You can say that, but…

…only as long as you are aware of the potential consequences.

The recent national story about Congressman Anthony Weiner’s Twitter posts plus some of the comments posted to the recent Petaluma Patch article, Police launch active investigation into Aqus Cafe vandalism serve as the background for this attempt to again cover the issues of

  • Free speech
  • Appropriate speech
  • Legal liability and other consequences for the author (anonymous or not) of the posted words or photos–whether they be in a forum, an article comment or in a blog

This article is a summary of the several articles posted in the past.

FREE SPEECH

In today’s online world, you have the ability to exercise your power of free speech on any number of news websites that permit blogs or public postings to news stories, on-line forums or other message boards and social media sites. However there is no absolute right to say or write anything you want without risking litigation or other consequences.

As a user of such websites, including the social media sites, 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.

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.
  • Employer rules, policies, and regulations
  • Contract or agreement–such as a website user agreement.

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 established, proving up damages is not always an easy task.
  • On the other hand, as a litigant defending against a defamation claim, you may be forced to spend a considerable amount of money to prove your defense. In short, you may win against the defamation claim…but you will be broke.

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.

Now, for those who still 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

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?

I have come to the reluctant conclusion that the use of screen names is acceptable although I prefer otherwise.

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. 

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, particularly in the area of business or trade libel.

In my opinion, if there is litigation generated by an anonymous posting or series of posts, a  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…

Oh, one more thing. For those who are inclined to post photos of themselves on social media sites, do not use former Congressman Anthony Weiner as a role model. His photos may not have been “illegal”–but they certainly had consequences.

Legal & Personal Dangers–The Internet & New Media World…A Coda

In this post, I offer several items for your consideration:

  • An article by Bill Keller in the New York Times Magazine.  Mr. Keller is quite a bit younger than yours truly, but he definitely hits the mark in The Twitter Trap . The sub-heading gives you a sense of the article: ” What thinking in 140 characters does to our brains.”
  • An update on Your Internet Posts Can Get You Sued For Defamation…or worse! is also in order. One of the stories covered in that post involved the Cleveland Plain Dealer and a judge. Briefly, there was a question of certain anonymous online posts on the newspaper’s web site that were alleged to have originated from the courthouse.  The newspaper decided to break the story and revealed the courthouse internet connection as the source.  The judge was removed from hearing the case in question due to the appearance of impropriety. However, the judge sued the newspaper alleging defamation and breach of the newspaper’s confidentiality agreement for commenters.  The suit was recently settled without going to trial and without disclosure of the rationale for the settlement.

Related links providing background on the Cleveland Plain Dealer lawsuit:

  1. On The Media Transcript
  2. She’s Out: Judge Shirley Strickland-Saffold Removed from Cleveland Strangler Case 
  3. Saffolds dismiss lawsuit against Plain Dealer   
  4. The Indiana Law Blog  

In closing…

There are many positive aspects of the new media world  but it is also adversely affecting many cultural norms of behavior.  Of course this is simply my opinion–an opinion based on the fact that I am 66 years old, out of date, and basically irrelevant.  Personally, this is not a bad state of affairs–in fact, I have been secretly working on achieving this status for quite some time…and intend to take full advantage of it.

The Web As A Tower of Babel?

Some of the articles in this category (Legal & Personal Dangers–The Internet & New Media World) reflect on the changes in the news media generated by the Internet. 

To briefly recap…

  • News organizations (whether television or print media) are being severely cut back due to the loss of advertising revenue, viewers, or readers. 
  • This, in turn, reduces in-depth information gathering and investigative reporting to the public.

Frankly, much of what now passes for news is merely a reprocessing of pubic relations releases or statements from government or businesses.

IN MY OPINION: The expectation that independent journalists will become the new providers of “real” news is absurd in the extreme. 

