You can call this California decision a great victory for free speech on the Internet. Or you can call it condescending.
Anyone who publishes a book, a magazine, a newspaper or a mimeographed newsletter in this country is subject to libel laws. We try to practice caution in my business. The lawyers have told me in the past that while wire service customers are protected from being sued over wire material, adopting someone else's libel does not give protection simply because someone else published it first.
Free speech is great, but with it comes responsibility. A lot of responsibility. As some in my profession could tell you, hundreds of thousands of dollars and people's reputations worth of responsibility.
So, is this a legal diaper for California bloggers? I'd like to hear from some lawyers on this.
Update: Volokh's view. Instapundit likes it and calls it a victory for blogs, which appears to be the general consensus online.
I'm curious about what looks like a decision by the federal government to create separate libel standards for cyber vs. print media in order to accommodate corporate servers at one end and free-speaking individuals at the other end. Lacking a law degree, I don't know if that is actually what is happening here and would like to see others with expertise discuss whether (A) it is happening and (B) it ought to happen. People may like their Internet unhindered by legal niceties, but that means people can't complain if others start spreading malicious falsehoods about them. Like mom used to say, it's all fun until someone gets an eye poked out.
And if so, then (C) ... Are newspapers' online entities operating under different, more liberal rules than their print product? Interesting.
Update: Michelle Malkin sees a double standard, too.
Monday, November 20, 2006
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6 comments:
Did you notice the unwitting irony in the article?
"Even though the court recognizes that it could have unfortunate consequences, they're saying that Congress controls this area," said Carl Tobias, a law professor at the University of Richmond.
I rather daresay *especially* a Republican-controlled Congress, in the opinion of this particular court. I guess they felt they could do that now that the Congress is safely in Democrat hands for the next two years.
Or izzat a libelous and defamatory statement?
Not a lawyer, but I've been a legal assistant for some years now. The article isn't as specific as I'd like, but, it sounds like the ruling applies only to website postings that were not authored by the site's host or the site's author, i.e. "comments" posted on a blog. There is some cause for web companies to desire such protection.
For example, you wouldn't want to be held responsible for libel I post as a "comment" on your blog. And Amazon.com doesn't want to be held responsible for a "reader review" that lies about the author of a book that Amazon is selling.
On the other hand, most blogs and most corporate websites (such as Amazon) reserve the right to delete obscene, harmful, or (I suppose) libelous posts. Under this ruling, they wouldn't have to police their own websites anymore. One could argue that they should bear the responsibility of policing their own sites because, after all, there are filters and other programs that give them the ability to do so with some efficiency.
The problem is, how do you filter out libelous material? You really can't, but you can delete it. According to the article, the website host was warned (by the victim) that the e-mail was libelous. A newspaper would have to research the issue and prove/disprove the claim, at the very least. Amazon.com can just ignore the issue, under this ruling. It seems like anything goes, on an Internet site, so long as the site host/author is not the writer. "The views expressed herein do not necessarily reflect those of the site host."
Well, I'm not a lawyer either, but if you read the text at the end of the article the Supreme Court's ruling sounds consistent with the bulk of other rulings on similar cases:
The trial court ruled that Rosenthal's actions were protected, but an appeals court decided she was not shielded from liability as a distributor of the information. The state Supreme Court's ruling reversed that decision.
Legal experts said the ruling follows similar decisions in other states designed to protect free and open access to information.
While I agree bloggers should be careful about what they pass on, I would think that holding site owners responsible for reposting libelous content could get very messy given the ubiquitous practice of hat tipping in the blogosphere. That's why bloggers retract things all the time.
The question is, how often does the AP do that?
/snark...
I don't really have a dog in this hunt, since I haven't started my blog yet, but I do have a minor quibble: this was the State Supreme Court, not "a federal court"; minor but important, Mr. Crittenden.
Ernie, check the Volokh citation for chapter and verse. The Calif. court ruled on federal law.
Malkin/Volokh are/were very helpful. Much clearer than the news article.
The corporate/service providers/web hosts are already protected by prior precedent, if what Malkin/Volokh say is true. As are the 'free-speaking individuals' insofar as they are posting their own words. At issue here, then, is strictly the re-publishing of libelous material by the third party (Rosenthal).
What I see here is an activist interpretation of Section 230. As noted by Malkin/Volokh, Section 230 reads: 'Federal law, 47 U.S.C. § 230, provides that "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."'
The court let Rosenthal get off scot free because her 'source' was "the scathing missive, written by Tim Bolen" (AP Wire), as if Tim Bolen were "another information content provider" under Section 230, whereas I would say Tim Bolen doesn't qualify as an 'information content provider' but is a free individual engaging in the act of public libel -- libel which was then actively disseminated by Rosenthal, but perhaps only passively disseminated by the host blog or website.
Section 230, as I read it, is supposed to protect, say, Time Magazine.com when it re-publishes content provided by, say, Webster's Dictionary(.com). And it protects Matt B. (me) when I visit Time Magazine.com & post a comment citing Webster's Dictionary(.com). I don't see how it can be extended to cover Matt B. when he re-posts John Doe's accusation that J. Crittenden has been behaving badly!
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