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Rash of Blogger Lawsuits
rogerd




msg:3509828
 3:27 pm on Nov 20, 2007 (gmt 0)

Blogs may be great places for ranting, but "free speech" can get expensive. I heard a story on TV news this morning about a blogger who got sued for writing negative things about her child's day care. I couldn't find a Web version of the story, but was surprised to find how much blog lawsuit activity there is:

Lawsuit a reminder to pause before 'Send' [dailyherald.com]
A court reporting firm, BESCR Inc., with offices in Aurora and Chicago, sued Trisha Goodman, a Tulsa, Okla., court reporter subcontracted by the firm. She had started a blog to complain she hadn't been paid the $2,300 due her from BESCR Inc. Three others were sued for telling other people about the blog. The suit asks for $3.4 million in damages.

Bonlender sues over Ensey blog [yakima-herald.com]
The dispute over a once-anonymous blog that posted unfounded rumors that Yakima City Councilman Ron Bonlender had been arrested for drunken driving is heading for court.

Bonlender on Wednesday sued blogger Diane Ensey for defamation and false light, alleging Ensey maliciously smeared him on behalf of her husband, Rick Ensey, who defeated Bonlender in last week's council election.

And here's one where the blogger won:
Court: Blogspot Blogger May Remain Anonymous [webpronews.com]
Former Lawrence School Board trustee Pamela Greenbaum, once a frequent target of commenters on the site, filed suit against Google, which hosts the Orthomom blog, seeking the blogger’s name. Her intent, she said, was to file a lawsuit directly against the writer of the blog, who she claimed had called Greenbaum a bigot and anti-semite.

New York State Supreme Court Justice Marcy Friedman disagreed, writing in an eight page decision dated October 23, 2007, that, “The relief sought by Greenbaum, on the eve of a school board election, would have a chilling effect on protected political speech.” The judge also found that a commenter on the blog, not the blogger, had used the term bigot which, in any event, the judge found, was protected speech.

In the U.S., politicians have a fairly high standard to meet to prove libel or slander. While you can't disseminate outright lies, name-calling seems to be protected speech in most cases. Businesses might be more successful in seeking damages.

Unfortunately, because of legal expenses, even when a blogger wins in court it's almost always a financial loss.

 

m0thman




msg:3509909
 4:48 pm on Nov 20, 2007 (gmt 0)

I receive frequent threats of legal action because of a site I run. It's not a blog, but shall we say some of the articles can appear very critical of companies and the services they offer.

Personally I try to keep it clean and make sure the text isn't written in a defamatory or libelous way. Often the threat of legal action comes after someone has posted something derogatory, and sometimes it's a competitor who is to blame

We tread a tightrope however between "free speech" and really upsetting someone. I find that most companies are easy enough to placate and I'm happy to remove offensive posts as I don't want them either as they add nothing positive to my site.

Another thing that springs to mind is something called "cyber bullying". One mustn't fall victim to that either!

Receptional




msg:3509926
 5:06 pm on Nov 20, 2007 (gmt 0)

Prima Facae, that first one doesn't look like the strongest case in the world to me. I am no lawyer though... please don't sue me!

timster




msg:3510013
 6:40 pm on Nov 20, 2007 (gmt 0)

name-calling seems to be protected speech in most cases

Careful, that's too broad a generalization. It very much depends on the name you are calling. And the person you are calling them name. And the forum in which you are speaking. And whether the name applies.

Either get familiar with the defamation laws applicable to you, or be very nice in what you publish.

skipfactor




msg:3510063
 7:33 pm on Nov 20, 2007 (gmt 0)

>>happy to remove offensive posts

I've been threatened before (legally) for posts that were removed same-day. What's the cutoff? Are you libel for a post you zapped in a few hours? If a blogger's on vacation for a week is she coming home to served papers?

m0thman




msg:3510075
 7:44 pm on Nov 20, 2007 (gmt 0)


I've been threatened before (legally) for posts that were removed same-day. What's the cutoff? Are you libel for a post you zapped in a few hours? If a blogger's on vacation for a week is she coming home to served papers?

