West Virginia Looks To Criminalize Online Harassment

from the don't-be-a-jerk dept

There's been an increasing effort among some to make being a jerk online some sort of criminal activity, even though that almost certainly violates the First Amendment. The latest is an effort in West Virginia to create a new misdemeanor for posting false information about someone online, which could result in fines and jailtime. Now, as you probably already know, we already have laws against defamation -- though that's a civil issue, where the defamed party can take the defamer to court. In this case, the law would do two things: (1) make it a criminal issue, getting the government involved in determining who to prosecute and (2) lower the standard for what breaks the law. Specifically, defamation has required not just the spreading of false information, but that it be done with malicious intent, if you wanted any kind of punitive damages. Yet, this law in West Virginia has no such requirement, meaning that simply spreading false information, even if not for malicious intent, could get you brought up on criminal charges. That seems to go against the First Amendment, but since when has that ever stopped lawmakers from pushing bills?


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  1.  
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    The Visible Dentist, Apr 1st, 2009 @ 12:55pm

    Come and get me coppers

    There's a dual standard within the system; those at the top of the control hierarchy are free to abuse laws with impunity, while you and I get slammed. It's all an illusion. jb

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Apr 1st, 2009 @ 1:29pm

    cut it out with these incorrect statements of law

    common law defamation merely requires that D makes a false statement about P and someone who is neither D nor P hears/reads the statement. P must also prove that either he suffered reputational or actual damage OR that D knew the statement was false or made a reckless disregard for the truth. P must only prove malice if P is a public figure.

    even the ars article links to the relevant case law that debunks half of your editorial commenting: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=418&page=323

     

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  3.  
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    Ryan, Apr 1st, 2009 @ 1:52pm

    Re: cut it out with these incorrect statements of law

    Where is he wrong? Mike said:

    In this case, the law would do two things: (1) make it a criminal issue, getting the government involved in determining who to prosecute and (2) lower the standard for what breaks the law. Specifically, defamation has required not just the spreading of false information, but that it be done with malicious intent, if you wanted any kind of punitive damages. Yet, this law in West Virginia has no such requirement, meaning that simply spreading false information, even if not for malicious intent, could get you brought up on criminal charges.

    Even after reading your comment, his assertions that this changes the matter from civil liability to criminal, and that the standard is lowered still stands. But Mike specifically notes that if you wanted punitive damages, you had to prove that the statement was knowingly false. From the article you linked:

    The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury.

    Nice try, now shut up.

     

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  4.  
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    Mike C., Apr 1st, 2009 @ 2:54pm

    And how long until we see...

    ... the West Virginia court system flooded with cases from around the world merely because the offending page in question was visible on a computer screen in West Virginia. Per the text of the proposal:

    (c) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.
    (* emphasis added)

    Can we say Marshall, Texas everyone???

     

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  5.  
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    Benjamin Wright, Apr 1st, 2009 @ 3:15pm

    institutional liability

    As anti-harassment laws are revised to cover cyberbullying, schools and other institutions face greater potential for lawsuits. --Ben

     

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  6.  
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    TheStupidOne, Apr 1st, 2009 @ 5:28pm

    It is illegal to be wrong

    So apparently in West Virginia it is now illegal to be incorrect about something. Police will be scouring wikipedia, forums, blogs, news articles looking for factual inaccuracies and throwing people in jail for them.

    LOOK OUT FACEBOOK USER ... that mistaken tag on that one photo will get you fined $1,000 and thrown in jail!!!!

     

    reply to this | link to this | view in thread ]

  7.  
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    Mike (profile), Apr 1st, 2009 @ 6:48pm

    Re: Re: cut it out with these incorrect statements of law

    Thanks Ryan. I think you did a pretty good job summarizing it. I'm not sure why the original (anonymous, of course) commenter thought I said something incorrect.

     

    reply to this | link to this | view in thread ]

  8.  
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    Anonymous Coward, Apr 1st, 2009 @ 8:30pm

    Re: Re: Re: cut it out with these incorrect statements of law

    Mike is wrong because the standard is not lowered in any way, shape, or form. I would say that the bill merely criminalizes the existing standard, but if you read through the statute, it requires that you have intent to harass or abuse your victim. By statutory construction, because the statute also requires that the statement is false, the falsity of the statement cannot alone satisfy the harassment/abuse element, or you would be reading out the intent requirement. For the geeks in the crowd, this statutory construction argument is why Cablevision won in their DVR case last October.

    If you're concerned about the remedies/consequences of defamation, Mike's statement is also misleading. Damages in the civil defamation cases are going to be whatever the jury deems reasonable (since actual damages are virtually impossible to put a number on). Even then, there is a lot of recent case law (even in the Supreme Court) that limits tort punitives to a 1:1 ratio with compensatory damages. Thus, punitive damages aren't so much of an issue to some defendants. When you look at legislative histories, you'll see that when civil violations become criminal violations, the problem was that the civil violation was insufficient to curb the problem. This is just a natural evolution of law...

    With people thinking the internet is 100% anonymous, they'll say whatever they want. It's one thing to out a person or company for nefarious activities (like the cash4gold defamation C&Ds), but it's an entirely different thing for people to just make shit up. Jim Kramer in Jon Stewart's interview correctly claimed that short sellers often make shit up because it's so easy to propagate sensational commentary about fanboy companies like Apple.

    This is amplified by the echo chamber of the blogosphere which just repeat things, regardless of their truth (like last week with the DMCA notifications and your local ISP, or a few months ago with NZ's section 92a disconnection policy). The problem with blogging is that when you repeat something without any fact checking whatsoever, and that statement turns out to be false, you probably just commit civil defamation, regardless of whether you knew the statement was false or not. You're only off the hook if the subject of your statement is a public figure.

    In sum, Mike is wrong about "lowering" the standard, and he's misleading about the punitives in defamation.

     

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  9.  
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    Dohn Joe, Apr 1st, 2009 @ 10:36pm

    Might not be that bad

    Does this mean asstroturfers like Microsoft's (http://boycottnovell.com/2007/11/23/astroturfing-microsoft-examples) can go to jail if they do it from Virginia?

     

    reply to this | link to this | view in thread ]


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