Stepping Up

Tuesday, December 06, 2005
Much of the blogosphere’s appeal derives from the real-time dialogue made possible by reader comments. Many bloggers, however, do not allow comments because they fear exposure to lawsuits. For example, one of blogging’s leading lights, law professor Hugh Hewitt, sees comment sections as “defamation/copyright time bombs waiting to go off,” with site operators as likely litigation targets. Hewitt even worries that ‘dirty tricksters’ might post defamatory or copyrighted material via blog comments in order to burden targeted blogs with crippling lawsuits. See Hewitt Quote

Arguably, bloggers are protected from liability for comments posted on their sites under the Communications Decency Act (47 U.S.C. § 230), which confers immunity on an Internet “provider” or “user” that republishes statements made by third parties. Last year, though, a California Court of Appeal held otherwise in the closely related area of usenets. According to the court, section 230 does not immunize the publisher of a usenet from liability for reposting, and failing to remove, a third-party’s defamatory statements about another individual; rather, because the publisher had notice that the material may be defamatory, the Court found she was just as liable as if she had written or published the material herself. The California Supreme Court, in BARRETT v. ROSENTHAL, Case No.S122953, has now decided to review that decision and determine for itself whether section 230 bars liability “where the provider or user knows or has reason to know of the defamatory character of a statement it republished on the Internet.” It seems likely that the state supreme court’s decision will apply equally to blogs.

The potential impact of the case has drawn widespread attention. For example, the Electronic Freedom Foundation (EFF), a non-profit group focused on defending free speech, privacy, innovation, and online consumer rights, has submitted an amicus brief urging the Court to interpret the statute as providing blanket immunity for bloggers in order to avoid chilling blog speech. (See here, for example, at pp 19-20: EFF Amicus Brief)

To many fans of the blogosphere – especially those who view it as an important and essential antidote to the failings of legacy media – EFF’s position may seem obviously correct. Yet there are reasons why a more cautious approach may be better.

For example, granting blanket immunity even when a blogger knows or has reason to know that the comments are defamatory ignores the fact that defamation and copyright infringement can be serious issues with pernicious and even devastating consequences for the affected individual. In the Barrett case, for example, two physicians were publicly accused of “stalking” and participating in a “criminal conspiracy” in more than 200 messages to various newsgroups posted by the director of a center for alternative medicine. In such circumstances, a reputation built over a lifetime may disappear overnight.

Moreover, advocating blanket immunity in those circumstances may have the unintended effect of marking the blogosphere and its exponents as fundamentally un-serious, thereby diminishing the credibility and heft of blogs relative to other media. Some proponents of blanket immunity tacitly acknowledge this problem, and seem content to present it as a feature, not a bug. For example, in its amicus, the EFF takes the position that blogs and their comments should be immune from legal liability because everything written on a blog should be taken with a large pinch of salt. See here, for example, at pp 19-20: EFF Amicus Brief. And, as recent coverage of the Wikipedia issue has made clear, the ‘inherent unreliability’ of the blogosphere is one meme that the mainstream media is more than happy to run with. See Wikipedia article.

In this case, then, advocating an absolutist approach to the issue of blog immunity – albeit with the admirable aims of promoting free speech and further democratizing the marketplace of ideas – is likely to produce a short-term tactical victory at the cost of a long-term strategic one.

Law cannot solve all such problems, of course, and a single court decision interpreting a statute arguably enacted to address a different set of issues cannot resolve these important conflicting policies. But between absolute immunity and common law liability there may be an opportunity to mitigate some of the harms of extreme positions with a more carefully calibrated approach – at least for those online “publishers,” such as bloggers, who have the capacity to edit the comments on their sites. For example, Congress could amend the law to require that bloggers earn immunity from liability by posting clear disclaimers distancing themselves from the content of comments posted on their sites (or, if the Court finds the statute does not apply to usenets and blogs, it could change the common law rules to impose such a requirement). While far from perfect, such a disclaimer may limit the damage because the impact of a defamatory comment depends a great deal on the gravitas of its source. Being accused of criminal malpractice by an anonymous commenter on a site that expressly disavows responsibility for the content of its comments may reduce the damaging impact of a comment that otherwise seems to be endorsed by the site.

Many citizens of the blogosphere prefer not to refer to the “mainstream media” as such, because, they believe, old media does not deserve to monopolize (or even hold) the rank of “mainstream.” But if that is so, we must increasingly ask whether the blogosphere is ready to assume a more mainstream role? To be taken seriously by others, the blogosphere ought to consider taking itself seriously enough to develop, and express, habits of thought and standards of practice that harmonize the competing interests of free speech and freedom from defamation. Further, if it is true that law can provide only partial solutions, greater reliance on social norms and self-policing may be required.

