Peter Black's Freedom to Differ

Anonymous defamation

The New York Daily News reports on a lawsuit against Google, as host of Blogger.com:

A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a "skank" and an "old hag."

Liskula Cohen, a blond beauty who has modeled for Giorgio Armani and Versace, made headlines last year when a doorman at a Manhattan hot spot was jailed after smashing her in the face with a vodka bottle.

Now she wants to force Google to reveal who slammed her online as the "#1 skanky superstar" on a blog hosted by the search engine's subsidiary.

"It's petty, it's stupid and it's pathetic," Cohen said of the sniping. "And when I do find out who did this, at least I'll know who my enemies are."

The defamation suit, filed in Manhattan Supreme Court, seeks a court order compelling Google and its Blogger.com service to identify whoever led the vicious Internet assault against Cohen.

Her lawyer Steven Wagner conceded it's not easy to identify bloggers who lob insults anonymously, as New York courts have generally declined to force them into the light.

"We think we have a case," he said. "This is libelous, it's defamatory and you shouldn't just get away with this."

Read more here.  Ars Technica summarises in lay terms the legal hurdles presented by this case:

Since the blogger is anonymous, however, there is an extra legal hurdle between Cohen and whatever financial revenge she seeks.

That hurdle would be Google and its army of lawyers. Essentially, Cohen has to demonstrate defamation twice: once to show that she has a sufficient case that the identity of the blogger should be unmasked. At that point, the case could proceed against the actual author of the blog, at which point the defamation would have to be demonstrated all over again. None of this will be easy, as US courts generally set a high standard for defamation of public figures, and Cohen has made a name for herself in ways that go beyond modeling by getting hit in the face with a vodka bottle at a Manhattan club.

As a result, the case appears to be an uphill battle, which means both that nothing is likely to come of it and that, should something unexpected happen, the legal context makes it likely that the decision will further muddy the waters when it comes to determining the legal status of bloggers.

Read more here. 

It is interesting to consider what the legal position would be if this had occurred in Australia, as I think it would be easier for Cohen to obtain relief.  That is because Cohen would be able sue Google for defamation.  In the US, Google has immunity courtesy of s 230 of the Communications Decency Act, however no such immunity exists in Australia and Google would be unlikely to be able rely on the defence of innocent dissemination.  However, even if Cohen did not sue Google, she would be able to use the threat of a lawsuit as leverage to require Google to disclose the identity of the anonymous blogger.  And ultimately that is where these sorts of lawsuits should be fought - between the person alleging defamation and the party who posted it to the internet - without involving the intermediaries or platforms who should not be liable for what others post to that intermediary or platform.

Linking is not defamation

Earlier this week British Columbia Supreme Court Justice Stephen Kelleher delivered an important ruling for free speech on the internet.  In Crookes v Wikimedia Foundation Inc., 2008 BCSC 1424, Wayne Crookes sued Jon Newton, the operator of  p2p.net, for defamation for linking to four articles that Crookes alleged were defamatory.  Justice Kelleher ruled that where it is just a link to a defamatory article this does not amount to republication and is therefore not defamation.  Here as part of his Honour's reasons:

[25] That brings me to the second issue, whether creating a hyperlink to defamatory material is publishing the defamation.
[26] In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, the Court of Appeal considered whether publication of a web address or "URL" in a newsletter constituted publication of the contents of the website.  The Court of Appeal held that it did not ...
[27] Thus, the court declined to rule on whether publication of an internet location by a hyperlink amounts to publication of the contents of the linked website.
[28] That is the question that arises squarely in the present case.  I agree with the defendant that footnotes in an article are an apt analogy.  Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.  
[29] A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter.  The purpose of a hyperlink is to direct the reader to additional material from a different source.  The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.  
[30] Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site.  This is especially so as a reader may or may not follow the hyperlinks provided.  
[31] I conclude that the reasoning of the Court of Appeal in Carter leads to the same conclusion on the narrower issue before me.  Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website.  I conclude that that does not make the publisher of the web address a publisher of what readers find when they get there.  
[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself.  The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles.  In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.
[33] As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.
[34] I do not wish to be misunderstood.  It is not my decision that hyperlinking can never make a person liable for the contents of the remote site.  For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion.  
[35] I conclude that there has been no publication.  The action is therefore dismissed.

Read the judgment here.

Defamation on Facebook

As if to demonstrate Judge Ryrie's point from my previous post about the uncertainty of Facebook pages ("that anyone can create an identity that could mimic the true person's identity"), I then read this story about a defamation case in the UK centred around a fake Facebook page:

A businessman whose personal details were "laid bare" in fake entries on the Facebook social networking website has won a libel case at the High Court.

