Stepping Up

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)