Internet-Libel vs. Free Speech

There are many liability issues surrounding Internet postings whether they be blogs, tweets, posts in a discussion forum, or comments to articles on Petaluma 360 or the Press Democrat… 
  • Free speech?
  • Appropriate speech?
  • Legal liability for the author (anonymous or not) of the posted words–whether they be in a forum or in a blog?
  • Liability issues for the owner of the web site?

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Screen Names–John Hancock vs. “BIG JOHN” 

Newspaper articles, blogs, and letters to the editor are published with the name of the author or reporter.

In the Internet world, anonymous posting or the use of screen names has become a standard in public discourse. As such, even I have done so on various websites over the years. Screen names are particularly useful on financial or investing websites where one does not necessarily want to attract unwanted contacts from various sales people or pesky reporters.

Pro & Con

The general use of Internet screen names is not without some controversy…

  • Supporters of screen names argue that they promote candor and allow people to express a point of view without fear of personal retribution or physical assault.
  •  Opponents of screen names argue that they facilitate false rumors and libel. Others argue that they promote or encourage bullying and name calling, not to mention the use of “crude” language.

Both sides have good cases.

I have a natural bias of wanting to know the author of anything I read and believe that people should put their name behind their words. For example, can anyone imagine John Hancock signing the Declaration of Independence as BIGJOHN?

On the other hand, there is a good case for anonymity in certain instances.

  1. Allowing people to register and post under a screen name does facilitate more open discussion even though this means that sometimes you will get the bad with the good.
  2. As one acquaintance recently put it: “In modern society very few folks participate in public discussions of issues. It just isn’t part of the culture. I think that anonymous postings contribute to folks offering knee jerk reactions rather than more thoughtful comments. On the other hand, if you required everyone to put their names on postings then it would be harder to gauge the temperature of the community.”

Newspaper Websites Are A Business

Practically speaking, allowing the public to use screen names facilitates traffic on these websites and thus helps sustain them as a business model. To put it bluntly, they must be able to sell advertising–and that means page hits.

MY WORKING CONCLUSION–One I did not think I would come to as I started looking into this subject…

Use of screen names is not per se objectionable.

How you act behind the screen name (i.e. what you write) is an entirely different question. You are ultimately responsible for what you say whether as “Big John” or John Hancock.

A MODERATED WEBSITE

If the website is moderated, some of the coarser elements of public dialogue should be weeded out.

In my opinion, a moderated website must temper excesses in language and personal attacks if for no other reason than to avoid driving away “customers” who do not care to be exposed to it. On some websites I am familiar with, I have seen some posts disappear quite quickly–in a manner of a few hours in some cases.

The question is whether the “moderating” or “monitoring” of these websites is more form than reality.

WEBSITE USER POLICY

Introduction

The Press Democrat in Santa Rosa, California has an excellent comprehensive policy governing the content of postings to its website. Therefore, I do not have to expend “mental calories” deliberating on what a policy should be.

User Policy as set forth in the Online Agreement

Section 3 of the Press Democrat Member Agreement clearly outlines the user policy for the website: “Like any community…chats and message boards flourish only when our Members feel welcome and safe.” “Active discussions” are encouraged but users should be “courteous” and not post…”libelous, obscene, pornographic, abusive, or otherwise illegal material.”

In addition, the agreement stresses the following rules of behavior and language…

  • “Debate, but don’t attack. In a community full of opinions and preferences, people always disagree.”
  • “You agree not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc.”
  • “Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Service.”

User Policy as set forth in screen advisories

The user policy is further reinforced by screen advisories on both  the Press Democrat and Petaluma 360 websites that comments and posts are subject to approval by a moderator.

The screen advisories also caution posters to be “…respectful of the feelings of others who may be personally involved in these news stories.”…or to “… be courteous and respectful. Avoid expletives, false statements, veiled or overt threats and personal attacks. Stay on topic.”

SOMETHING IS NOT WORKING…

Frequently, many online forums have degenerated into the online equivalent of a street fight or a bar room brawl. There is a pattern emerging of the regular use of invectives, personal insults and attacks. If allowed to continue it will, at the very least, drive people away from the site. However, I foresee other potential serious consequences if there is not an effort to prevent it..

It should be noted that there is an irony present in that moderated websites run the risk of generating liability for the owner of the site by the simple fact that they are moderated sites. On the other hand, it is my opinion that if the moderators make a good faith effort to regulate posts and are consistent in doing so, then the risk is small.

As a user, if you notice posts that do not seem to comply with a website’s user agreement, report it to the administrator. Engaging in a “discussion” with the author of such posts is not a very productive experience as it only serves to encourage escalation.