Mathew Firsht was awarded £22,000 in damages against an old school friend, Grant Raphael, who created the profile.

The judge ruled that Mr Raphael's defence - that the entry was created by mischievous party gate-crashers at his flat - was "built on lies".

The profiles were on Facebook for 16 days until they were taken down.

Mr Firsht accused Mr Raphael of creating a false personal profile, and a company profile called "Has Mathew Firsht lied to you?".

Mr Raphael claimed that "strangers" who attended an impromptu party at his house in Hampsted in London sneaked off to a spare bedroom and created the profiles on his PC.

The judge heard that the private information concerned Mr Firsht's whereabouts, activities, birthday and relationship status and falsely indicated his sexual orientation and political views.

Bearing a grudge

Mr Firsht complained about allegations that he owed substantial sums of money which he had repeatedly avoided paying by lying, and that he and his company were not to be trusted.

Deputy Judge Richard Parkes QC awarded Mr Firsht £15,000 for libel and £2,000 for breach of privacy.

Mr Firsht's company, which finds audiences for TV and radio shows and provides warm-up services for live audiences, including the evictions on Big Brother, was awarded £5,000 for libel.

He accused Mr Raphael of bearing a grudge against him since they fell out in 2000 and of creating a false Facebook entry with the aim of causing him anxiety and embarrassment.

Read more here (from BBC News).

Section 230 immunity and the Roommates.com case

Larry Downes looks at the section 230 immunity and the Roommates.com case:

I write in this month’s CIO Insight about the 9th Circuit’s en banc decision in the Roommates.com case. This important decision tested the limits of immunity for information service providers (in this case, the operator of a website that allows users to post roommate-matching ads) under Section 230 of the 1996 Communications Act. At issue was whether Roommates.com could be sued under fair housing laws for asking users about their age, sex, sexual orientation, whether they have children and their preferences for these characteristics in a roommate. Eric Goldman has an excellent post on the case at his website: http://blog.ericgoldman.org/archives/2008/04/roommatescom_de_1.htm

Writing for the majority, Chief Judge Kozinski held that the service was not entitled to immunity (the merits are yet to be decided) because the site was a “developer” of the potentially-illegal content. In short, Kozinski distinguished free-form text boxes (immunity intact) from drop down menus that offered only limited choices. The drop down menus, the court held, are not immune, because they cross the line between hosting and assisting in the development of the content, and Section 230 applies only to the former.

I’m troubled, as many people are, by the decision and some of its dicta. In particular, Footnote 15 signals increasing judicial resistance to the Section 230 safe harbor. It also falls into the trap of judges assuming they know more about the information economy than they do:

“The dissent stresses the importance of the Internet to modern life and commerce, Dissent at 3476, and we, of course, agree: The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant—perhaps the preeminent—means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congres and thus give online businesses an unfair advantage over their realworld counterparts, which must comply with laws of general applicability.”

Kozinski cites nothing to support these comments. But what does it even mean to say that the Internet has become “a dominant…means [can there be more than one dominant mean?] through which commerce is conducted”? Despite double-digit growth for over ten years, e-commerce still only accounts for well under 10% of retail activity. And I can’t even find a measurement for services revenue, which Roommates.com represents. Which is to say, as far as I can determine, “the Internet” is still a fragile new means of communication.

Read more here.

Mercedes Corby wins

Mercedes Corby has won her defamation against Today Tonight:

Mercedes Corby has won her defamation case against Channel Seven.

Corby, sister of Schapelle Corby - jailed for attempting to smuggle marijuana into Bali in 2004 - had claimed that she was grossly defamed in the Today Tonight programs.

The claims were that she had asked her then best friend, Jodie Power, to smuggle drugs into Bali; that she had confessed, herself, to smuggling marijuana; that she was guilty of smuggling marijuana; that she was knowingly involved in Schapelle Corby's smuggling and that she had possessed marijuana.

Ms Corby further complained that the program conveyed the meaning that she was a threat to the safety of Ms Power, who had made strong claims against her and the Corby family in the television programs and that Ms Corby had denied Schapelle Corby's lawyers the chance to prove Schapelle's innocence.

Read more here (from the Sydney Morning Herald).

"Rumour Has It"

The Washington Post charts the evolution of gossip to Juicy Campus and wonders what the law can do:

"I am suggesting that language evolved to allow us to gossip . . . to facilitate the bonding of social groups . . . it mainly achieves this aim by permitting the exchange of socially relevant information."

-- Robin Dunbar, "Grooming, Gossip, and the Evolution of Language" (1996)

"RE: Sluts Sluts Sluts

"I think that loud mouth girl from Starbucks is ALSO qualified to be in the listing above . . . No question that girl is nuts! I think my friend said her name was Cinthya."

