An American Court has required Google to disclose the identity of a blogger who allegedly defamed a New York model, Liskula Cohen, so that she could take an action for libel:
Judge Madden rejected the claims by the blogger’s lawyer that the comments were mere opinion or “trash talk”, and that only factual assertions could be considered libellous.
“The thrust of the blog is that the petitioner is a sexually promiscuous woman,” Judge Madden wrote in her judgment, noting that the comments were run alongside photos of Cohen in suggestive poses.
The blog, which was shut down in March, was almost entirely devoted to slagging off Cohen. It contained just five entries, all of which were published on August 21 last year.
It’s interesting to ponder how some of the comments on prominent blogs hosted by mainstream media organisations might fare if this precedent were followed in Australia. We all know what I’m talking about, but for a sample of the sort of bilge that is far too blithely published, see the quotes in Jason Wilson’s piece yesterday at New Matilda.
To some degree, bloggers on MSM sites have a practical, if not legal, immunity because of the deep pockets of their employers. But those who effectively make money for those mastheads, as Wilson argues, by eagerly responding to the elicitation of grossly offensive and personalised comments, might pause and consider whether they’d individually be prepared to defend them in court. I doubt the bloggers who foster attack speech would offer anything other than rhetorical support.
Some comments threads on independent blogs might also be problematic. I can think of some blogs where the comments consist almost entirely of vilification and abuse of individuals.
It’s also well worth noting that misogynistic slurs were the basis for this court decision.
Elsewhere: Mashable.
Update: Bronwen Clune.
Update: Legal Eagle.
Update: Kate Harding at The Guardian’s Comment is Free.
It’s an ill wind and all that: Perhaps it was this story that prompted a different jason to write
In an 08 Press Council news article, ‘Developments in the defence of fair comment’ http://www.presscouncil.org.au/pcsite/apcnews/feb08/manock.html, it’s noted
So if one intends to rely on claiming ‘fair comment’ should an issue arise, one should prudently include Teh Facts, or at least working hyperlinks, (or url when linking is not possible), to them
Interesting topic Mark. I used to run a “guy in his pyjamas” blog that had a modest following back around 2002-2004 before turning it in after getting a journo job at The West Australian. Having done a few different reporting roles, I’ve now come full circle and am responsible for blogs, opinions and reader interactions on our newly relaunched thewest.com.au.
We’ve taken a concious decision not to premoderate comments on our blogs section, and have done so fully aware of the risks and obligations this entails. My view is that to avoid the sort of legal issues you’ve raised in this post (plus the more general issue of editorial standards) that we, as “The West” bloggers, have to take an active role in the comments ourselves and encourage a certain style of interaction and dialogue that is characterised by genuine exchange and respect.
I set out my thoughts on this in my first post for the new site, and while it’s still very early days, so far the response has been great. We have the capacity to delete any comment at any time, but so far it’s been necessary to delete only one of a the couple of hundred comments that have been posted in the site’s first five days of operation (and that was due to a borderline offensive/punning user name of the sort Bart Simpson would ring up Moe’s Tavern with).
I think it’s a bit analogous to graffiti vandalism, who seek out the dark corners where no one is watching. If an area is “well lit” and obviously populated there is far less opportunity for abuse.
The other factor in play for us is the fact that users are required to sign up for a Yahoo!7 account before they can comment (as a result of our decision to enter into a co-branding partnership). While some level of anonymity can be achieved, there is nonetheless the sense that comments can in some way be tracked. The other factor is that the sheer process of creating a Y!7 account will deter people from commenting, which is both good (deters passing troublemakers) and bad (deters people who genuinely want to contribute but for whatever reason don’t want to sign up).
It’s interesting you perceive that MSM bloggers have a practical immunity due to deep pockets of owners; I’d have thought the opposite is true for precisely the same reason: deep pockets make an attractive target for litigants (as opposed to the guy in his pyjamas) and real jobs are on the line if serious misjudgements are made.
The problem is Gareth all those dickheads lurking behind blatantly false net de plumes who say things like Tony Abbott fucks mountain goats and then stiffs ‘em for child support.
Sadly LP is not immune to this kinda egregious behavior.
However some questions about the footloose origins and future of certain Roman Catholic Oreamnos Americanus kids do remain unanswered.
@2 –
All the research (and experience) shows that’s key, Gareth. But you still need a finger on the delete button! And Nabs is right – there’s a difference between a self-regulating blog community which will ignore or sanction an offensive post, and the propensity of some total idiots to make such comments anyway – so, from my point of view, it would be helpful if some of the trolls of the world realised their speech might have consequences for them.