Tough one that. I did miss one once and was seriously nagged, even after I removed the post! Apparently the offending text was still appearing at the top of Google's search results on a search for "insert company name"

I had to explain about cached pages etc... :-)

Demaestro




msg:3510086
 8:10 pm on Nov 20, 2007 (gmt 0)

Fatcs are:

If it is true... then it isn't libel...

If it is opinion it must be presented as such... and is also not libel...

I think all this shows is that there are people out there who think that they can sue for anything and in the USA that is for the most part true.

The first case has NO merit at all. They owed someone money... that person complained online that they were owed money. If that is a basis for a lawsuit then credit score reporting companies are in for some trouble.

The second case is cut and dry. They lied about him and he can show how that hurt his image as he is a public figure. Don't lie about people. Also this case leaves no room for the argument that it was opinion... you can't be of the opinion that he was arrested. That is a fact.. it happened or it didn't.

The last one I would say is opinion... you can be of the opinion that someone is a bigot and anti-semite. It doesn't make it true.. but it is definitely a subjective statement.

Bloggers.. rant and rave all you want... don't be a keyboard warrior/troll that makes stuff up to increase blog views though. Be honest and when stating an opinion make sure that it reads as such.

Many on here may know that I can rant and I can be wrong. I have been threatened with libel suits but nothing has ever happened other then a letter... the reason is... I don't make up facts. Neither should you.

[edited by: Demaestro at 8:13 pm (utc) on Nov. 20, 2007]

WiseWebDude




msg:3510088
 8:13 pm on Nov 20, 2007 (gmt 0)

Tough one that. I did miss one once and was seriously nagged, even after I removed the post! Apparently the offending text was still appearing at the top of Google's search results on a search for "insert company name"

I had to explain about cached pages etc... :-)

EXACT same thing happened to me on one of my forums. I did remove the post because the poster was an idiot and just mad...I told the company I removed it. Next day get another e-mail saying I still see it #1 on Google when I search for my name...I had to explain it takes a few days or weeks to drop. He understood then. He was losing business because of it as people would call him and say what's the deal with this info on you in Google, etc. So, do not underestimate the power of such forums and words...they DO have an impact. I Google every company I do business with now and so do a LOT of people.

;)

Jonathan




msg:3510110
 8:45 pm on Nov 20, 2007 (gmt 0)

There is a significant difference between content that you have authored (say, a blog posting written by you), and content authored by your users (comments to a blog post, posts on a forum, etc.).

In America, the protection is fairly strong for third-party service providers (ISPs, forum admins, etc.). EFF has details on this: [w2.eff.org...] . The text of the law is here: [www4.law.cornell.edu...] .

By my experience, companies will often try various scare tactics to pressure you into removing someone else's posting. Putting the webmaster or forum administrator "on notice for defamation" is a common one. In many cases, they know that they can't find the identity of the original poster (or they don't want to subpoena for it because of the resulting press), so they pressure the admin to remove it.

Situations like these are rarely decided by fair and honest interpretation of the letter of the law.

Demaestro




msg:3510129
 9:03 pm on Nov 20, 2007 (gmt 0)

Jonathan.... there are provisions in libel/slander law that holds publishers and editors responsible as well as the authors. Papers can't just publish any article that gets written without some fact checking.

So while you are right there is a difference between content you create and content your users create, you fail to realize that by allowing your users to post you are publishing their works. This makes you actionable as well.

I will add that it has been successfully argued in court that one cannot review all content posted on a site that allows users to add to the content. It must however act quickly in removing anything offending and provide tools for people to report posts or entries as offending....

Examples of this...

YouTube can't be charged with publishing copyrighted content... but it can be if they are made aware of an offending video and they do nothing.

Same with Google search... while it can't possibly review every change on every website it indexes it can and must review all sites that have a complaint made about it by someone. Libel or copyright they must act to keep themselves in the legal "right"

So just because you didn't author it doesn't let you off the hook completely. If you are running a blog site I think you should at least have a reporting tool.