FREE SPEECH 

For purposes of this article, think of “Free Speech” as a large ocean with two shores, or boundaries if you will. For convenience, I will call them the Criminal Liability Shore and the Civil Liability Shore…

  • On the Criminal Liability Shore, you will find several prohibitions against “incitement” with the classic example being that of Oliver Wendell Homes–You can’t yell “Fire” in a crowded theater when there is no fire. Updating Holmes, you had better not exercise your “Right of Free Speech” by saying “bomb” at an airport, unless you enjoy the prospect of suffering significant and swift consequences.
  • On the “Civil Liability” shore, you will find numerous restrictions and potential litigation on what you can say or write due to trademark and copyright laws. In addition, there are the classic twin specters of defamation claims and potential libel suits.

In between the two shores, there is a vast ocean of unrestricted speech–ideas, criticism, argument, advocacy, complaints, general ranting, etc. The contents of this ocean are only regulated by…

  • Social convention–e.g. there are certain things one should not say at a wedding or an office party…or in some bars after midnight…

or by

  • Contract or agreement–such as a website user agreement…

In the online world, you have the ability to exercise your right to free speech on any number of news websites that permit blogs or public postings to news stories, online forums or other message boards.

However, I hope I have established that there is no absolute right to say or write anything you want without risking litigation or other consequences…even on the Internet.

As a user of such websites (including Petaluma 360 or PressDemocrat.com), you should be aware that these sites have user agreements dictating that the author of any blog, post, or comment is responsible for its content.

LIBEL

Defamation (Libel & Slander) is an extremely complex legal topic. Almost every word used to describe the parameters of defamation is a term of art with a mountain of case law behind each word or phrase…publication, distribution, retraction, trade or business libel, malice, actual malice, intent, negligence, etc.

  • From a practical standpoint, not every disparaging, critical, negative, or derogatory statement constitutes legal defamation. By case law, public figures and elected officials must endure even more than the average person, as they must prove “actual malice” in the publishing of an alleged defamatory statement.
  • Even if defamation is proven, proving up damages is not always an easy task.

In my opinion, most (if not all) of the risks of potential defamation claims can be avoided by the use of a little common sense and common courtesy when posting on a public forum. A practical guide to follow is the one contained in the Press Democrat User Agreement.

Now, for those who want to push the limits–and, in my opinion, they know when they are crossing the line–I suggest they read the next section.

SCREEN NAMES

Screen names are not a protection against discovery

There is a belief by some that you can say anything under a screen name and never be held accountable if a person or a business suspects a criminal or civil law has been broken and decides to pursue the case in court.

The practice of allowing the use of screen names is not an implied permission to engage in defamatory language or to violate the terms of a website’s user agreement. You do so at your own risk.

In my opinion, if there is litigation generated by an anonymous posting or series of posts, a newspaper website is going to give you up in a New York minute.

Think about it…before you post your next brilliant “flame” for all the world to see…

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9 thoughts on “Internet-Libel vs. Free Speech

  1. Pingback: A very thin line - The Village Square

  2. Another interesting concept to have come to light in the blogging world is the issue of British blogger’s being taxed on the perks of their posts. Watch out P’Town, all the extra benefits of blogging, such as bunches of chard etc, might be calculated at some point in the near future!

    • Yikes! But upon reflection, I shall not worry—I have not received any perks from my posts. On the other hand, I have been the recipient of the odd plant or bottle of wine from time to time. OMG!!! THAT is what they’re after!!!

  3. It certainly is a source of great anguish for those that are at the receiving end of online defamation. I had a business destroyed as a result, thankfully I was able to turn adversity into opportunity and now work full-time helping Internet libel victims. Many are not so lucky.

    • I originally wrote this piece in reaction to what I was seeing on some of our newspaper web forum pages. I had witnessed similar “bad behavior” elsewhere in recent years but the recent postings on the newspaper sites pushed me “over the edge” and gave birth to this article. It came out at the same time that a local court ruled that a web site had to disclose the identity of a poster in a libel suit brought by one of our major wineries. Turns out that the anonyous poster was a family member.

      I will spend some time going over the information on your site and may write a follow-up article.

      Thanks for jumping in!!!

  4. You have some nice points here. I would love to see some active discussions on the moral aspects of free speech. Too many blogs and forums discuss liability associated with libel as it relates to legal frameworks.

    As thumper’s mommy said in “Bambi”: “if you can’t say nuffin’ nice, don’t say nuffin’ that all”. The obvious exceptions being whistleblowers for white-collar criminals, sexual predator alerts and so forth.

    Regards, Michael Roberts. Internet libel victim’s advocate
    http://www.rexxfield.com

  5. Pingback: Dear Blogger: See You In Court – Petaluma Spectator - Petaluma 360 - Petaluma, CA - Archive

  6. Pingback: Your Internet Posts Can Get You Sued For Defamation…or worse! « The Petaluma Spectator © Frank Simpson

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