Sunday, July 11, 2004
The Sticky Legal Points of Blogging? 
by Lenka Reznicek [permalink] 
Overlawyered points out several cases where webloggers have been sued using very broad interpretations of libel law:
In an article in USC Annenberg's Online Journalism Review, writer Mark Thompson examines some recent instances in which webloggers have been threatened with defamation actions on questionable grounds, such targets including Justene Adamec (Calblog) (see Jan. 22) and the pseudonymous "Atrios". One source of jeopardy is courts' penchant for narrowly construing statutes intended to protect press freedom: for example, the Wisconsin Court of Appeals refused to extend to the Internet a state law providing that newspapers and magazines cannot be sued for defamation until they've been given a chance to retract an item.
But it isn't only the content of a blog that is susceptible to legal action. As the Thompson OJR article states, libel suits have been mounted against bloggers for defamatory statements made by readers in their comments areas, or for linking to statements on other websites that are perceived as defamatory.
A case from Wisconsin from nearly a decade ago still stands as a cautionary tale for Web writers about the limits of many state statutes that deal with corrections and retractions designed to enable conscientious journalists to avoid crippling liability claims for errors that make it into print.

In that case, Jeff Meneau of Wisconsin filed a defamation suit against Rosario Fuschetto for nasty comments that he made in a personal spat that spilled onto the bulletin board of SportsNet, an online forum for sports memorabilia dealers and collectors. Fuschetto tried to get the case dismissed on grounds that Meneau had failed to comply with Wisconsin's corrections law, which states that before proceeding with a libel or defamation lawsuit, the aggrieved party must issue a written demand for a retraction to give the publisher a "reasonable opportunity" to set the record straight.

The Wisconsin Court of Appeals rejected Fuschetto's argument. The statute in question refers to "any newspaper, magazine or periodical" but makes no mention of other forms of writing such as personal letters or billboards. It certainly doesn't extend as far afield from traditional print media as the Internet, the court declared. "Applying the present libel laws to cyberspace or computer networks entails rewriting statutes that were written to manage physical, printed objects, not computer networks or services." That's a job for the legislature, the court concluded in 1995.

Nearly a decade later, few legislatures have taken up that challenge, according to Thomas Burke, a media lawyer in the San Francisco office of Davis Wright Tremaine LLP. "Most states do have a retraction statute. But very few states have a retraction statute which would seem to contemplate protection for statements that are published online," he says. Some of the statutes are worded just broadly enough that a Web writer with a creative pleading might be able to squeeze in the door, Burke adds. "But two-thirds of the statutes would need to be amended to contemplate the ways that people are now communicating online."

In the meantime, says Burke, Web publishers should scrupulously follow their state's corrections law as if they were covered by it. To wit, they should promptly post corrections and retractions in a place that is as conspicuous as the content that could give rise to the libel suit. That may not preempt a libel claim against a Web writer, as it could for a print publisher expressly covered by the corrections law. But it could certainly help blunt any demand for hefty damages, Burke says.

Luskin's attorney, Upton, a partner with the Boston firm of Hanify & King, agrees that Web writers won't necessarily get themselves off the hook by publishing corrections online. Under the principles of statutory interpretation, laws that can result in penalties "are supposed to be very narrowly construed by the courts," Upton explains. So if a corrections statute does not expressly include electronic media, Web writers are out of luck, in his view. Any who aren't happy about that should take it up with their elected representatives, Upton says. "It's a case of the legislature needing to catch up with technology." [read full OJR article]
The latter instance strikes me as truly stretching - it's the Internet equivalent of being sued by John Doe for telling a third party, "Joe Schmoe said John Doe is a big fat liar." With "lawsuits" like these, proponents of Free Speech may have more immediate worry from frivolous claims than from high-level "Big Brother" legislation.

While most webloggers may not have much to worry about, even for those with small readerships, it bears considering that anything published in a blog is considered "published print" rather than just casual conversation. One one level it's quite troubling, but on the flip side, it illustrates the power of the published (blog) word.