Libel Blurred
With the emergence of web 2.0, social media has become a mainstream for companies seeking both advertisement and a quick personal interaction with its customers. By the same token, customers have found social media to be an easy path directly to the business they want to contact. One of the main points of social media is that everyone is listening to everyone else. Business has felt the strain here when unhappy clients, no longer relegated to email, voice their displeasure. Companies have been thrust into a kind of “public accountability”. Many, like Comcast, have put employees out there on the web to handle customer complaints in a personal manner. What happens, though, when a customer over-steps the lines from complaint to slander? That question is still very much debatable. Is the web still the Wild West and anything goes, or do law that apply in the physical world apply in the virtual world as well?
Web 2.0 and the Law
The legal dictionary at TheFreeDictionary.com give a definition of libel as this: “ To publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation…” “… it must be a statement which claims to be fact, and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for “general damages” for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called “special damages.””[1]
There are two sides to the aspect of how libel law can and does affect the world of social media. On one hand, the internet is still seen as the Wild West, and as Cole Porter once wrote, “Anything Goes”. On the other hand businesses, large and small alike, view the social media environment as prime space to advertize and grow their business. Any attack on their venture is viewed as bad publicity and potentially harmful to their potential income.
In fact, all opinions aside, the US Supreme Court has stated that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”[2] The battle seems to be, to what degree an individual can be held to for slanderous text. One camp believes that the majority of this is just stating the opinion and is mostly protected by the first amendment, while the other believes that whatever you put into writing, no matter the medium, you are accountable.
The First Amendment, among other things, does protect the freedom of speech. However, there are limits as to what it will and won’t protect. It won’t protect inflammatory words detailed as “fighting words”, obscenity, advocacy of illegal action, or commercial speech. To what level of protection the speech may be eligible depends greatly on the forum used.[3]
Knowing now that not all speech is protected and that the Supreme Court does not consider the net to be the “Wild West”, we must decide who is to be held responsible. Is the individual who put the thought in to text responsible, or are the owners of the social media site to be held censurable for permitting the slander on their site? According to the Communications Decency Act of 1996, “…an owner of a social networking site is not liable for the defamatory statements made about another on their site unless the site owner actively engages in the gathering of information from the user that leads to the defamatory statement.” [4]
In defining what does and does not constitute libel, we now must gain evidence. Anything you put on the web remains there, indefinitely. The question here is, how do we recover that information? E-discovery, or electronic discovery, in the context of computer forensics is defined as: “Computer investigation and analysis techniques to determine legal evidence. Applications include computer crime or misuse, theft of trade secrets, theft of or destruction of intellectual property, and fraud. Computer forensic specialists use many methods to capture computer system data, and recover deleted, encrypted, or damaged file information”[5] In short, every bit of information you have put onto a social media site can be found, and will be used against you in a court of law.
We have a working definition of libel and the means to recover information to prove beyond a reasonable doubt that a libelous or defamatory offence has or had taken place. We have been witness to the severity of statements made in the online world. Not so many years ago, Lori Drew, who was 47 at the time, conspired with her teenage daughter to harass Megan Meier, 13, because of a “falling out” between the two teens. A fake MySpace page, under the name of Josh Evans was created. After befriending Megan and convincing her of having an attraction to and desiring a relationship with her (Megan), the “relationship” turned sour. Harassing messages were left until the last message suggested that “…the world would be a better place without her.” Megan, already being treated for clinical depression, took her own life. Making use of a federal law generally used for computer fraud Lori Drew was indicted by a federal grand jury in May 2008. She pled not guilty to the charges that she had used a phony online identity to trick and taunt Megan.[6] After a short trial Drew was found guilty on three misdemeanor charges. A year later the conviction was over-turned in July 2009.[7] Judge Wu stated that “were Ms. Drew’s conviction to stand, anyone who has ever violated MySpace’s terms of service would be guilty of a misdemeanor.” This would include, as Marian Merritt wrote, “Including every 9-year old who ever claimed they were 13 to create an account. [sic]Or person who used inappropriate language.”[8]
I do agree with Judge Wu. This was indeed the wrong conviction; however, this has thrust the online community and how it can deal with things like cyber-bullying and libel into a vast grey abyss that we have, to this date, only set precedence for and still have no tangible, fully encapsulating laws.
