When Anyone Can Be A Publisher, Defamation And Free Speech Issues Get Trickier

from the old-rules-may-not-apply dept

We've been seeing all sorts of lawsuits lately that show how the rise of technologies like the internet have really caused troubles. Most of these laws were written in a time when it was impossible to imagine a day when anyone and everyone could be their own instant publisher. Take, for example, a divorce case that is suddenly getting a lot of attention, due to legal questions drawn out by the husband's decision to publish a "fictional" account of his marriage on his blog. The wife asked the divorce court to issue an injunction, which it did, claiming that the site is harassment. However, the husband is fighting it, refusing to take down the content, noting that it's a violation of his free speech rights, especially since the order bars him from posting anything at all about his wife. There are a number of complications on top of that. First of all, there's the question of whether or not you can use an injunction to stop speech, even if it's defamatory. Then there's the question of whether or not the speech really is defamatory (made even more confusing by the guy's claim that the story is fictional). We're going to be seeing more and more of these cases, as it's going to take quite some time before people realize that the internet changes the way many people will think about certain types of laws.
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Filed Under: blogs, defamation, first amendment, freedom of speech, prior restraint


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  • identicon
    Iron Chef, 10 Jan 2008 @ 11:13pm

    See the best thing about what Mike created here is that there's a group of people who are unbound by any kind of terms or conditions while posting at TechDirt. That's awesome. People can post what they want whenever, wherever.

    How many other places do you have to go that require you to post under certain terms and conditions? How many other places do you get real, honest feedback? Apparently few.

    As Jack Welsh once said, "Formality slows a company down. It’s ridiculous. People acting rather than giving us their true character and feelings. People having meetings before the meetings, before the meetings to present things. All that nonsense. People should be able to be themselves. I’m back to that word, authenticity. Authenticity and informality go together."

    I watch CNBC. I adore Jack Welsh. I Post on TechDirt.

    http://www.cnbc.com/id/21225564/site/14081545/page/2/

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

    • identicon
      dorpus, 11 Jan 2008 @ 7:36am

      Re:

      See the best thing about what Mike created here is that there's a group of people who are unbound by any kind of terms or conditions while posting at TechDirt. That's awesome. People can post what they want whenever, wherever.

      Techdirt deletes plenty of comments it doesn't like.

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

      • identicon
        Iron Chef, 13 Jan 2008 @ 2:11am

        Re: Re:

        Techdirt deletes plenty of comments it doesn't like.

        Really Dorpus? I wish I could get a few of my comments wiped off of TD, but no response. As a result, I've learned to live with the footprints in the sand I left.

        Hopefully the bigger waves will rinse them away.

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

  • identicon
    SteveD, 11 Jan 2008 @ 1:11am

    Do people want to change because of the net?

    "...as it's going to take quite some time before people realize that the internet changes the way many people will think about certain types of laws."

    I agree, but do you think it likely? There’s no doubt that the net has changed a lot of things (ie, Copyright, Facebook), but it hasn't yet been reflected in the mainstream values of society. Instead I think we've produced a huge amount of reactionism, with companies seeking increasingly draconian laws to protect their interests and lawmakers brining in increasingly strict data-protection laws to protect 'identity' in a society with a rising paranoia in part fuelled by the media.

    Even if there’s an argument for change, I've yet to find a politician that progressive.

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

  • identicon
    Darren Falkingham, 11 Jan 2008 @ 1:48am

    This isn't so clear in the UK/EU

    Hi,

    I'm posting to expand upon Iron Chef's comment - because freedom of speech on forums is a very interesting area here in the UK.

    I'm chairman of a site called UK Business Forums, and the freedom of speech issue crops up time and time again when our members discuss their experiences of certain companies.

    There's an aspect of the EU eCommerce Directive that defines primary and secondary publishers of information - in simple terms, if you publish a forum over which you have editorial control (ie, you have moderators or the ability to remove spam), then you can be held liable for the comments that your members' make, as a secondary publisher.

    As a result I've been subject to a fair few heated discussions with companies who are unhappy with what our members have posted, in particular "potentially" defamatory or libellous content.

    I'd be interested to know if the rules are different in the US? This is a real talking point and I would welcome more discussion.

    Regards,
    Darren

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

  • identicon
    Woody Woodpecker, 11 Jan 2008 @ 2:29am

    I love the way the man says its fictional. He should be in the clear.

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

  • identicon
    The Gripemaster, 11 Jan 2008 @ 4:46am

    It's hard to stay squeaky clean

    Ah... a subject that very much concerns me. As it happens I run an online publication called The Weekly Gripe whereby readers may submit stories and have a good rant about whatever they want and others can leave comments - kind of like a blog, but not quite.

    All was well for quite a long time until it became quite popular. In the early days I was much less careful about the material I published, but after a flood of threats of legal action I soon learned how to walk the tightrope so to speak.

    You have to be very careful these days, particularly with small companies and individuals. The best advice is really to steer clear of any form of naming and shaming because it inevitably leads to a nasty email with a threat. Even visitor comments have to be monitored closely as they are just as likely to get you into hot water. Google sees all and an offhand remark can soon be featured at the top of the search results instead of a company website.

    Is it voluntary censorship? I think so, but I also think that with the power to publish comes a certain responsibility. I'm slowly learning what I can get away with and what I can't. Allowing people to "get it off their chest" and making sure not too many people are offended is a real balancing act.