Although you are right Jon.. many will try scare tactics to get you to remove something that is non-offending.. you have to be able to identify them as such first... take them all seriously... check the offending post and moderate your site accordingly... if you are diligent you will shield yourself.

... the above is all non-legal opinion though so please don't confuse this as legal advise... laws vary from country to country and state to state.

[edited by: Demaestro at 9:08 pm (utc) on Nov. 20, 2007]

Jonathan




msg:3510140
 9:27 pm on Nov 20, 2007 (gmt 0)

Thanks Demaestro. Agreed on the copyright issues. However, by my admittedly limited understanding, defamation is treated differently, and this statement is not completely accurate: "by allowing your users to post you are publishing their works. This makes you actionable as well."

The money line in 230 is: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

So, isn't it that the service provider can't be treated as the publisher? Whereas papers that "publish" are "publishers". So, provisions that hold publishers responsible are not applicable?

LMK if I've got that correct. I'm no lawyer either. If you're interested, I can sticky you an example of where we successfully exercised the above principles against a very large media company.

Demaestro




msg:3510182
 10:42 pm on Nov 20, 2007 (gmt 0)

Jon... you bring up a good point and I don't know the answer.

I will say that in copyright law web site owners are being taken to task for "republishing" works.

For example a sporting event... I can make a copy of it... I can even make a highlight reel... as soon as I post it online I have "republished" it and now I am in violation of copyright law for publishing it.

If what you are saying is in fact the case then that leaves a glaring hole in many copyright suits that are ongoing. This is pure speculation and rhetorical but if I am considered a publisher when it comes to copyright law am I not a publisher when it comes to libel by the same token?

Also I am interested... would love the sticky.

[edited by: Demaestro at 10:53 pm (utc) on Nov. 20, 2007]

Jonathan




msg:3510207
 11:37 pm on Nov 20, 2007 (gmt 0)

if I am considered a publisher when it comes to copyright law am I not a publisher when it comes to libel by the same token?

I'm not certain exactly how copyright reconciles with 230 in that regard, but I would be interested to know. Maybe it is indeed the publisher/republisher nuance. I'm drawing the defamation details from here: [chillingeffects.org...] .

Will send that sticky.

walkman




msg:3510225
 12:32 am on Nov 21, 2007 (gmt 0)

are bloggers considered "media" to fall under the Supreme Court protections (NYT vs Sullivan)? If so, you can get away with a lot of things especially about public and private figures. But then, it would open the door to millions of bloggers to say pretty much whatever they wanted (about public figures & officials) with no checks as "actual malice" is hard to prove.

IMO, bigot is an opinion, as it is relative. PLus, he is a politician so he's toast--twice.

Jonathan




msg:3510247
 1:57 am on Nov 21, 2007 (gmt 0)

The html anchor isn't coming through in the link I put in my previous post. Here's the text on that page to which I'm referring. The source is ChillingEffects.org:

Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation?

Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.


Moncao




msg:3510363
 7:57 am on Nov 21, 2007 (gmt 0)

Libel definitions and jurisdiction

Demaestro

First of all Internet libel is mobile, so a Russian can publish an item about an Australian regarding what he gets up to in the USA and be sued in London IF the Aussie can show that item has damaged him there and if the Russian has an address or asset in England.

"If it is true... then it isn't libel..."
Wrong, it most cases it is a case of "If it is true and in the public's best interest, then it isn't libel" - and of course what constitutes being in the public's best interests can be interpreted differently. In some countries, a comment / item is still libel (and criminal libel at that) if the subject considers it does them harm and if the publisher did not get their approval first! I am not joking. Thanks to the English speaking axis of evil that is exactly what you have right now in Indonesia for example. I can point you to a Hawaiian reporter who published a Hawaiian newspaper article which made the paper’s website about a German born Canadian who may have murdered a local resident and who now lives in Bali, where if that reporter ever went to Bali would be arrested for at least 60 days without charge and then face up to 5 years in a horrible Indonesian jail.