-- post on JuicyCampus.com (2008)

When gossip clown Perez Hilton gossips on his blog about the stars of "Gossip Girl," we wonder how far we've come in spite of technology. The absurd self-reflexivity, the gazing at one another's navels, the swirling infinity of gossiping about a show about gossip -- it's like that snake that eats itself. And what are we left with? A reptile gagging on its own business.

Celebrity gossip, which clogs checkout aisles and runs wild in cyberspace, overshadows a more integral (and fascinating) form of gossip: the person-to-person kind, the overheard whispers, the pedestrian skinny. Gossip has been around forever, and, for almost as long, it has been labeled a vice. Moses descended Mount Sinai with a sub-commandment forbidding the bearing of tales. German philosopher Martin Heidegger dismissed gossip as a waste of energy. Only in very recent history have researchers and journalists started writing pieces with heretofore provocative titles.

"Gossip May Be Virtuous."

"Why Gossip Is Good for You."

"In Praise of Gossip: Indiscretion as a Saintly Virtue."

These conclusions are akin to the Food and Drug Administration reporting that fried dough is, in fact, nutritious, and the more you eat, the longer you'll live. But what does it all mean when it mutates on the Internet, spreading swiftly and sensationally?

For much of this year, college newspapers and m edia commentators have hemmed and hawed over JuicyCampus.com, a Web forum that provides a blank slate on which students can write anything they want about anyone. While the site attracts a large share of lurid, hateful and nonsensical ramblings (the stuff you'd find anywhere on the Internet), there is also gossip that includes full names and sordid details. Since its birth in August, JuicyCampus has courted the outrage of students who claim defamation and of state attorneys general who claim consumer fraud.

The site's 24-year-old founder, Duke University alumnus Matt Ivester, thinks it's all very natural. Social networking has moved online. Shouldn't gossip be a part of that?

"People talk about us being the opposite of Facebook and MySpace," notes Ivester, who says the site gets tens of thousands of hits a day. "We're completely anonymous. There are no profiles. We're filling that void. . . . People love celebrity gossip, and in many ways what we're doing is changing from Hollywood celebrities to campus celebrities."

This may be a vainglorious claim on Ivester's part, but Internet gossip might be a tempting venture for someone searching for "some kind of false and illusory prima donna status," as college senior Gregory N. Wolfe, 21, worded it in a column about JuicyCampus this year for the Cornell Daily Sun. Wolfe thinks JuicyCampus, apart from its innocuous ramblings, is damaging to communities because charges are unanswerable and viewed by thousands of people who have no reference point.

"At least in the typical telephone gossip you have source attribution, you know who's trustworthy," he says in a phone interview. "But you don't get this here, and you can't answer to it."

Instead of making the rounds in one social circle, Internet gossip jumps among them, and the information loses essential background information and credibility. "Traditional gossip occurs in a context, among people who know the person being gossiped about," writes George Washington University law professor Daniel Solove in his book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet." "But the Internet strips away that context, and this can make gossip even more pernicious."

Which is exactly what JuicyCampus does. Solove considers the site to be a paradigm of problems created when gossip and the Internet intersect: The site is not liable for anything users post, and the users are generally protected because they are anonymous. The rights of privacy and free speech engage in a confounding tango, and Solove thinks privacy is being compromised a little too much.

"I've thought long and hard to come up with an elegant solution . . . but there really isn't anything," he says. "There isn't a law that will make everyone play nice. At best the [existing] law can push norms in one direction or help raise awareness of a problem."

Read more here.

Wikipedia seeks CDA immunity ... and should get it

Wikipedia seeks immunity under the Communications Decency Act:

Online encyclopedia Wikipedia is asking a court to dismiss a libel lawsuit brought by literary agent Barbara Bauer, who alleges that she was described as "The Dumbest of the 20 Worst" in an article.

In papers filed in a New Jersey state court last week, Wikipedia argues that it is immune from liability under the federal Communications Decency Act. That law generally provides that Web sites can't be sued for comments posted by users.

"It's clearly the case that we have a statutory immunity and I expect that we will demonstrate that to the court," said Mike Godwin, general counsel at Wikipedia's parent company, the Wikimedia Foundation.

The case stems from a 2006 article about Bauer's company, the Barbara Bauer Literary Agency. She alleged in her lawsuit that the Wikipedia article libeled her by calling her "The Dumbest of the Twenty Worst" literary agents and asserting that she has "no documented sales at all."

..