  • Oh, to be sure, there are courses (some provided by journalism schools) teaching or preaching the new digital age of journalism to former newspaper or television reporters; however, they had better be prepared to work for next to nothing. 
  • Yahoo recently announced a new consortium with several newspapers to provide online content from over 300,000 independent “content providers” who will work for as little as $2 an article

Locally, several individuals are trying to establish advertising supported online “news” outlets through blogs or by paid subscriptions to local web-based news publications. Of course, there is also the Petaluma 360 model. 

The explosion of information sources  is replacing  traditional central sources of information.

IN MY OPINION: It remains to be seen whether or not the Web is becoming another Tower of Babel where everyone has a voice…and no one is heard.

Your Internet Posts Can Get You Sued For Defamation

Foreword 

 I started posting on this WordPress site a year ago this month–102 posts and 296 approved comments in the first year.  Thanks to the readers and commenters for making this a great experience.

As circumstance would have it, the inaugural article for the second year is about the medium as opposed to a Petaluma story.

___________________________

MEMO TO: Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc.

 

From time to time, I have written about the use of the various forms of “new media” or “social media” –Blogs, Forums, Facebook, Twitter, etc.  The number of articles finally reached the point where I decided to create a new archive category–Legal & Personal Dangers–The Internet & New Media World

To date, I have tended to focus on certain privacy issues and what, to me, was a certain lack of decorum and civility in much of what is posted on the various social media outlets on the Web. I also touched briefly on liability issues for those posting comments or articles on the Internet.

Throughout this series, I tended to pull my punches, as I “know” that I am just “old & grumpy” and hence, my opinions are suspect.  However, I recently came across a book written by someone who is definitely not in the “old & grumpy” category, Amy Alkon. Two lines from her book really struck me and I share them here with her express permission…

There’s a meanness, a hostile self-centeredness, that’s overtaken our society since around the turn of the millennium…

Technology isn’t to blame.  It just allows rudeness to be spread farther, faster and to a wider audience.

 “I SEE RUDE PEOPLE: One woman’s battle to beat some manners into impolite society” by Amy Alkon (pages 4 & 6)

It was refreshing, if not invigorating, to read Alkon’s exploits in “fighting back” against the various forms of “rude behavior” that technology now spreads at the speed of light.

I caution practitioners of societal rudeness on the Internet that they may meet up with someone more formidable than the larger than life Amy Alkon–i.e.,  process-servers or police officers with arrest warrants.

In other words, instead of–or in addition to–being a chapter in her next book or the subject of one of her columns or blogs, they could end up in court paying lawyers to defend their words…

_______________________

I.

Anonymity is an illusion…induced by the glowing pixels on

your

screen

Manners and rudeness notwithstanding, individuals can get into serious legal trouble with posts on any of the social media outlets attacking or criticizing individuals, institutions, or corporations if the subjects of the posts believe they have been libeled. Some posters may learn hard lessons about the arcane elements of “tortious interference with business expectancy” and/or trade libel.

Therefore, you had better know what you are doing.  Moreover, even if you do, you still may encounter lawyers…or prosecutors, if there is a question of a crime caused by your posts.

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…there is no absolute right to say or write anything you want without risking litigation or other consequences…

See Internet-Libel vs. Free Speech

As a general caution, I remind everyone to be generally aware of copyright laws as well as the general rules of libel when posting on the Internet…

  • It is one thing to dump on a public figure or public official, but the legal standards are quite different when it comes to private individuals or businesses.
  • If you don’t understand the difference, perhaps you should learn something about New York Times vs. Sullivan. (1)
  • Finally, be aware of SLAPP –as in “slap you down”– suits (2)

Above all, please keep in mind that posting under a screen name will not protect you.

___________________________________

II.

Anonymity’s cloak may be pierced by subpoena…

or a properly issued search warrant.

…It also may be lifted by the site administrator…

There is a raging controversy in Ohio over the recent disclosure of the identity of a regular poster to the Cleveland Plain Dealer’s web site.

Several posts had been made on the paper’s web site commenting on pending criminal cases.  They were traced, via the e-mail address used to register with the newspaper, to the e-mail account of the judge hearing the cases. Now there is a legal question as to whether this information should have been revealed by the newspaper and the Judge is suing the newspaper for $50 Million. (Click HERE  and HERE(3)   (For an update on how this particular case was resolved, Click Here.)