(To keep an eye on the Barrett case, see here: Barrett Case)


Doug said...

"Many citizens of the blogosphere prefer not to refer to the “mainstream media” as such, because, they believe, old media does not deserve to monopolize (or even hold) the rank of “mainstream.” But if that is so, we must increasingly ask whether the blogosphere is ready to assume a more mainstream role?"
There is the problem of Recognition of REALITY with this idea:
Whether they deserve it or not, and whether they are losing it rapidly or not, the MSM have, and presently are still the mainstream in terms of number of people exposed to their propaganda.
Spineless politicians in DC still jump through hoops for these folks, and TV, that mainline to the masses, still gets it's cues from NY Times, WaPo, and etc.
No single blogger could inflict this much damage on our country w/o being thoroughly dismembered by other bloggers, and in turn then being piled upon by the MSM.
The MSM still get away with it!
(kinda, sorta)


Media bias just might turn the future of Iraq into a disaster that will reverberate for decades. Last week, The Washington Post interviewed Sunni-insurgent sympathizers. They said they "loved" media-creation Cindy Sheehan and took heart from reports of the anti-war movement in Washington.

There you have it, from the camel's mouth.

Actions have consequences. Today's journalists refuse to accept that the rule applies to them. The wages of irresponsible journalism are death — for others.

Expose a crucial clandestine operation,
shatter a policy or wreck a struggling state,
and you get a Pulitzer Prize.
The motto of journalists today is "Nothing's ever our fault."

The republic suffers.

Dana Priest, a journalist with much fine work to her credit, recently broke the story of secret CIA arrangements to hold captured terrorists in Eastern Europe. For the sake of a headline, the paper did severe harm to our counter-terror efforts and our diplomatic relations.

The editors would insist that "the public has a right to know." That tired mantra needs scrutiny: It would have justified revealing secrets such as Ultra, the Manhattan Project or the timing of D-Day in the Second World War.

Would "journalistic integrity" have justified aiding Hitler)?

Another Washington Post reporter, Anthony Shadid, published a long string of soft-on-the-insurgents columns. An Arabic-speaker with family roots in the Middle East, Shadid was apparently such a vital asset to the paper that his work never got the scrubbing it deserved.

This year, Shadid published a book, "Night Draws Near: Iraq's People in the Shadow of America's War." Turn to the index. In 424 pages that pretend to describe the suffering of "Iraq's people" under American occupation, there are only nine entries under "Kurds" — when Kurds are about a fifth of the population. Kurdish success and pro-Americanism would have been inconvenient.
Back to the topic: The point is that blogging is presently alsready self-policing, in that bloggers that practice responsible posting gain reputations as such, and those that don't also become know for who they are.
The MSM and lying politicians still get a pass, but it is a short-lived pass.

Truth shall out.
(unless "Justice" intrudes to prevent it.)

Doug said...

"the MSM have BEEN, and presently are still the mainstream"

Doug said...

Sorry, thought I posted the Peter's piece elsewhere, rather than a previous post here. any rate it does show the malignant power the MSM and it's "Priests" still wield.

David Thomson said...

There is little doubt but that the leftist establishment will try to attack us with frivolous law suits. They realize that even if the legal case ultimately fails---the resulting financial devastation to the targeted blogger can be enough to intimidate the overall community. We are a never-ending thorn in their side. The enemies of Western Civilization have lost numerous battles because of us. These are unprincipled individuals who will stop at virtually nothing to achieve their nefarious aims. We indeed do live in very dangerous times. Glenn Reynolds and other legal specialists need to step up to the plate and offer some guidance.

Eric Blair said...

The Genie is out of the bottle. It's not going to be put back in.

While some may disable comments (one can only imagine what say, Hewitts comments would look like if he had them), others will enable because they want the dialogue.

I don't see any sort of lawsuit changing that.

Rick Ballard said...

Justice bears a two edged sword. Should libel, slander or defamation suits be attempted against one side, rest assured that they will be attempted against the other.

Koslandians and Dummies United have more to fear from suits than anyone on the right.

There is also the excellent point that, if you wnat to be taken seeriously, act seriously. That can be fully applied to the legacy media as well as to any blog. Legacy media is moving toward the stasisi of the crypt at least in part because an ever growing number of people simply don't trust it. Part of the reason for the lack of trust is the obvious slant of every political story and part is the rank sedition practiced every day.