There are few, if any, other instances where Wikipedia has been sued for libel in the U.S.--despite the fact that all content on the site is submitted by users and edited by volunteers. But even without a clear track record of lawsuits against Wikipedia, other court decisions interpreting the Communications Decency Act give the site solid cause for optimism that the case will be dismissed, according to Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "There is no doubt that Wikimedia qualifies for (immunity) for any claims based on user submissions or edits to Wikipedia, and I would expect any associated lawsuit against Wikimedia alleging libel to be tossed quickly," he said.

Wikipedia also argues that the case should be dismissed because some of the alleged comments complained about are opinions, which courts have said can't be considered defamatory. "Calling people 'dumb' is not libelous," said Matt Zimmerman, a lawyer with the Electronic Frontier Foundation, which is part of Wikimedia's legal team.

Read more here (from Media Post).

Record online libel damages awarded in UK

The Guardian reports on record online libel damages awarded in the UK:

A social housing firm and its owner have been awarded the UK's highest internet libel damages at the high court after an anonymous news and discussion site agreed to pay £100,000 compensation following a campaign of defamation and harassment.

Gentoo, formerly the Sunderland Housing Group, became the subject of an attack by "a seriously defamatory, abusive and scurrilous anonymous website at dadsplace.co.uk", according to a statement read in open court by the organisation's counsel, Hugh Tomlinson QC, before Mr Justice Eady today.

"From behind their cloak of anonymity, Dads Place used their publications and in particular the website to conduct a malicious, unpleasant and relentless campaign of libel and harassment," Hugh Tomlinson QC told the high court.

...

Tomlinson told the high court: "Those responsible for the publication of the Dads Place Publications took careful steps to conceal their identities and it took many months of painstaking investigation to identify just some of those responsible for Dads Place and bring proceedings against them.

"As a result of those proceedings the website was finally shut down in July 2006."

[Gentoo chief executive, Peter] Walls added: "It has taken us almost three years for this company to achieve this crucial result. There is no doubt that the internet can be a fantastic tool for good but we urgently need legal change to enable victims of internet abuse to have a quicker and more effective route to justice."

Olswang associate Ashley Hurst, who acted for Gentoo and Walls in the case, called for a code of conduct for web publishers.

"It is difficult to see how the government can legislate effectively in this area because technology moves faster than the courts and there are always new technical loopholes to exploit," Hurst said.

"But one option may be to develop the remit of the Press Complaints Commission, or develop a voluntary code of conduct so that at least reputable websites can distinguish themselves from the rogue ones by signing up to the code as a badge of credibility."

Read more here.

Still immune?

Having blogged about Juicy Campus several times over the past few weeks (see here, here, here and here), I thought Daniel J Solove's post at Concurring Opinions asking whether the Roommates.com case would affect the s 230 immunity for  Juicy Campus:

The U.S. Court of Appeals for the Ninth Circuit (en banc) has just issued a very interesting opinion interpreting a federal law providing immunity from liability for online speech -- the Communications Decency Act (CDA), 47 U.S.C. § 230. The case is Fair Housing Council v. Roommates.com, LLC, 2008 WL 879293 (9th Cir. April 3, 2008) (en banc). 

The CDA § 230 states: "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." Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

I have been critical about the way that this statute has been interpreted:

Unfortunately, courts are interpreting Section 230 so broadly as to provide too much immunity, eliminating the incentive to foster a balance between speech and privacy. The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as well as to engage in online shaming. These websites thrive under Section 230’s broad immunity.

The Roommates.com case suggests a limit to § 230 immunity that some might believe creates a way to hold sites like JuicyCamus.com responsible for the gossip and rumors they solicit. In the end, I don't believe that Roommates.com will save the day and penetrate § 230's armor for sites like JuicyCampus.

Read more here.

Law & Order sued

The New York Times describes the libel case being leveled against the producers of Law & Order:

In the criminal justice system of television’s “Law & Order,” the plots are inspired by two separate, yet equally important, groups: the television writers who craft the intricate if sometimes convoluted episodes, and the real-life characters who inspire those writers. This is one of their stories.

Ravi Batra, a Manhattan lawyer, filed a lawsuit in 2004 against Dick Wolf, the creator of the television series, arguing that the plot of a November 2003 episode included an unsavory character, Ravi Patel, who is modeled on Mr. Batra. In a decision made public on Wednesday, Justice Marilyn Shafer of State Supreme Court in Manhattan rejected a motion by Mr. Wolf’s lawyers to dismiss the lawsuit.

Read more here.

More on Juicy Campus

The New York Times covers some of the legal issues surrounding Juicy Campus, a site I have blogged about a few times over the past few weeks (see here and here):

... Juicy Campus [is] an eight-month-old Web site (JuicyCampus.com) that cultivates and distributes gossip across a network of 59 college campuses. Promising that all posts will be anonymous, it allows students to participate in a collegiate version of celebrity gossip sites like TMZ.com and PerezHilton.com; it is a dorm bathroom wall writ large, one that anyone with Internet access can read from and post to.

