it was filed.

However, Dutson’s story still stands as a cautionary tale for bloggers who offer critical commentary about companies or individuals on their Web sites.

Same law, different challenges

According to a report from the Media Law Resource Center, bloggers have been sued most frequently for libel in the state and federal courts of 28 states and the District of Columbia as of spring 2007.

The laws of defamation are the same whether a story is printed in The New York Times or on someone’s personal blog. However, bloggers face a unique set of problems when it comes to defamation suits since they often act as reporter, editor and publisher of their blog.

In most jurisdictions, in order to sue an individual whether or not that person is a journalist for defamation, a plaintiff must show that the individual wrote a false and defamatory statement, the plaintiff could be reasonably identified as the subject of the statement, and the statement was published. That requirement can be met whether a statement is published in a newspaper or on a blog.

Under some circumstances, the plaintiff must show that he or she was actually damaged or that the reporter wrote the statement with “actual malice,” meaning that the individual knew the statement was false and printed it anyway or acted with reckless disregard for the truth. This is necessary when the plaintiff is a public figure.

There are no special defamation laws that apply only to journalists, print or otherwise.

Kurt Opsahl, an attorney with the Electronic Frontier Foundation who co-authored the organization’s Legal Guide for Bloggers, said it will take time before all areas of the law are fully adapted to the “blogosphere.”

“Every time new technology comes to the floor, there are questions about how the law applies to it,” Opsahl said. “It’s like asking, how do you put the old wine into a new bottle?”

But Opsahl said that with defamation law, there are very few uncertainties when it comes to bloggers. “It is the same law whether the defamatory language is in a print newspaper, a blogger writes it online, or you say it on the street,” he said.

However, bloggers can often face special problems when they are sued.

“Although the rules are the same, the challenges that bloggers face are different,” Dutson said. “The biggest difference between traditional journalists and bloggers is that traditional journalists usually have a company or publication that would stand behind them.”

Dutson added that because “bloggers are both the publisher and the reporter,” bloggers are more susceptible to unknowingly writing libelous comments since their work is not reviewed by anyone else.

Robert Cox, president of the Media Bloggers Association, agreed that “the lack of infrastructure” involved in blogging “is definitely a problem.”

Cox said it can be a problem that bloggers “don’t have someone to turn to in the newsroom to ask, ‘Is this OK? Can I print this?’ Bloggers need to know what can get them in trouble, but if they have questions, they often don’t know who to call and ask.”

Liability for what others say

Bloggers also face a unique situation since readers can usually comment instantly on a Web site.

Commenting on others’ publications is nothing new, as evidenced by a traditional print newspaper’s op-ed page. Traditionally, a newspaper is liable for a reader’s editorial comments on the op-ed page or any other text found in the paper if that text is defamatory.

However, unlike traditional newspapers and television broadcasts, blogs often have the capability of inviting instant comments from third parties content that may or may not be defamatory.

In an important distinction between print and online journalism, Opsahl said that generally, bloggers need not worry that they will be legally liable for defamatory statements that others post on the blog in the form of discussion or comments.

Additionally, when a newspaper allows comments on its online edition, the newspaper is not liable for those comments, in the same way that bloggers are generally not liable for what others post on their Web site.

Opsahl said that this difference is due to part of the Communications Decency Act of 1996. This federal law says that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The law also says that no state can enforce a law to the contrary.

“As for a blogger’s liability about what others say for example, a blogger who allows comments on his blog the difference between traditional journalism and blogging does matter,” Opsahl said. “When online publications, like a blog, provide a soapbox on which others may speak, the soapbox isn’t liable for what the speaker says.”

The California Supreme Court emphasized this immunity in November when it found in the case Barrett v. Rosenthal that the federal law’s “statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended.”

The court accused the lower court of “[s]wimming against the jurisprudential tide” when it found that an online publisher could be held liable for a third party’s defamatory remarks since other courts have found that the Communications Decency Act protects against this.

The threat of litigation

Cox said the biggest problem that bloggers face is the threat of lawsuits and the fear those threats can instill in bloggers.

“Many bloggers think that if they’re careful about what they write, they can avoid the threat of litigation,” Cox said. “In reality, when they publish on their blog, they become exposed to that threat no matter what.”

Cox noted that if a case does go to court, a blogger will most likely win if his writing is well-researched and not defamatory, but it will not keep him out of court or avoid court costs and attorney fees.

“Litigants who know this can use threat of litigation to get the blogger to take down a post or shut down a blog completely,” Cox said. “Educating bloggers about this threat is just as important as educating them about defamation.”

Dutson noted that the financial stability of his family was his biggest concern when he was threatened with the lawsuit.

“As a blogger, when someone threatens to sue you, the fear can definitely have a result of shutting you down,” Dutson said. “It was a big decision not to shut my site down, even though I knew I was right from an ethical standpoint.”

Cox said that his organization has handled more than 300 incidents in which a blogger is threatened with a lawsuit, but that few of these suits are ever actually filed. “It usually doesn’t have to get that far for the blogger to back down,” he said.

Since the majority of bloggers are not writing as a career or for financial income, Cox said that going to court is just not a risk that most bloggers are willing to take.

“They just don’t have the personal or financial motivation to keep the blog up,” Cox said. “This makes bloggers very susceptible to threats. In most of the instances we were involved in, the moment the other side finds out that the blogger has legal representation, we never hear from them again. The vast majority of these threats are inherently frivolous, but they feel they can get away with it.”

Cox said his group is working hard to educate bloggers about both the laws of defamation and the scare tactics used by those who want a blogger to remove posts.

In many states, laws referred to as “anti-SLAPP statutes” (for “strategic lawsuits against public participation”) prevent companies, individuals or the government from using costly lawsuits to punish and silence those who legitimately speak out against their decisions or activities. Therefore, some of the lawsuits threatened against bloggers would likely be dismissed under these types of laws.

However, since according to Cox, most of the threatened lawsuits are never even filed, these laws do little to protect bloggers from the fear of a lawsuit.

Dutson hopes his experience convinces other would-be libel plaintiffs to refrain from going after bloggers.

“Hopefully, some other company saw my story and decided not the make the same move against another blogger,” Dutson said. “The legal system is not to be used as muscle to end a political debate. The more backlash from both the public and the judiciary there is against people who do this, the better.”