“If it is opinion it must be presented as such... and is also not libel...”
That is your opinion and I would not count on it outside the USA and EU.

“Jonathan.... there are provisions in libel/slander law that holds publishers and editors responsible as well as the authors. Papers can't just publish any article that gets written without some fact checking.”
Papers are the legal publisher, Google with their blogspots legally are not.

If you want to publish something that the subject might well come after you for and you feel that is unfair, take a trip over your nearest national border, go to an internet café, open up a hotmail account (not that you need to but it helps) and publish a blog there (you can publish a blog on most sites with a false email address but they send a verification link email that I guess ultimately determines how much resistance they may put up to requests to remove the blog). If you want to maintain that hotmail account without giving your id away, use a proxy to connect to hotmail. Even if Google was forced to disclose your identity and details, it would be an IP address in another country, a hotmail email address and whatever name you registered.

I am not saying that is right and proper for people to abuse to publish blatant falsehoods, but it is a fact that major corporations in the USA will get you on the basis you can not afford to defend their action. As someone who boycotts personally certain branded products and items from certain countries whenever I can, I have seen how the guilty are particularly aggressive in shutting dissenting articles up.

As someone who has tried to remove an item published by an American on an American web site but while he was in another country, I have experienced internet libel law directly.

[edited by: Moncao at 7:58 am (utc) on Nov. 21, 2007]

RonPK




msg:3510527
 2:38 pm on Nov 21, 2007 (gmt 0)

Free speech vs. libel is one thing, free speech vs. privacy is another. Here in .nl a blogger was ordered to pay 500 euro (that's almost US$ 750 these days) in damages because of trashing a Vodafone employee's privacy. The blogger held the helpdesk employee personally responsible for the problems he was having with his Vodafone account, and decided to get even by publishing her name on his blog.

I guess it matters whether the person a blogger is publishing about is a public figure or not. Company employees obviously are not.

Jonathan




msg:3510694
 5:43 pm on Nov 21, 2007 (gmt 0)

Moncao -- I can't comment too much on law outside the US, or I will like even more of an amateur :).

In America, "Public figure" status raises the barrier for an effective defamation charge. It's easier to insult the US President than your neighbor down the street. Once again, quoting from the aforementioned ChillingEffects.org Defamation FAQ [chillingeffects.org]:


Question: What are the elements of a defamation claim?

Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements:

a publication to one other than the person defamed;
a false statement of fact;
that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual malice.

"All internet libel is mobile" is an overly-definitive statement for what is, by my understanding, a very nebulous situation.

There was a case of an Australian-based online community in our niche. A member of the online community said something "disagreeable" about a local Australian media entity. Australia doesn't have the coverage we have from 230. The Australian media entity sued the Australian forum administrator, claiming that he was responsible for the comments (even though he had not authored them). We moved the Aussie forum to an American host, and gave them an American administrator who was "officially" in charge of the site. In that case, the problem was solved. Sticky me if you want to see the url. Also, I would be interested in privately following up on any internet libel situations you may have experienced, at very least to add your links to my files, and your experience and perspective to mine.

The power to Googlebomb is a powerful weapon in fighting a corporation. Many large political, social, and economic entities have been Googlebombed -- the proof is in the SERPS. If a corporation comes after you in a manner which you feel is unfair, and not representative of the law, then Googlebombing them, or their execs, is an effective and ethical option to defend your freedom. I'm not saying they won't take your money. In each situation, you have to weigh the value of your financial resources against the value of your freedom, and make the appropriate decision. If they come after you once, successfully, then, in a sense, they own you. If they're in your niche, you will likely encounter them again. If you can prove that pursuing you will *worsen* the situation, then, according to my experiences, you win. The same skill that webmasters demonstrate in using SEO principles for financial gain can be exercised in defense of their freedom.

We had a situation where the executive of a large company (who was also the CEO of a very large marketing group) sockpuppeted on our forums. When confronted with blatant evidence, he refused to apologize. His company has "estimated" revenues of $25 million, and he has distributors for his products in over 30 countries. We Googlebombed him. In response, he started his own firstnamelastname.com website, and even "convinced" others in his niche to write SEO'd articles "about" him. Right now, we control Google positions #1, #2, and #7 for his name, and position #4 for his biz name. Again, sticky for details.

