Blogs Held to Lower Standards on Defamatory Speech

MSNBC runs the headline, “California court says bloggers can’t be sued.” Their quick summary:

The California Supreme Court ruled Monday that bloggers and participants in Internet bulletin board groups cannot be sued for posting defamatory statements made by others. In deciding a case closely watched by free speech groups, the court said a federal law gives immunity from libel suits not only to Internet service providers, like AOL, but also to bloggers and other users of their services. “Subjecting Internet service providers and users to defamation liability would tend to chill online speech,” today’s unanimous ruling said.

The headline and summary, though, is far, far too broad. Indeed, as Danny Glover reports the case wasn’t about blogs at all:

The case in question was not related to blogs; rather, a woman who ran an e-mail list and newsgroup about breast cancer was sued for posting a man’s letter that was critical of a doctor. But MSNBC reports that free-speech advocates had warned that a ruling against the e-mail and newsgroup publisher could have impacted blogs and other online forums, too.

The San Francisco Chronicle‘s summary is a quite solid reading of the case:

People who claim they were libeled on line can’t sue the Internet service providers that carried the messages, the California Supreme Court ruled today.

The unanimous ruling reversed an October 2003 decision by a state appellate court in San Francisco that would have held carriers like Google and Yahoo to the same legal standard as newspapers and book publishers. They can be sued for the contents of a libelous message if they knew, or had reason to know, that the message was defamatory and failed to remove it.

The state’s high court said today that Internet service providers were immunized by a 1996 federal law that said providers of chat rooms or news groups are not considered the publishers of information furnished by others. That means they’re not responsible for the content, even if they knew it was harmful, the court said.

The ruling means someone whose reputation is damaged by a widely disseminated smear on the Internet can sue only the author of the message, assuming that the person can be identified. The court acknowledged that the result was troubling but said it was dictated by federal law and accepted by every other court that has considered the issue.

Eugene Volokh notes that,

A long line of cases had already held that when a user posts material on a site, the operator of the site (or of the computer), can’t be held liable, even when it’s notified of the potentially tortious nature of the activity. Thus, for instance, we wouldn’t be liable for libels posted in our comments. But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post.

Dan Gillmore believes, “This is an absolutely crucial decision, and it will reverberate for years to come.”

The idea of holding ISPs accountable for content posted on sites they host is, frankly, absurd. Still, it’s interesting that Internet sites, including blogs, are being held to a lower standard than newspapers. Presumably, this is a recognition of the differing natures of the media. For the most part, bloggers do not have the resources of a big city paper; only a few have anything approaching that type of audience, either.

Justin Levine points to another difference, although one that likely was not taken into account by the court:

Those who worry that today’s decision could have “troubling consequences” regarding libel on the Internet fail to see the bigger picture here. One of the primary rationales for defamation laws in the first place was predicated on the assumption that the target of the libel would not have access to media or modes of communication to help correct the misinformation. The Internet is causing that rationale to rapidly collapse in on itself. In a world where everyone has access to the same megaphone, the sensible course is to let all messages freely compete. I am confident that the truth will win out more often than not. And in the end, those who knowingly defame others will ultimately find their reputations trashed far more than their targets.

That’s true of ideas generally, although I’m dubious of it as a remedy against defamation. The mere leveling of certain charges is hurtful and there will always be some fraction of the audience that believes them true regardless of the rebuttal evidence. The Internet can certainly be a powerful megaphone and, with clever manipulation of search engine results not particularly difficult for many keywords, the ability to do damage in many ways dwarfs that which was possible previously.

UPDATE: Michelle Malkin shares my reservations about the implications of the ruling.

If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I’m liable.

That absurd result is what the ruling seems to suggest and what many bloggers hope it suggests.

But aren’t bloggers the ones arguing that we should be treated like MSM journalists? Isn’t that what the Apple vs. bloggers case was all about? Remember? Seems to me that some bloggers want to enjoy the benefits of MSM status (fighting for the same coverage as traditional journalists under shield laws, as in the Apple case), but avoid the consequences (getting sued if they re-publish defamatory material online).

As Ben Parker famously noted, With great power comes great responsibility. Decoupling the two is nothing to cheer about.

FILED UNDER: Blogosphere, Law and the Courts, Media, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I think the analogy to the newspaper would be if they were exempted from libel laws associated with letters to the editor. Of course there is the distinction that the ISP is not filtering the letters the way the newspaper filters letters to the editor for publication.

    In a rational world, I think the best way to handle this is to require the addition of a link if a formal protest of defamation is made. The link could lead the user to a web site with the counter argument. The claim of defamation would be identified along with the link. Then the competing ideas can clash all they want.

  2. legion says:

    Of course there is the distinction that the ISP is not filtering the letters the way the newspaper filters letters to the editor for publication.

    True. And I don’t see how the ISP could be held liable under any circumstances. But as Volokh says,

    But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post.

    And that’s why this is important – because when someone reposts someone else’s words, for example, if James quotes someone’s comments on the main page, James _still_ can’t be held liable, even though he drew further attention to the (potentially) actionable words.

  3. legion says:

    But aren’t bloggers the ones arguing that we should be treated like MSM journalists?

    Yes, but time and again, the MSM & the general pulic have rejected that. I don’t agree with all the details, but this decision is just the court’s agreeing with everyone else…