    Actually, what annoys me the most is the way some people complain about content on a website. The opening email tends to start with a threat of solicitors and legal action. If only they realised that a polite "please can you remove this" would be much more effective.

    Thanks for listening!

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

  • identicon
    Alfred E. Neuman, 11 Jan 2008 @ 5:23am

    Fictional

    Did he use her real name in the blog? I got the impression that he did.

    If it were fictional, I think that a fictional name would be used.

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

    • identicon
      Paul`, 11 Jan 2008 @ 8:43am

      Re: Fictional

      Not necessarily, he could use everything the same and change events and that would be a fictional story about a real person, which is still fiction.

      Ad in one of those "All likeness to any real person, place or event is completely coincidental" disclaimers at the beginning like you see on the publisher page of a book and he should be covered, right?

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

  • identicon
    Jim Durbin, 11 Jan 2008 @ 7:14am

    Libel laws and Free Speech

    My company and reputation live and die on the internet, so the problems of free speech, censorship, and libel are big ones.

    I've twice received "warnings" in just the last month with threats of libel lawsuits for remarks that would be very difficult to be construed as libelous - but that's not the point of the warnings.

    As a citizen, I can say much of what I want and be protected. My political blog is pretty open and honest. My business blogs, on the other hand, are fair game. Lawyers seeking to make problems can tie me up in litigation, and as a business owner, I have to decide when to fight and when to acquiesce.

    To complicate matters, my personal blog is on the same Typepad account as the business blogs - which makes everything I write suspect in a court.

    Some would say the answer is never to write anything objectionable. For clients, I tell them never to address sex, politics or religion, and to focus on the industry, and not on the people involved.

    That's a good rule, but what do you do when you're reporting on the quality of a service or a product? Add to it the danger of being held liable for commenters (and since we delete comment spam, that could be construed as making us publishers,and thus liable for all comments).

    There's a reason lawyers and academics do a lot of blogging. Less fear of being sued. For businesses, the danger is real, and holds each of us back from sharing honest information. Some see that as a good, others a bad.

    My biggest fear, is not that I am in the wrong, but that a judge or jury may not understand the internet, and based on an old law or a bad application, rule against me in a case because of a clever lawyer.

    A big issue for everyone - one not fully explored, and not getting enough attention.

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

    • identicon
      Iron Chef, 13 Jan 2008 @ 3:35am

      Re: Libel laws and Free Speech

      I've twice received "warnings" in just the last month with threats of libel lawsuits for remarks that would be very difficult to be construed as libelous - but that's not the point of the warnings.

      Ah. Maybe that's why I've also recieved happy "Your Comment will be reviewed by our staff" memos over the past few days too.

      There's a reason lawyers and academics do a lot of blogging. Less fear of being sued. For businesses, the danger is real, and holds each of us back from sharing honest information. Some see that as a good, others a bad.


      I've always been one to observe the message in it's context, without fancy geolocation information or other data. Almost always, I've always found this information to really mess up the community..

      Problem is once you start actively collecting this data, it can be requested by others. People will kindly start to withold their viewpoints with the community as a whole.

      In essence, it becomes formal, and against that which the Greatest leader since the Pharos, Jack Welsh, believed in.

      Two traits needed: Informality and Candor...

      As a result, the community stops sharing, and Netcraft rankings go down because people don't want to.. er share... And then the ad revenue goes down too. Maybe you've seen this before.

      So my suggestion is to pledge to the community that this data won't be collected. If there's no data to be shared, there's nothing to fight about. This in turn increases viewership on the auspice of the publisher. Said publisher presents a group of people with candor based on informality which increases viewership. (Ah... Jack Welsh Mentality!)

      There's always going to be bad apples. You can't please everyone all the time. If they don't like the content, as a publisher, tell them to go away... as they weren't forced under duress to read the content. They came here on their free will. Suggest going to Disney.com or some other happy place.

      Mike and Team need to know this, and hold the line if TD is ever going to become a website to break into the top 500 websites according to NetCraft.

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

  • identicon
    Space, 14 Jan 2008 @ 5:58am

    Em, wait a minute ...

    In the blog he claims that it's fiction one moment , and afew lines later says its auto-biographical. I'm thinking that it can't be both now, can it?

    Honestly, I've seen better postings on a high school BBS. He has limited wirting skills, and even less talent. This is a yawner - guy getting his butt handed to him in a divorce who decides to toss a tantrum. Plenty of those out ther eon the net. " Nothing to see here... move on " ...

    heh

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

  • identicon
    Iron Chef, 14 Jan 2008 @ 6:44pm

    Ture, true.

    But all too often the idea of a community which creates a "sounding board" for new ideas... I see TechDirt as a public "think tank", like RAND... The problem is when visitors take said information and translate it as another company strategy.

    So suddenly may percieve these ideas as a threat... That someone is already executing on the raw, un-developed ideas and think they are behind the 8-ball... When in reality, it's just a raw, undeveloped idea, thrown out there for someone with resources to make it happen.

    This is the magic of TechDirt. By taking an external-in approach to understand one of Jack Welsh's questions of "If someone wanted to break into your business space using new technology, how would you do it?"

    I see TechDirt as an incubator. The output is not meant to throw off an entire company's existing implementation strategy, but to pose a real question of "How do we get there before someone else does?" This is what my core competency is...

    After all, you have to replace your product before your competitior does. How would they do it..?

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


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