Everyone's experience differs. Despite the heavily-publicized "bloggers getting sued left and right" articles, there are many potent examples of the "little guy" winning consistent victories against the forces of The Man. A clear understanding of the law (an admittedly difficult thing to achieve for "legal laymen" such as us) is the first line of defense.

europeforvisitors




msg:3510710
 5:55 pm on Nov 21, 2007 (gmt 0)

Free speech vs. libel is one thing, free speech vs. privacy is another.

That brings up an interesting point. If, say, a number of Webmaster World members make libelous allegations about a search engine or ad network--and if the SE or ad network sues as a consequence--can the plaintiff subpoena the names and addresses of those forum members as part of the discovery process? Community members with a vested interest in anonymity might lose out from having their covers blown, even if the plaintiff's lawsuit was ultimately dismissed.

Demaestro




msg:3510929
 9:56 pm on Nov 21, 2007 (gmt 0)

"If it is true... then it isn't libel..."
Wrong

Moncao I may not fully understand this law but I do know one thing. If it is true it isn't libel. That is the whole basis for libel.

If that isn't the case anymore then legal wrangler has skewed the original intent of slander and libel law so much that it's original intention was lost.

By what your saying, if I reveal a truth about someone and it was deemed not in the interest of the public then I could be slapped with a libel suit? That can't be right. Truth is truth. Even if it damages someones reputation it is still truth.

You should never be in legal hot water for telling the truth..... unless you are under contract to not reveal it and that is it.

I am pretty sure that the same is true of opinion.

For example if I say I don't like an artist because I don't feel he represents the art form he claims to.. he can't sue me for damages... even if I am Oprah Winfrey and billions hear what I say and the artist never sells another painting again. It isn't slander and it isn't libel.

Look up what happened when Oprah nearly killed the cattle industry by expressing her believe that red meat was bad for you and after listening to a vegetarian guest proclaimed that she had been "stopped cold from eating another burger."

She got sued. That isn't right.

walkman




msg:3510949
 10:17 pm on Nov 21, 2007 (gmt 0)

>> Moncao I may not fully understand this law but I do know one thing. If it is true it isn't libel. That is the whole basis for libel.

it maybe something else, but you still can be responsible in some countries. There was a case in US where the name of a rape victim was printed after her death and family sued for invasion of privacy (her name was already in public records /court case). The US Court ruled in favor of the paper, but other countries might not agree with it.

How it should be and how it is differ at times.

Demaestro




msg:3510968
 10:37 pm on Nov 21, 2007 (gmt 0)

Walkman.

They sued and lost and they didn't sue for libel they sued for invasion of privacy. Which is a totally different thing all together.

If I break into your house... find your secrets and post them, it isn't slander or libel, it is break and entry and invasion of privacy. If someone got the info from public records it would be hard to prove invasion of privacy.

The law is most likely different in other places but I doubt they would call a law slander or libel if it applies to the truth coming out, it should be called something else.

The reality is if you do something and you keep it hidden. Then later you are exposed, it isn't the exposure of the facts that hurts your character it is what you did it that hurts it.

walkman




msg:3510973
 10:39 pm on Nov 21, 2007 (gmt 0)

main point: you may be held liable, truth or lies! For what and where...it depends.

Jonathan




msg:3510975
 10:41 pm on Nov 21, 2007 (gmt 0)

If, say, a number of Webmaster World members make libelous allegations about a search engine or ad network--and if the SE or ad network sues as a consequence--can the plaintiff subpoena the names and addresses of those forum members as part of the discovery process?

By my (once again, non-lawyer) understanding, yes, they can and may subpoena for information that may lead them to the personal identity of someone who may have defamed them (I'm sure it's more complex than the exact way I'm wording it). However, such information is not always available -- a forum admin may not know the personal identities of his or her members, an ISP may not retain IP address records beyond a certain date. From what little exposure I've had, I've seen that credibly resolving online identities can be technically and legally difficult.