...

For many students who have been written up on Juicy Campus, even those who are accustomed to posting provocative pictures on Facebook photo albums and drunken videos on YouTube, the experience has been a formative lesson that an online reputation is as much a part of one’s permanent record as a grade-point average or a credit score.

“Juicy Campus is really just an exclamation point following everything that’s already been going on,” said Daniel J. Solove, an associate professor of law at George Washington University who specializes in online privacy.

College students, he said, aren’t “thinking about the consequences because they haven’t experienced them yet and because they weren’t warned by their parents, who didn’t experience them, either.”

Despite their distaste for the site, some legal experts believed  Juicy Campus could not be sued for gossip posted by its users.

“Legally, Juicy Campus is fully, absolutely immune, no matter what it runs on its site from users, just like AOL is not responsible for nasty comments in its AOL chat rooms,” said Michael Fertik, a graduate of Harvard Law School and the founder of reputationdefender.com, a service that helps clients remove defamatory material about themselves from the Internet.

But he added that the Communications Decency Act of 1996, which provides the site legal protections, was “functionally Mesozoic” in the blogging age. Juicy Campus, he said, “is not encouraging people to be themselves, it’s encouraging people to be the worst version of themselves.”

Even if such options were open to him, the Yale student whose pornographic past was exposed on Juicy Campus said he would probably not take action against the site. “Revenge means focusing on someone else, when what I need to do is take care of myself,” he said. “I’m not a gossip person, which means I’m not a counter-gossip person, either.”

The day after his history was revealed, he changed the photograph on his Facebook profile to one of himself giving viewers a halfhearted thumbs up.

Read more here.

JuicyCampus.com ... only in America

The Washington Post's Marc Fisher describes an entry about a University of Virginia (U-Va.) student on JuicyCampus.com, a website that urges college students to "give us the juice" anonymously:

[it] names [her] and says she "will sleep with any guy." This sort of post has given JuicyCampus -- which features message boards for 50 colleges, including the recent additions of U-Va. and the Naval Academy in this area -- instant notoriety and the sadly resulting success.

The subject of that posting, a junior at the Charlottesville campus, didn't know that a thousand people had read the slur against her until I told her about it.

"Initially, I wasn't too concerned about it, although I did get angrier the more I thought about it," she says. "Everyone I know feels that the Web site merely serves as an outlet for petty and immature people who have nothing better to do with their time."

Not wishing to be associated with sexual sleaziness for the rest of her life, she contacted JuicyCampus asking that her name be removed.

Nothing doing. JuicyCampus guarantees anonymity to those who slime others, but disavows any obligation to those who are maligned on its pages.

From the site's FAQ:

" Is the site really anonymous?"

"There is no way for someone using the site to find out who you are. And we at JuicyCampus . . . prefer not to know who you are."

" How do I remove a comment I posted?"

"You can't. Once it's out there, it's out there."

The article goes on to look at the legality and morality of the site:

If the offending post is about you, too bad. "JuicyCampus does not remove content," the site says. "We encourage you to shift your point of view. . . ."

Legally, JuicyCampus is protected by a 1996 law that shields Web site operators from responsibility for nasty, defamatory or false material their readers might post.

And morally? The founder, Matt Ivester, a 2005 Duke University graduate who launched the site in August, delights in telling interviewers that his business is just "a fun place to hang out" and bears no responsibility for any slanders.

But you'd expect that of the creator of such a business.

While it is legal under US law, it perhaps surprising that many students seem to accept that they can't really do anything about being named on the site:

"I haven't heard any cry for action," says Daniel Colbert, executive editor of the campus Cavalier Daily and author of an editorial urging students not to post schoolmates' names on the site. "I'm in the journalism industry, so we tend to believe you should be responsible for what you say, but a lot of people in our generation don't have that idea. They don't expect that something that's published should be true."

"Students are more used to this kind of information being out there than the parent generation," says Lauren Tilton, president of U-Va.'s student council. "It's the nature of the Internet."

The student government at Pepperdine University asked administrators to block the site from school computers, and students at Texas Christian University appealed to advertisers not to buy space on the site. But at most colleges where the site has exploded in popularity, deans recommend combating bad speech with good speech, or just ignoring the site and hoping it will go away.

"We don't want to and we can't inhibit speech," says Pat Lampkin, U-Va.'s vice president for student affairs. "Do we condone what's on the site? Absolutely not. We see the harm things like this cause. We'd rather see a discussion about owning your own words."

