Bloggers Beware: Libel and Invasion
of Privacy
April 18, 2006Writing the
truth, the whole truth and nothing but the truth can keep you out of
trouble — both in your personal and public life — only to a point.
While truth is the defense for libel and slander, it is NOT a
defense for invasion of privacy and the Internet is the new frontier
where not everything is clearly defined.
And even if you consider your blog
a diary, that doesn't keep you safe from character defamation
charges - and the cost could be as much as 23 years of your life.
When the Internet began to gain
public popularity, the issue of libel and slander was fuzzy. Radio
and television broadcasts, if defamatory, are considered slander
under California Civil Code Sec. 46. While television is not
specifically mentioned in the law, the section refers to "orally,
uttered, and also communications by radio or any mechanical or other
means" and this was later taken to cover television.
Why is this important? Because for
slander the plaintiff must prove special damages. Slander is
considered more ephemeral than libel. In the case of libel, damages
are presumed because it is more permanent or "writing, printing,
picture, effigy, or other fixed representation to the eye."
In November of 2003, the Sixth
District Court of Appeal ruled that Internet postings were
considered libel, not slander, under California law. According to an
article that appeared in the Metropolitan News-Enterprise on 14
November 2003, in the case of Varian Medical Systems, Inc, v.
Delfino, H024214, "two former employees [of Varian Associates, Inc.]
posted a series of messages on an Internet bulletin board devoted to
the company's publicly traded stock. The messages maligned the
company's products and suggested that the two executives were
incompetent and dishonest and that one of them, a woman, might have
obtained her position by having sex with a supervisor."
A jury found them guilty of libel,
invasion of privacy, breach of contract and conspiracy, according to
David Watson's article. They were further fined $425,000 for general
damages and $350,000 in punitive damages.
More recently, in Durango, as
reported by Shane Benjamin, writing for the Durango Herald, a "Fort
Lewis College honors graduate was sentenced to a total of 23 years
in prison...after being found guilty of 26 felonies, including
criminal libel."
According to the article, the
38-year-old Davis Temple Stephenson:
... instilled fear and terror into
his victims' lives by spreading lies over the Internet, creating
fake posters and sending phony letters. He usually targeted anyone
in a position of authority: jail guards, a police officer, a
landlord, a college newspaper editor and several Fort Lewis College
professors.
One example of how he victimized
was by creating a Web site in a professor's name, identifying her as
a sexual deviant and asking anyone reading to come rape her. He then
posted the professor's home address.
He also sent a fake obituary to an
Alaskan newspaper announcing that a jail guard had died of AIDS. The
guard was actually alive and well.
Stephenson initially claimed he
thought the First Amendment protected his actions.
More recently, the
WashingtonPost.com was embarrassed when its new right-wing blogger,
Ben Domenech, was forced to resign. His crime? Plagiarism, according
to Liz Halloran's 4 April 2006 article in U.S. News & World Report..
Halloran, wrote that although no claims were made against Domenech
while he was at the Post, the questions raised were about libel.
Rules for libel apply to online
content just the same as if the words were printed on paper. But in
at least two significant areas, the unique nature and worldwide
reach of the Internet are testing other legal precedents established
for hard copy published in the United States.
When are media companies culpable
for libel claims involving online material they publish from
contractors or freelancers? And can foreign courts hear defamation
cases involving online material published by U.S.-based companies?
Think it hasn't happened? A former
UN official was living in Kenya when the Post filed online stories
"saying that he had been investigated from sexual harassment,
financial improprieties and nepotism." When the man then moved to
Canada, he filed a defamation claim in Canada. Canada decided there
was no great connection between this man and his new home and that
"he suffered no significant damage to his reputation in Canada."
The question remains, if you're
writing in one country online are you subject to another country's
laws. Or if your host is in a different country, which country's
laws are you writing under and will your country enforce a judgment
against you?
On a smaller scale, a Wisconsin Web
site, FullofBologna.com, was temporarily shut down by a judge in a
case that involved "anonymous messages on a bulletin board on the
site. She [Winnebago County Clerk of Courts Diane Fremgen] claims
those messages included libelous, sexually explicit comments."
The lawsuit is against the Dennis
Payne who operates the site and "the anonymous participant who went
by the pseudonym, Mr. Imperfect."
Also on the subject of sex and
government workers, according to Associated Press writer Pete Yost,
a lawsuit filed by Sen. Mike DeWine's former counsel to the Senate
Judiciary Committee, Robert Steinbuch, alleges that former Senate
aide Jessica Cutler, invaded his privacy in 2004 by publishing facts
about her sexual relationship with him. . This case may hinge on
whether the case was filed too late (over a year after the material
was online).
In 2002, a retired teacher won a
libel suit against a former student for comments posted on the
Friends Reunited Web site. The comments weren't sexual in nature.
Freedom of speech, the public
diary-style of some blogs and the publication of truth isn't enough
to protect bloggers from lawsuits of libel and invasion of privacy
and those charges could come from readers in nations that are
governed by different laws.
So writer beware. You don't know
who or where your readers are.
|