More importantly, a subpoena opens them up to press coverage. The more notable the plaintiff, the juicier the potential story. IMO, this makes the larger political and corporate entities less likely to legally pursue any potential defamation. I don't recall the exact company name, but I remember in the past year or two, a previously-unknown SEO or web firm filed a frivolous lawsuit against Google. There was plenty of press for the firm before people figured out that the only reason for the suit was to generate plenty of press for the firm. When the big guys subpoena the little guys, it can provide the same effect, in reverse.

When we receive frivolous legal threats, now we simply say that all paper thrown at us will be sent out in a press release. Then, we refer them to some of our previous successful (and still-standing) Googlebombs.

----
Also, to expand on the point being made by Demaestro and walkman: when understanding defamation, it's helped me to move from perceiving defamation as "non-truth", to perceiving defamation as "false statement of fact". A skilled journalist or otherwise media-savvy person knows how to slightly modify verbiage to protect against defamation, while still, to the reader, appearing to be making a "statement of fact".

Angonasec




msg:3511112
 2:17 am on Nov 22, 2007 (gmt 0)

"I had to explain about cached pages etc... :-)"

Google used to have a very efficient way to remove cached pages by direct email request. Ms. Fox posted the details and it worked fine for such cases, copyright infringements etc.

Then a few months ago G killed that method, trying to persuade us that the Removal tool will do the job.

It rarely works on cached copies in G, you have to nag G into submission.

They know it is broken, they just can't fix it.

Try getting a cached copy of a page you've had removed in response to a DMCA to the infringer, and you'll see what I mean.

G expect you to wait, and wait, until the cache is auto-renewed, meanwhile your legitimate page plummets due to perceived duplicate problems.

Vanessa, please get it fixed, or return to the original method you posted here.

rogerd




msg:3511145
 3:30 am on Nov 22, 2007 (gmt 0)

Truth may indeed be a defense against libel and slander, but that doesn't mean you can't get sued and spend a whole bunch of money proving your innocence.

crobb305




msg:3511164
 3:49 am on Nov 22, 2007 (gmt 0)

Vanessa, please get it fixed, or return to the original method you posted here.

She left G quite a while back.

Moncao




msg:3511238
 8:10 am on Nov 22, 2007 (gmt 0)

Jonathan

Yes, in most first world countries you can publish something against a public position (politician, etc.) with virtual impunity, the reverse of course in third world countries; the exception being Dear Queenie in the UK whom you can not technically insult to this day, that is if you think the UK is a first world country of course.

Libel

Unless there is good reason for the public to know the truth (other than your desire for revenge), then in many countries you absolutely can be sued for libel. It is kind of like the difference between saying someone had a same sex act in a public toilet against going into graphic detail as to what they did.

[edited by: Moncao at 8:11 am (utc) on Nov. 22, 2007]

Demaestro




msg:3512076
 8:36 pm on Nov 23, 2007 (gmt 0)

Truth may indeed be a defense against libel and slander, but that doesn't mean you can't get sued and spend a whole bunch of money proving your innocence.

See this makes me sad... it is true, and that is what is sad.

It is like saying...... Well you can cross the street at the corner, even though that is allowed and would be a defense against jaywalking, you could still be charged.

Why? I am allowed, so why would I need to defend it?

I can publish truths about people, I shouldn't worry about being charged with something. I am fully in my legal right to do so.

That is the problem with jurisprudence in the United States, even when clearly in the right you can be made to defend your actions. Sad that it dictates the way some go about things.

It is like not going out after dark "because you leave yourself open to attack". I don't want to live that way, but that is the egg shell walking society that we are becoming.

That makes me a sad panda

rogerd




msg:3512176
 12:09 am on Nov 24, 2007 (gmt 0)

It is sad, Demaestro... the solution is to require the loster to pay legal costs for the winner of the suit. That's not currently the law, though.

This 39 message thread spans 2 pages: 39 ( [1] 2 > >
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