Read more here. 

It is worth noting that the 1996 law that the article refers, s 230 of the Communications Decency Act, has no Australian equivalent.  As such, if such a site was set up in Australia soliciting juicy gossip from Australian university students, the site would find itself in legal trouble.

Update: I just noticed this post on the Juicy Campus Blog (note the "boring" bit added to the end):

Hate isn't Juicy.  A letter from the Founder of JuicyCampus.com

Hey Juicy Campers,

Thanks so much for your support over the past few months! We’ve grown bigger and faster than we ever expected, and we owe it all to you.

You’ve posted thousands and thousands of messages spanning a whole wide range of juicy topics. There are hilarious posts about drunken antics, helpful posts about classes and professors, and thought provoking posts about race, gender and sexuality. As you know, the site is pretty entertaining now!

Unfortunately, it hasn’t all been fun and games. Some of the things that have been posted have been mean-spirited, and we have received emails from people claiming to have been defamed on the site. Our hope for the site has always been that JuicyCampus would be a place for fun, lighthearted gossip, rather than a place to tear down people or groups.

We want you to be able to post about the topics that are most important, interesting and entertaining to you. We want you to share truthful stories about the hilarious things that you and your friends are doing on the weekends. We want you to post about the real-life scandals that are happening in Student Government, and in the Administration. We want you to give your opinions on the best and worst classes and professors. We want you to make JuicyCampus Juicy, not hateful.

So, we appeal to you to keep JuicyCampus the fun place that it was meant to be. Please consider whether your post is entertaining or just mean, and whether using a person’s full name really adds value, or if it would be just as juicy as a blind item. Remember that words can hurt, and the people you are talking about are real. Ultimately, JuicyCampus is created by our users, and we ask that you please take this responsibility seriously.

Keep it Juicy,

Matt Ivester
Founder, JuicyCampus.com


A (boring) note from our lawyers:

All users of JuicyCampus.com are subject to JuicyCampus.com’s Terms and Conditions, which can be read here. 

Please be advised that Juicy Campus is not the author of the posts that appear on the site. Rather, Juicy Campus is the provider of an interactive computer service. As such, pursuant to 47 U.S.C. Section 230, Juicy Campus is immune from liability arising from content posted by users.

Read it here.

Facebook defamation Down Under

Australian IT reports on what is apparently the first Australian case where Facebook has been met with threats to sue:

A VICTORIAN man has published public apologies in two major papers after comments he made about a family through his Facebook page.

The public notices have cost the man about $400 after he was threatened with suits for defamatory allegations against individuals he had known some years before.

While contacting an "add friend" through his Facebook page, the man sent a private message making the allegations of criminality.

But his new Facebook friend was also a friend of the family he was making the allegations against, and the message was passed on to others across two states.

Defamation expert Brian Walters, QC, said it was the first Australian case he had heard where the social networking site had been met with threats to sue.

But Mr Walters said the internet and social pages were a minefield for defamation.

"For a case of defamation you just need to communicate from one person to another," he said.

"The problem with the internet is it's so easy for people to write anything on it and it's so instant and far reaching and difficult to control."

In his published apology, the man said the allegations were false and offensive.

"They were said out of haste and did not reflect the truth and I regret making them," he said.

Read more here.

Real estate, Google and defamation

From The Age:

'So sue me' taunt to agents over 'defamatory' web articles

Peter Gregory

CONSUMER advocate Neil Jenman has called on two South Yarra real estate agents to sue him for defamation after they launched legal action to stop internet access to two of his articles.

Paul Castran, managing director of the firm Castran Gilbert, and the company's sales director Mark Forytarz say they have been defamed by allegations of improper or illegal behaviour.

The allegations are contained in two articles from Mr Jenman's website, which could be seen when the agents' names were entered on internet search engine Google.

A Supreme Court statement of claim lodged in December said they sought action by Google to remove access to the articles, but it was not done.

The claim said the first article depicted Mr Forytarz as an unscrupulous and unethical real estate agent.

It said the article suggested he bullied and badgered a severely brain damaged man into selling his house to earn commission — for himself and his agency — of hundreds of thousands of dollars.

"(Mr) Forytarz has been gravely injured in his reputation and feelings, and has suffered distress, embarrassment and humiliation, and has thereby suffered and will continue to suffer loss and damage," the document said.

The claim said the second article suggested Mr Castran repeatedly, deliberately and knowingly flouted the law by employing others to act as dummy bidders, and was guilty of a crime.

It said he was also gravely injured in his reputation, and suffered damage through distress, embarrassment and humiliation.

Outside court yesterday, Mr Jenman said he was bemused that he was not sued. "Why wouldn't they attack the person who is making the comments about them?" he said.