Gareth, I once took some legal advice on whether I’d been defamed by Andrew Bolt in a post which made an attack on my professional competence based on nothing but supposition, and in complete ignorance. The advice was that it was actionable, but I’d need tens of thousands of dollars spare to take an action, given that it would be fought by his employer.
I should add that I’m very surprised that Bolt’s employers allow comments which are very close to being threats of physical violence to be published (cf. Wilson’s excerpts). I’ve been on the receiving end of more egregious examples of this phenomenon twice, and the advice in that instance was that a federal offence had been committed. I was also told the Federal Police take such things seriously. But, for a number of reasons, I decided not to make a complaint.
To get some perspective on the issues raised by Gareth #2 and Mark #6, it could be instructive to compare the sums of money involved in contesting and settling a libel suit with the annual budgets of News or Fairfax.
Skepticlawyer offers a Defamation for Dummies guide in April that made it quite clear that bloggers were as behoven as the MSM to work within defamation laws or risk legal pursuit.
The addition of Google Adsense to the dashboard of Blogger in March raised a similiar set of issues. But given that commercial interests are more likely to respond to perceived attacks upon their brands with their bristling brigades of lawyers, the potential for passive self-censoring is much more problematic than the wingnuts out there who are keen to suggest interesting sexu%l habits of the mighty who walk amongst us. As Mark noted, the cost of pursuit does much to temper one’s indignation.
Comments can be moderated – failure to remove libellous material is clearly a breach. The blogsphere has not been granted immunity from the same laws that apply elsewhere. Post with care. And the occasional use of facts would be nice too.
Skepticlaywer link: http://skepticlawyer.com.au/2009/04/defamation-for-dummies/
Google adsense: http://viminalis.blogspot.com/2009/03/monetize-adsense-when-not-doing-evil.html
The html illiterate amongst us love nice little icons to facilitate easy linking etc…
My personal experience is that online defamation is the least of the worries a blogger faces. There are no effective legal remedies for the damage that unhinged people can cause others in our contemporary society if they are prepared to make the effort – all under a cloak of absolute anonymity. In my ‘Road to Surfdom’ days I used to get three or four anonymous calls to my work phone every week, for months on end, and that was the least malicious of the things that happened.
The news that the proper functioning of a free society depends on voluntary adherence by citizens to civil codes of behaviour, and cannot be enforced by the state, should not come as any surprise to anyone who has read history. Nor is there any reason to believe countries like ours will stick to those codes of behaviour indefinitely. They are already severely degraded in the USA.
@11 – Ken, but surely the import of this decision, if it were followed in Australia, is that anonymity doesn’t protect people from potential liability for their actions. It’s not at all difficult for anyone competent to trace who is sending them abusive emails, or making abusive or threating comments, and even if they’re a bit cleverer in masking their identity than the run of the mill troll, isps could be required to disclose the individual’s identity.
Sorry Mark I may not have made myself clear. I meant that if someone takes exception to what you write online, it is very easy for them to cause you harm offline while preserving their anonymity, or at least that was my experience.
Ken – I don’t think it’s as easy as they might like to think if you want to take steps to address it – cf. my previous comments.
Defo in Oz has longer tentacles than in the US, and if you want an indicator of how the Courts privilege such matters look at the Gutnick case.
Publishers have always been responsible in our system, to a ridiculous extent. Those of us who publish a blog effectively publish the comments on it as well.
Generally if you follow the flame rule (delete flaming, and similar libellous aggression off your threads at the first opportunity) you are likely to be ok in most instances.
Yes, defo is a crock as presently constituted. In critical jurisprudence it’s recognised as one of those areas that evolved with a significant hat tip to the interests of the people making the decisions and their mates. It’s no accident that in defo, landlords and land law, insurance and trusts, sometimes inexplicable lines of reasoning developed that happened to side with the interests of the wealthy and powerful.
Now most lawyers recognise that it needs more reform, but it’s the pollies who consider defo their plaything who are too stubborn to completely rewrite it.
Anyway, the US site sounds like it was set up solely to run nasty libel against the plaintiff, so I can’t say I have much sympathy for them being outed. Each case on its merits…
And nor should it.
Whether the defamation laws themselves are well founded is a perrenial debate.
but putting that issue aside I can’t see the slightest reason for suggesting that internet anonymity should offer any kind of pretection or defence.
