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Thursday, May 17, 2007

The price of defamation

Mt. Blogmore has recently announced a decision to edit comments by Sibson. For a time South Dakota War College shut off the anonymous comments feature because PP said he got tired of editing out offensive stuff. Of course, all the ignorant yoyos start screaming censorship. They don't understand that the First Amendment applies to the government, not to private entities that can edit what they publish at their whim.

And the yoyos make all manner of insistences for protecting anonymity. They cannot comprehend that the First Amendment does not license their personal cowardice.

However, what puzzles us is the matter of defamation. In a comment on Mt. Blogmore I noted that part of my duties as an editor for a newspaper was to fact check and edit letters-to-the-editor. There was no question about why we did this. If a statement was made in a letter-to-the-editor that was false and defamatory, the newspaper could be sued. And most state libel laws emphasize the aspect of defamation which hurts people in their business or profession.

As the business editor for a newspaper, I was often called into conferences
with our counsel and business people who claimed that something published in the paper was harmful to their business or profession. In the huge majority of cases, what they complained about was information we had an obligation to publish. It dealt with company financial statements, citations from regulatory agencies, and law suits. A physician, for example, was being sued by a patient for incompetence and he complained that notice of the law suit was defamatory and injurious to his practice.

A few cases were judgment calls. And when the newspaper thought the complainant had a case, we were quick to try for a resolution that did not take us into court. In one such case, a reporter quoted a person in a story who said a local certified public accountant took money to give a government agency a pass on an audit. The newspaper paid and issued a retracting statement. It recognized that the reporter and editors should have investigated the charge for any credibility before putting the quotation in the paper. The fact that the charge was made in a quotation of an individual did not relieve the newspaper of responsibility for publishing.

At that time, the courts were rough on news media that published defamatory information. The last case of prominence we remember that found in favor of a plaintiff against a newspaper was when a supermarket tabloid claimed Carol Burnett was an alcoholic. She sued and won.

That leads to the question of blogs and discussion boards. A professor colleague of ours in an eastern university system decided to research who has responsibility for comments put on internet forums. The responsibility of the publishing agent has not changed. If a blog or a newspaper discussion board permits a defamatory comment, it can be sued.

What has changed is the money. Most people who are defamed find that prosecuting a defamation case will cost them more money than they could hope to obtain from a court case. Legal action is not taken simply because of the cost involved. And many blogs or bloggers would not have the resources to pay a penalty anyway. So, the one restraint on defamatory speech is rendered largely ineffective. Now we are not talking about negative comments that are covered by the fair comment and criticism rule. We are talking about factual assertions that are damaging and untrue.

There used to be a remedy for defamation that resulted in punishment of the defamer called criminal libel. In essence, the idea was that wrongfully tarnishing a person's reputation was in the same category as stealing from them. So, libel could be prosecuted under criminal law. Most states have long repealed criminal libel from their statutes. In the few states that retain them, they are not used. The nuisance factor from people involved in petty squabbles was the issue.

The study on defamatory statements made on internet forums did find some serious cases of libel not covered by any form of privilege.

The study suggests that the only way to deal with such cases is to refine and reinstitute laws on criminal libel. Or to remove the prohibitions against dueling. People who think they have been wrongfully tarnished can call out those who offend them and have at with weapons of their choice. But, of course, the offenders would have to be identified, and that means anyone posting on an internet forum would have to provide their names.

The study points out that the concept of free speech does not cover anonymity and the cowardice behind it. That is not to say that sometimes people, for reasons of personal safety, use anonymity to get out important information, but in the vast majority of cases anonymity is merely the ploy of cowards and reputational sneak-thieves.


Douglas said...

Is the idea that if an online publication does no editing or control whatsoever, but just provides the medium for expression turn it into something like a telephone line where the phone company is not responsible for the content of the calls totally off the wall?

Or does the opposing sides of total control or no control provide a false or non-existent dichotomy?

Much as I think most of Sibson's comments are factually and logically flawed, I also don't see them as being so damaging to other posters or entities as to be libelous.

David Newquist said...


I think your telephone company analogy applies to e-mail and instant messaging. Blogs and discussion boards, however, are sponsored by someone who invites--or rejects--comments and operates an editorial medium.

The study emphasized the way libel applies with a question as to why libel laws do not seem to have much influence on blogs. In any case both the author of messages and the sponsoring individual or organization that can exert some editorial control can be held liable for defamatory content.

You are right in noting that much of what Sibson says is in the area of fair comment and criticism and does not make any factual allegations about the character of others or specific things they have done. However, when he makes statements about professional integrity, mental competence, or moral lapses, he steps into the area where private citizens may take action if they have the time, money, and desire. Of course, public figures fall under a different set of criteria, although recent court cases have found in their favor when allegations against them are untrue and uttered with malice.

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