"My (comment) is: 'Here's my chest. Come on, take a shot at me.' "

Yesterday in court, Justin Quill, for the two men, said they were respected real estate agents whose names, when "Googled", produced very offensive material from the stories.

He said the items were defamatory, without doubt.

Matthew Stirling, for the company, said Google Inc, not Google Australia, operated the search engine.

He said Google Australia did not have access to the data, and could not remove what was said to be the offending material.

Mr Stirling said the plaintiffs had indicated legal action might not be necessary if the articles were removed.

Justice Stephen Kaye adjourned the hearing to March 7. He also made orders adding Google's international arm to the court action.

Read more here.

"I hate" forums raise legal issues

The Guardian considers how hate groups could expose social networking sites to legal liability:

Social networking forums, where users give full vent to their gripes about everyone from gas providers and airline companies to the local bus operator, have caught the eye of media lawyers, who warn that such postings may be leaving sites such as Facebook and MySpace open to libel actions.

Advertisers raised concerns last summer over the kind of user-generated content they could be associated with on such sites, and there are now growing fears over so-called "hate pages", such as Facebook's "I hate BT".

Under current legislation, if website owners remove defamatory material as soon as they are aware of it, then they are not liable. But lawyer Nick Armstrong, writing in Media Law, published by Sweet & Maxwell, sees serious legal risks in allowing users to establish groups and pages whose sole purpose is to invite aggressive criticism of organisations and individuals. He also believes that website owners need a better grasp of their responsibilities.

"Social networking sites are perhaps being too complacent about some of the risks in this area," says Armstrong, a partner at law firm Charles Russell. "There is a widespread but inaccurate belief that posters of defamatory material are liable rather than websites themselves, but this should not be taken as a green light for social networking sites to allow users to say whatever they please."

...

He argues that the courts may decide that current laws do not absolve sites of responsibility if they could reasonably have known in advance that libellous comments would be made.

"Sites would be safest if they didn't allow 'I hate' pages because a court is likely to say - however impractical it is - that Facebook, or whoever, should have known that there was a risk of defamation." They could be liable for, in effect, inciting users to post defamatory material, he adds.

That leaves social networking sites with two headaches. How do they close such groups, and is it really right to decide what users should and should not discuss?

Armstrong agrees that shutting down "hate groups" is not the way forward, but says that websites need to react faster when complaints come in - which can be difficult as sites grow.

"It's like something out of Kafka trying to get through to Google, for instance. The danger with these sites is that they are so big that a complaint might not be acted on fast enough."

Facebook would not say whether it had considered banning "hate groups", but a spokeswoman did point to the site's terms of use. Users are told they cannot post content that "makes threats of any kind or that intimidates, harasses, or bullies anyone, is derogatory, demeaning, malicious, defamatory, abusive, offensive or hateful".

Read more here.  Although the article considers only UK law, such sites would face similar legal risks in Australia.

eBay for Cruise book

The Australian reveals how some Australians are getting their hands on a copy of the controversial Tom Cruise biography:

CONSUMERS hungry for Andrew Morton's Tom Cruise: An Unauthorized Biography are turning to eBay to get a copy.

US publisher St Martin's Press has instructed its distributors not to sell the book outside North America.

Some copies were selling for more than $60 on the website last week. The book retails for $US26 ($30) in the US.

An eBay vendor, who wished only to be referred to as Wojtek, had sold more than 150 copies in less than two days, through his eBay company "memorymate".

"We don't usually sell books, but we are interested in exclusive products with massive potential and this is as good as it gets," he said.

"These things don't happen too often. The book has generated so much attention and the more people are hearing about it, the more that they want to buy it.

"The censorship factor has also had a major impact."

Wojtek, who works for an Australian branch of a US-based company, has ordered 800 copies from the US so far and is finalising a deal with an independent bookstore in Sydney.

Read more here.

That Tom Cruise video

Gawker is hosting the controversial Tom Cruise video:

You have to watch this video. It shows Tom Cruise, with all the wide-eyed fervor that he brings to the promotion of a movie, making the argument for Scientology, the bizarre 20th-century religion. Making the argument is an understatement. The Hollywood actor, star of movies such as Mission Impossible, is a complete fanatic. "When you're a Scientologist, and you drive by an accident, you know you have to do something about it, because you know you're the only one who can really help... We are the way to happiness. We can bring peace and unite cultures." There's much much more. Let me put it this way: if Tom Cruise jumping on Oprah's couch was an 8 on the scale of scary, this is a 10.

...