There are two libel suits in which Facebook is or has been involved in. Grant Raphael took his argument with friend Mathew Firsht, to the pages of Facebook. Raphael detailed Firsht’s whereabouts and called into question Firsht’s sexual orientation. For this and other infractions, Firsht was awarded by the court £ 22,000, or in US dollars, a little better than $36,000. Judge Richard Parkes said of the case that this was an “unfortunate dispute between two former friends” before ordering that Raphael paid £15,000 to Firsht for libel, £2,000 for breach of privacy and an additional £5,000 to Firsht’s company. This case is one of the first instances of a successful libel suit for something written online. Jo Sanders, a media lawyer, said: “The significance of this case is that it shows that what you post is not harmless, but has consequences.”[9]
Jack Thompson gained a certain amount of notoriety suing the makers of the game Grand Theft Auto, Take Two Interactive, stating that the game promoted violent activity. Also named in that particular law suit were Wal-Mart and Sony Computer Entertainment. Thompson turned his wrath on Facebook, suing for $40 million, when they (Facebook) had not removed various statements about him. Citing Facebook groups like Jack Thompson should be smacked across the face with an Atari 2600 and other updates that read “I will pay $50 to anyone who punches Jack Thompson in the face. If someone can get a video clip of themselves punching Jack Thompson in the face I’ll PayPal them $50.” Thompson says that Facebook’s decision not to take these posts down have caused him “great harm and distress”. This suit, though, stands little chance of being won, says Parry Aftab. Aftab, a cyber-law attorney, states that as the U.S. Communications Decency Act relieves companies like Facebook from liability based on how clients choose to use the service. Said Aftab, “They are no more liable than the phone company would be for anyone who is calling in a ransom demand,” [10]
Leave it to Courtney Love to spark the first Twitter based libel case. Dawn Simorangkir is a fashion designer living in Austin, Texas. In a claim lodged by Ms. Simorangkir in Los Angeles Superior Court, Love has carried out an “obsessive and malicious crusade” of libel intent on sites such as MySpace and Twitter. Simorangkir claims that Ms. Love has made “Tweets” accusing her of being a “nasty, lying, hosebag thief”; having “a history of dealing cocaine”; having “lost all custody of her child”; and, being guilty of “assault and burglary”. The singer adds that the designer would be “hunted til your [sic] dead”.
Love then posted on a fashion site used by Simorangkir to sell her clothes that Simorangkir was in fact “”The nastiest lying worst person I have ever known … evil incarnate, vile horrible lying bitch.”
Simorangkir argues that the statements made by Love have all but annihilated her business and reputation. The designer states that after Love failed to pay a $4000 bill she stopped working for Love. This evidently enraged Love and led to “an intense level of animosity … well beyond what any reasonable person would consider acceptable behavior”.[11] I personally believe that this case will not be too difficult for Simorangkir to win.
Blogs
Blogs are just as susceptible to libel charges if not more so. Bloggers are being sued for libelous statements not only made by them but also for comments left by readers that are not moderated or removed by the blogger. Michael Arrington is an editor for Tech Crunch online magazine. I is, to say the least, blunt and highly opinionated. Recently, UK courts handed them a default judgment against them for failing to appear in court over accusations of libelous text regarding Sam Sethi, a former editor for Tech Crunch UK. Arrington was advised that fighting this particular case would cost more than $1 million and require a large amount of time away from his business.[12]
Richard Bartholomew is a noted UK blogger on religion, but also blogs on blogging. He had a few interesting thing to saw on what is going on in the UK courts regarding blogging and slander. “…Interestingly, the jury will be asked to rule on whether or not it is libellous [sic] to call somebody ‘one cherry short of a Schwarzwalderkirschtorte’. Not my words, but those of a reader, left in the comments box. If I lose on that point, the consequences for internet freedom of speech are clearly considerable.
In the USA, that last point would be dismissed as meaningless abuse, and in 2007 the High Court in London ruled in another case that some defamatory comments in should not be taken seriously if they are “little more than abusive or likely to be understood as jokes”.
However, and more seriously, if the court considers that Ostler and the other defendants are liable for a comment left by someone else, then everyone who blogs in the UK will have to consider moderating comments, or turning off the comments feature altogether. It’s one thing if a blogger refuses to remove a truly libellous [sic] comment – and if a court order is made to reveal the IP or other details of a commentator then of course the blogger must either comply or face the consequences – but at the moment we’re in an alarming situation. It doesn’t matter if the comment is removed quickly, or if nobody much saw the comment. And what if the comment appears on a defunct blog that the owner (or the owner’s next of kin, if he or she has died) no longer monitors? I had a nasty scare over a comment a few years ago, so I now remove comments that are probably OK but not worth a battle over.”[13] I used this comment in its entirety as it explains, very well, the frivolous nature of much of what the court is dealing with by the way of libel cases.
Recently, a local (Knoxville, TN) business made worldwide notoriety because of its involvement in a social media libel suit. In what has been coined the “The Tomato Paste Libel Case”[14] by Jack Lail, a prominent Knoxville based writer, The Pizza Kitchen is being sued by its former advertizing agency. Allegedly, Travis Redmon, the owner of The Pizza Kitchen, posted on Facebook: “Don’t EVER use Lowandtritt marketing firm.”, and “Crooks – stolen email list and have tried to pressure me by threat of lawsuit to sign a license agreement to use their marketing materials.” Then on Twitter, the next day, Redmon posted, “Lowentritt marketing firm has done it again.” “Can you believe that they have not only stolen my email list but have no hacked Pizza Kitchen’s facebook page taking it offline?”[15] Redmon carries 279 fans on Facebook and 310 followers on Twitter. Given the fact that both of these accounts are open, anyone of the millions of users on these applications has the ability to see these posts. You have here the potential to do some very serious damage to someone’s business over a post made in angry haste.