The more likely means of determining the identity of a poster is through the legal system by subpoena, discovery, or a properly issued search warrant. At this point, you will have to hire a lawyer to defend your words in court.

One commentator on NPR’s “On the Media” program suggested that everyone should have defamation coverage before posting on the various social media sites on the Internet. I think that this is perhaps a bit extreme and frankly, the cost of the insurance is not insignificant. It should also be noted that even with insurance, there is always the question of whether or not a particular publication is covered by the policy.

Given the sheer volume of postings on the Internet, it is my opinion that posts that cross the line will be ignored unless and until they become nearly viral.  But there is no question that anyone can be sued…at any time. (4) 

There are three articles I can recommend as a starting point for everyone who sends e-mails, blogs, or posts on the various social media sites…

______________________________

III.

Independent Journalists

Due to changes in the traditional media world (newspapers & television news), there is an increase in the number of professional journalists going it alone–freelancing. In addition, there is the rise of the so-called “citizen journalist” enabled and empowered by the tools provided by the Internet.

These freelancers or citizen journalists may post on their own sites or blogs or on Internet news sites.

Of course, all of the legal constraints apply to them–and they don’t have the resources of a company legal department to back them up.

This situation is discussed in some detail by Alan Mutter in…

I encourage the “new” journalists to read Mutter’s articles. Remember what usually happens to messengers–they used to risk getting shot…today, they risk getting sued. I suppose that is progress of a kind.

As a sign of our times, take note of the following…

  • As a partial answer to the risks of going it alone as a journalist, one organization has set up a legal defense fund
  • In addition, the California Media Workers Guild has created a Freelancers Unit. (6)

_______________________________

In Closing…

  • You Can Be Sued For Your Internet Posts…
  • Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc. should continue to exercise the right of free speech…
  • But be aware of the legal environment in which you operate. (7)

_______________________________

NOTES

  • (1) The most famous case on libel insofar as journalism is concerned is New York Times v. Sullivan.  In that case, the U.S. Supreme Court held that public figures and public officials could not sue for traditional libel unless they could prove “actual malice” on the part of the person who created the alleged libel.  The reasoning was that public figures or public officials, being public, had to have thicker skins. Of course, this does not mean that they could not still initiate litigation, but the newspapers have legal departments and the money to defend.
  • (2) SLAPP Suit (Strategic Lawsuit Against Public Participation)–Litigation to shut down public comment and Internet postings.  Even though they may be without merit, they cost money to defend.  For more information, run a search on the Internet.  
  • (3) One aspect of this case that is not (as of yet) drawing that much attention is the allegation that some of the anonymous comments on pending litigation came from a computer at the courthouse.
  • (4) While I initially saw a place for anonymous posts, I am now opposed to them. I believe they encourage bad behavior on the part of some people. Some of this behavior, in my opinion, crosses the line into legal “actual malice” when it comes to public figures and officials. Here is an interesting article about anonymous posts: How to Identify Anonymous Bloggers  Also see Podcast: Rexxfield repairs online reputations
  • (5) While running a search, I happened to notice an advertisement for a law firm specializing in online defamation.
  • (6) Freelancers Unit 07 May 2009 California Media Workers
    The California Media Workers Guild voted last summer to form the freelancers unit, the first of its kind that is connected to a local office of The Newspaper Guild, which is part of Communications Workers of America. We intend to build a unit that uses the power of numbers to directly support the needs of independent writers and journalists in all media, including hundreds of workers laid off by Northern California media outlets this year. We also hope to build solidarity between staff journalists and freelancers. To contact us: freelance@mediaworkers.org
  • (7) While this article has focused on the use of the Internet by private individuals. freelancers, and citizen journalists, there is also the question of the use of social media by elected officials under their own name or under a screen name.  See Villa Park Council Weighs Member’s Facebook Post: Free Speech or Too Inflammatory? 

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?

_________________________________

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…