We are fortunate not to have libel laws such as those that exist in the UK and Canada. They really do stifle free speech to a degree that I find disconcerting.

Julian Biggs said...

Rick - the commitment to free speech in the US is truly a wonder: something that immigrants to these shores, such as yours truly, can take a surprisingly long time to fully comprehend.

But note that courts in Canada and Australia, for example, have held that material uploaded in the US is 'published' whereever it is read and thus may be subject to non-US libel laws too.

who, me? said...

It seems to me a matter of proportional responsibility, with technical solutions. A blogger can monitor comments on his site, and probably has the responsibility to do so, removing or questioning those that might be defamatory.

If comments become so voluminous a blogger can't manage them, then the scale is such it needs to tap its market for means to hire a monitor.

Barry Dauphin said...

From what little I know, it sounds as if the disclaimer route should hold some promise. Surely, there are cases of presumed libel, for example, that are anything but clear. Putting the blogger in the position of serving in the role of a judge in a libel case with every comment that comes in seems unrealistic and unnecessary. It also sounds as if there should be some action taken by the hypothetically injured party first before suing, such as saying that some comment is defamatory and asking that it be taken down.

Buddy Larsen said...

Excellent, excellent report, Julian.

Morgan said...

I'd like to float the idea that this is a freedom of assembly issue.

Blog comment sections serve as a place for like minded people to meet and exchange ideas. Force bloggers to monitor all comments and you drive up the cost to the blogger of having comments, resulting in no comments or a situation in which people need to pay for the privilege of commenting. It amounts to a punitive tax on assembly, imposed simply because someone might say something defamatory within the meeting.

Does it make a difference whether the minutes of that meeting are public?

Knucklehead said...


Excellent article and thank you for putting it up.

An attempt by the MSM and/or its political allies among the Left, to shut down blogs through libel or slander suits would, perhaps, yield some early "successes". Those would prove, ultimately, to be Pyrrhic. Blogs as a source of info to the general public, despite the explosive proliferation of blogs, is IMO growing only slowly.

Were the MSM or the Leftists to incite a general unification among bloggers to fight against them and, more importantly and detrimentally to the effort to silence blogs, call widespread attention to them, the impact of the "blogosphere" would increase rather than decrease.

A portion of the population doesn't even realize we are here. Another portion believes we are little more than loons. A huge catfight with the blogosphere would create publicity the MSM can't afford.

Julian Biggs said...

One important aspect here is the asymmetry: for example, the left side of the blogosphere is much less interested in challenging the MSM and so is likely to be less interested in maintaining or developing gravitas for the blogosphere in general.

Morgan: bear in mind that a comment can be defamatory even if made only to one other person.

Doug said...

who, me,
Long ago (in internet time) the state of the law was that if you did *not* moniter, you were not liable.
Julian's example differs in that the site was notified, and the offenses were multiple.
Requiring monitering would destroy comments.

steven edward streight said...

How is a blog different, new, unique?

The blog is the Universalization of Web Content.

The blog is the First System in History that allows anyone to publish material for the whole world to see...instantly and easily, at little to no cost.

But more: the blog represents an interactive, two-way conversation platform.

Without comments enabled, a blog is just another crappy preachy pulpit, a "shut up and passively absorb my genius message" platform.

Individuals are tired of preaching by governments, business, religions.

Even church is being transformed into more interactive, non-hierarchical entities.

Hierarchy is for slaves and mind control freaks.

The Morbid Stream Media is losing their information hegemony and their ad revenues.

But it is comments, the interactive nature of blogs, that makes the blogosphere so grand.

Lawsuits? With all due respect to Hugh, I disagree. Sure, we may be sued, but so what?

All pioneers must suffer setbacks and obstacles. We press on, oblivious to threats and fears.

Be brave, smart, and ethical.

Blog on sisters, blog on.

steven edward streight said...

P.S. I hate to double post, but look at Blogger.

This is a Blogger blog. You are not using Word Verification captchas, nor are you using Comment Moderation.

Once you get, God forbid, hit with a comment spam storm, like I have repeatedly, you'll wise up and use both.

No offense meant, friend. But captchas and moderation/delayed comment posting is key to a clean blog.

Be sure to have Blogger email you notification of new comments in your inbox.

And ALL these OT, abuse, and spam comment controls are FREE from Blogger.

I love Blogger.

Julian Biggs said...

Thanks for your input, steven