Organisations practise risk management. The risk of ignoring an anonymous complaint about an employee that later turns out to be true are balanced against the risk of investigating an anonymous complaint that turns out not be be proven (but can never by its nature be conclusively proven wrong). Usually, management elects to take the risk that they might be singling an employee out with unfair consequences. The police take a similar approach to anonymous complaints against citizens.
Nothing can be done to remedy the rumours, gossip and general loss of reputation that inevitably ensue.
I see the contexts as separable. Bolt is just a vituperative shock jock and he, his employer and those who post to his blog ought be treated with the same strictures and force of the defamation law as say Alan Jones et al. Indeed, blogging presents similar problems to live radio in that unlike newspaper or magazine content there is no room for inhouse media law advisers to vet the copy first.
The position is quite different with amateur blogging, which is so much more evananescent. The cost of tracing and chasing someone who is unlikely to be worth suing (and definitely uninsured) would rarely be worth the risk. Unless perhaps their blog had thousands of readers. But even then, why draw attention and infamy to the blog and its allegations? The real effect of litigation like this and its reporting will be to chill reflective bloggers, but the nutters will keep nutting regardless.
Australian-based geek news website, ZGeek.com, encountered this problem recently. A story was submitted about someone making a movie about some 9/11 conspiracy. The critics emerged, and the movie-maker claimed the deal fell thru, and blamed his ZGeek critics. ZGeek gets sued for huge money.
Apparently, a site-owner in Aust is responsible for everything on the forum-site, even if said by third parties. Probably because the idea of ‘publishers’ in legal terms is hung over from those days when a publisher was someone who employed hundreds of editors. Our legislation is lagging the real world, it seems.
Yep, Aurelius, the law really does lag behind technology in all this stuff, I think.
I’d also point out the example of Anonymous Lefty being outed a couple of years back and all the suggestions that went around that people might want to ring up his employers to let them know what he wrote on his off time. I know back on a now defunct forum my criticism of the Coalition was cut back when I got a very polite private email detailing what this other poster knew about me and what fun could be had hypothically.
Still has an effect. If I’m going to criticise the right now I think twice and more often than not I decide not to post. If it were just me I’d be more devil may care but with a family to support…a chilling effect indeed.
Legal action never entered my mind though. I have no doubtd these new developments will do little or nothing to stop the worst posting by extreme left or right wing trolls. (Or even non political trollers such as the case now presented.)
I gather another problem is that ‘risky’ comments remain available on-line for many years and increases the opportunity of discovery.
I assume defamation statute limitations apply to these as well? 12 months, 3 years, 6 years depending on where you are?
Update: Bronwen Clune.
Is the only solution to be immune to legal action, such as to not own any assets? Fortunately for one with a big mouth and strong opinions, I fall into such a category but I imagine many others do not.
I actually think this is a positive development.
Freedom of speech is not infringed by accountability for said speech.
“Is the only solution to be immune to legal action, such as to not own any assets?”
There’s always the workhouse for the impecunious.
Update: Legal Eagle.
Update: Kate Harding at The Guardian’s Comment is Free.
^ Link problem?
>>> Error 404 – Not Found Oh no! You’re looking for something which just isn’t here!
Mercurius @ 25, totally agree. Freedom of speech comes with a range of responsibilities. Also some trolls and shouters don’t realise that freedom of speech also means that the audience might decide to debate your point of view. Or applaud it. Or ignore it.
In a way the Town Hell meetings are almost like a physical personification of the worst aspects of internet debating gone wrong right down to the invocation of Godwin.
It’s funny, but I thought the big deal in this case was “40-something” rather than “skank”. Surely as a model a false rumour that you are over the hill is going to be more damaging than someone just calling you names.
Somebody’s birthday approaching, is it?
I really don’t understand why no one has taken advantage of the uniform changes to the Crimes Act signed off by all States in 2004. Example: take a look at S.529 of the NSW Crimes Act. It says that the publication of material with the intent to injure another person – or with reckless disregard to its effect – constitutes teh offence of Criminal Defamation, and carries a penalty of 3 yrs imprisonment. The defense of ‘innocent publication’ has been removed, and ‘public interest’ is irrelevant if the intent is to injure. Accordingly, the editors of any website, newspaper or TV publisher who is placed on notice that information is untrue or designed to injure another person, is guilty of a criminal offence. Police MUST accept a complaint and give it a report number – whether they do anything about it or not is another story.