Libel suits, blogs, and comments
At the workshop I led on Saturday (about journalist blogs), someone raised a question about libel while we were discussing non-editing of blogs. I did a few searches and found some interesting information.
According to the Citizen Media Law Project, at the Berkman Center for Internet & Society, the blogger cannot be held responsible for comments posted to his or her blog. Cited was Section 230 of the U.S. Communications Decency Act.
The Electronic Frontier Foundation has a good FAQ about Online Defamation Law.
One of our grad students has done some research about related cases (not published yet, so I don’t want to give away his case law), and so far the courts have acted wisely, showing a clear understanding that some libel suits are filed with the sole intention of silencing the speaker (chilling free speech). When the posted comment has been deemed by the courts to be purely an opinion rather than a statement of fact, in more than one case, the court has dismissed the lawsuit.
The Media Law Resource Center has a page that lists “legal cases in the United States in which bloggers have been sued for libel and related claims.” I searched for the word newspaper and could not find a case in which any blog affiliated with a newspaper has been named in a libel suit.
One part of the concern is whether a blogger will receive the same protections as a journalist if named in a libel suit.
Another concern is whether a journalist-blogger — specifically, a full-time paid journalist blogging for the news organization that pays him or her — will one day be named in a legitimate libel suit.
The news organization represents a fatter cow for the plaintiff to try to slaughter. The lonely blogger probably doesn’t have a lot of cash to pay out, if he or she loses the legal battle. But some libel suits are actually about reputation rather than money. And as I already said, some libel suits are just trying to shut someone up — such as a whistle-blower.
Under U.S. law, truth is an absolute defense. That is, if you can prove that what you wrote is true, you are not at fault. However, as the EFF guide says, “the truth may be difficult and expensive to prove.”
Moreover, many other countries’ laws do not afford the same protection — to journalists or to anyone else.
Disclaimer: Obviously I am not a lawyer, so do not take this as legal advice!
“Under U.S. law, truth is an absolute defense. That is, if you can prove that what you wrote is true, you are not at fault. However, as the EFF guide says, ‘the truth may be difficult and expensive to prove.’”
If I remember my Media Law class with relative accuracy, it’s easier than that.
Generally speaking, the plaintiff in a libel case must prove that the, shall we say, blogger, acted with actual malice, meaning that he or she knowingly published something false or with a reckless disregard for whether it was true or false.
The chain of cases that decide when this is a good enough standard starts with NYT v. Sullivan in 1964: http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
December 3, 2007 at 11:24 pm“Actual malice” applies only if the plaintiff is a public figure. Either way, it has to be actually false. NYT v. Sullivan involves public figures.
December 3, 2007 at 11:51 pmIn America, you have better defences for journalists and bloggers in terms of defamation. In the UK the law is quite harsh on journalists and bloggers. We walk a tight rope.
December 4, 2007 at 9:11 amYou can find additional case law addressing:
Blogs
http://www.internetlibrary.com/internetlib_subject.cfm?TopicID=80
Online Defamation/Communications Decency Act
http://www.internetlibrary.com/internetlib_subject.cfm?TopicID=71
Complaint and Gripe Sites
http://www.internetlibrary.com/internetlib_subject.cfm?TopicID=13
SLAPP (Strategic Lawsuits Against Public Participation) Suits
http://www.internetlibrary.com/internetlib_subject.cfm?TopicID=67
Subpoenas
http://www.internetlibrary.com/internetlib_subject.cfm?TopicID=47
at the provided links to my website, the Internet Library of Law and Court Decisions.
Martin Samson
December 20, 2007 at 7:08 pmThanks, Martin. Those look very useful.
December 21, 2007 at 8:01 amHappy to help.
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