Lowentritt will have the burden of proof here, in that they must prove lost business and tarnished reputation.[16] Given the unlikely possibility that a small advertising firm could or would surgically remove a single facebook page not belonging to them, I believe that Redmon should bear some of the burden, and prove that Lowentritt did, in fact, somehow manage to temporarily stop Redmon’s Facebook fan page.
A site called Yelp.com is a service oriented site that people can go to and review people and companies whose services they have retained. Positive reviews on sites like these can help to increase business for these professionals. Inversely, a bad review can hurt business as well. Christopher Norberg reviewed a chiropractor that he had seen and made a comment about the business using unfair practices when dealing with insurance companies. Steven Biegel, a chiropractor forAdvanced Chiropractic Center, sued Norberg for invasion of privacyand libel. This case was settled out of court.
In Januray 2009, Yvonne Wong, a dentist from Foster City CA, sued two parents of patients who said that the fillings used on their children contained mercury.[17] Not much more has been see of this case.
There is a growing trend of law suits over statements of fact, and fancy. There is not yet a steadfast law concerning libel in social media, and I doubt that we have the ability to create one just yet. Certain judges see much of social media and frivolous opinion and brush off these cases. Others believe that such frivolity seriously oversteps peoples First Amendment rights. Precedence will continue to be set, here and there, and those will be used to more closely scrutinize the interpretation of our present libel/slander laws. One thing is for certain though; We are watching the beginning of the loss of the “laissez fair” freedoms that we have enjoyed on the internet for the past 20 years.
[1] For People’s Law Dictionary:
libel. (n.d.) The People’s Law Dictionary. (2005). Retrieved November 29 2009 from http://legal-dictionary.thefreedictionary.com/libel
[2] Blogger’s Legal Guide: Online Defamation Law (2007), http://www.eff.org/issues/bloggers/legal/liability/defamation
[3] First Amendment | LII / Legal Information Institute, http://topics.law.cornell.edu/wex/First_amendment
[4] IP Law 101tm, Defamation and Social Media (June 2009), Phillips Givens, LLC, http://phillipsgivenslaw.blogspot.com/2009/06/defamation-and-social-media.html
[5] e-Discovery & Metadata Definitions, Lexbe-Litigation Unleashed, http://www.lexbe.com/hp/define-e-discovery-metadata.htm
[6] Megan Myer, The New York Times (Dec 2009), http://topics.nytimes.com/topics/reference/timestopics/people/m/megan_meier/index.html
[7] Judge overturns guilty verdict in MySpace suicide case, Guardian.co.uk (July 2009), http://www.guardian.co.uk/technology/blog/2009/jul/02/lori-drew-myspace-acquitted
[8] Lori Drew Conviction Overturned Today, Norton form Symantec (July 2009), http://community.norton.com/t5/Ask-Marian/Lori-Drew-Conviction-Overturned-Today/ba-p/113788;jsessionid=07FDBE7EA69BED9753C04D735338EC76#A382
[9] Libel: Ex-friend’s Facebook revenge costs £22,000 in damages at high court, Guardian.co.uk (July 2008), http://www.guardian.co.uk/uk/2008/jul/25/law.facebook
[10] Jack Thompson sues Facebook for $40M, Good Gear Guide (Jan 2009), http://www.goodgearguide.com.au/article/320607
[11] Love’s online spat sparks first Twitter libel suit, The Independent (March 2009), http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first-twitter-libel-suit-1656621.html
[12] TechCrunch editor defaults in libel case by former employee, VentureBeat.com (Aug 2009), http://venturebeat.com/2009/08/03/techcrunch-editor-defaults-in-libel-case-by-former-employee/
[13] Blog Libel Cases in the London High Court, Bartholomew’s Notes On Religion (Oct 2009), http://barthsnotes.wordpress.com/2009/10/12/blog-libel-cases-in-the-london-hight-court/
[14] The tomato paste libel case, Random Mumblings (Oct 2009), http://www.jacklail.com/blog/archives/2009/10/the-tomato-paste-libel-case.html
[15] The Pizza Kitchen faces social media libel lawsuit, VolunteerTV.com (Sept 2009), http://www.volunteertv.com/news/headlines/60048807.html
[16] Local restaurant owner facing $2 million libel lawsuit for online posts, WATE.com (Oct 2009) http://www.wate.com/global/story.asp?s=11250531
[17] Post on an Online Review Site and Get Sued for Libel, Fine-Tuned Finances (March 2009), http://www.finetunedfinances.com/2009/03/post-on-an-online-review-site-and-get-sued-for-libel/
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