TCS Daily

The Next Litigation Battleground

By Pejman Yousefzadeh - November 26, 2003 12:00 AM

As blogging has grown, so has its capacity to attract negative attention to the activity, and to those who participate in it. From the earliest nasty exchanges in USENET discussion forums to current flame wars between blogs on various issues, Internet discourse has occasionally been marked by intemperate commentary. And while discourse in the Blogosphere has been largely civil, sometimes incivility spills out and makes itself manifest. And now, the sometimes rough discourse has the potential to become the next hotbed of litigation.


Blogger Steven Den Beste was perhaps the first to be threatened with a defamation lawsuit -- his reply to the threat can be found here. Recently, two bloggers -- Atrios and Donald Luskin -- were involved in a semi-public fight where Luskin accused Atrios of libel because of statements made by Atrios's commenters about Luskin and his critiques of New York Times columnist Paul Krugman. (Many blogs have comment sections for readers to make remarks on a particular post. Atrios and Luskin eventually settled their differences, and announced that settlement in vague words on their blogs.) And now, blogger Justene Adamec has been sued by the company Infotel based on comments made about the company by commenters on her blog.


For a defamation lawsuit to succeed, there must be (1) a defamatory statement of fact; (2) of and concerning the plaintiff; (3) publication and (4) damages. Given the fact that any statements made by commenters are published by the commenters and not by the blogger, that alone should protect bloggers from lawsuits for the remarks made by commenters on their blogs. And as Adamec -- an attorney -- properly points out, 47 U.S.C. § 230 protects against suits such as those for "invasion of privacy, misrepresentation and interference with economic relations" -- which Adamec has been confronted with:


(1) Treatment of publisher or speaker

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.


(2) Civil liability

No provider or user of an interactive computer service shall be

held liable on account of -

(A) any action voluntarily taken in good faith to restrict

access to or availability of material that the provider or user

considers to be obscene, lewd, lascivious, filthy, excessively

violent, harassing, or otherwise objectionable, whether or not

such material is constitutionally protected; or

(B) any action taken to enable or make available to

information content providers or others the technical means to

restrict access to material described in paragraph (1).


Adamec's interpretation of the statute is backed by this ruling, which was issued by the Ninth Circuit Court of Appeals (blogger and UCLA law professor Eugene Volokh wrote a post discussing the ruling and its impact on bloggers). The policy behind the statute is a good one -- it makes no intuitive sense to hold bloggers responsible for the statements and opinions of others, and doing so would chill Internet expression and the capability of the Blogosphere to decentralize the disbursal of information, and add a perspective to the issues of the day that Big Media currently does not provide.


But while the current state of the law may protect bloggers from defamation actions and suits such as those confronting Adamec, the fact is that nuisance suits could potentially restrict blogging by making potential bloggers hesitant about starting their own websites, or allowing comments on their blogs. This may dampen the blogging phenomenon, and therefore reduce the kind of vibrant and interesting discourse that blogging has brought to our culture and society. Even if a blogger gets a suit against him/her thrown out, the costs of defending oneself may still be prohibitive. Lawsuits against bloggers can have a very real chilling effect on the enterprise.


It would, of course, be useful to have a body of case law -- as opposed to isolated opinions like the one issued by the Ninth Circuit -- that would provide more guidance to bloggers as to their legal rights and responsibilities in this area, but since blogging is a relatively new phenomenon, a substantial body of case law simply does not exist. It may soon, given the increasing threat of litigation towards bloggers, but it would, of course, come at the cost of seriously disrupting the life of any blogger caught up in such litigation.


There are no easy answers to this problem, but the threat of litigation is one that bloggers ought to be aware of. It should serve as a factor in the decision over whether or not to blog, as well as whether or not to allow comments on a site. Bloggers would do well to have disclaimers on their sites indicating that unless stated otherwise, comments or quotes from others appearing on their blogs do not necessarily reflect the opinions of the bloggers. And bloggers should definitely ensure that they are up to speed on the laws surrounding libel, the specifics of 47 U.S.C. § 230, and other developments surrounding the intersection of blogging and the law, as well as paying close attention to the nature of comments made on their blogs so as to protect themselves to the greatest degree possible from any lawsuits that arise from the comments of a reader of a blog.


In a similar vein, readers ought to understand that the comments they make on the site of their favorite bloggers could potentially get those bloggers enmeshed in litigation with outside sources. Should a blogger notice a reader comment that might attract attention and possible litigation, it may be best for that comment to be deleted, lest it actually bring about unwelcome legal attention. At the very least, this may be the best course of action to follow until a substantial body of case law exists to protect bloggers from frivolous litigation.


We are in virgin territory when discussing the legal implications of blogging. The novelty of the phenomenon and the relative lack of definition from the courts means that much is still uncertain. The best thing that bloggers can do is to be careful about the legal implications of their activity until there is more guidance on how the law treats blogging. In the meantime, bloggers can work to attract public attention to this issue, and push the debate on how best to structure policy surrounding the intersection between the Blogosphere and the law. Given the nature of the Blogosphere to provide attention to and educate the public on issues that escape Big Media notice, but have a very real and profound impact on public policy, one would expect nothing less.


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