Yesterday, for a few hours, the clip of Tom Cruise discussing his beliefs as a Scientologist appeared on Youtube, and was republished by Radar and Defamer. That video is no longer available, most likely after the Church of Scientology sent in a copyright infringement notice. Gawker is now hosting a copy of the video; it's newsworthy; and we will not be removing it.

Read more and watch the video here.  Gawker has received a copyright infringement notice, but they are refusing to comply.  You can read the request to the remove clip posted to Gawker and Defamer as part of our coverage of the Tom Cruise biography, and, after that, Gawker's refusal to comply, here.

Even dumb speech is protected

From Techdirt:

Judge Points Out That Lawyer Ranking Site Is Free Speech... Even If It's Dumb

Earlier this year, we wrote about a new website, Avvo, that had created an algorithm to try to "rank" lawyers based on quality. It should come as no surprise, of course, that some lawyers (e.g., the low-ranked ones) weren't particularly pleased with such a system and some of them got together to sue the site as a class action suit -- on behalf of poorly ranked lawyers around the world. While you can certainly understand why lawyers would be upset at such a site, just because you're upset about something doesn't make it illegal. And, just as judges have repeatedly pointed out that things like Google's search rankings are protected free speech as opinions, a judge has dismissed the lawsuit against Avvo, noting that the rankings are merely opinions and that's protected free speech. That's not to say that the judge thinks Avvo is particularly useful. In fact, he points out how ridiculous the rankings are -- but that doesn't mean they're illegal. Chalk one up for free speech online.

Read it here.

Some light reading ...

Here are a few academic articles that may be of interest to you ...

First, David Rolph looks at defamation and celebrity in Australia:

Rolph, David, "Dirty Pictures: Defamation, Reputation and Nudity" . Law Text Culture, No. 10, pp. 101-134, 2006 Available at SSRN: http://ssrn.com/abstract=1032487

Abstract: The concept of reputation in defamation law has not been the subject of detailed academic analysis. The most comprehensive account of reputation in defamation law remains Robert C. Post's seminal article, 'The Social Foundations of Defamation Law: Reputation and the Constitution' (1986) 74 California Law Review 691. Post identifies at least three concepts of reputation in defamation law: reputation as property; reputation as honor; and reputation as dignity. This article seeks to apply Post's concepts of reputation to Australian defamation law. Through a case-study of two recent defamation cases, the high-profile litigation of Ettingshausen v Australian Consolidated Press and the comparatively little known case of Shepherd v. Walsh [2001] QSC 358, this article explores the concept of reputation in Australian defamation law. Although these two cases bear important similarities - both involve plaintiffs suing in respect of the publication of naked photographs they claimed exposed them to ridicule - the differences are more striking. This article argues that reputation can be understood as an economic and a social construct but should also be recognized as a media construct - reputation as celebrity.

Second, a case note on Universal Music Australia Pty Ltd v Cooper:

Bosland, Jason John and Wright, Robin W., "Australia: Copyright - Secondary Infringement by Authorization - Hyper-linking" . Available at SSRN: http://ssrn.com/abstract=1032757

Abstract: Comments on the Australian Full Federal Court judgment in Universal Music Australia Pty Ltd v. Cooper on whether a website proprietor committed secondary copyright infringement by authorizing infringement, if the website contained hyper-links to copyright recorded music, which the website users downloaded without the copyright proprietor's consent. Discusses whether the website proprietor had the power to prevent copyright infringement. Considers whether the website was designed specifically to facilitate the unlawful downloading of music.

And finally, copyright reform and the law/norm gap:

Tehranian, John, "Infringement Nation: Copyright Reform and the Law/Norm Gap" . Utah Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1029151

Abstract: As the introduction for a forthcoming symposium issue of the Utah Law Review on Fixing Copyright, this Article focuses on the issue of copyright reform with a particular eye towards identification and analysis of the wide law/norm gap that exists in the field. The 1976 Copyright Act inextricably mediates our relationship with cyberspace and new media. Yet three decades have passed since the Act went into effect, and without dispute, tremendous economic, technological, and social changes have occurred in that time. Although these changes do necessarily dictate wholesale revision of the law, we have certainly reached an appropriate point to evaluate the efficacy of the extant Act and think holistically about the issue of reform.

At this juncture, three key trends bear close observation. First, copyright law is increasingly relevant to the daily life of the average American. Second, this growing pertinence has precipitated a heightened public consciousness over copyright issues. Finally, these two facts have magnified the vast disparity between copyright law and copyright norms. We are, in short, a nation of copyright infringers. In the twenty-first century, the average American violates copyright law with spectacular gusto on a daily basis without batting an eyelid. As surveillance technology grows more sophisticated, thereby allowing acts of infringement increasingly to come under the detection and enforcement power of copyright holders, we will be forced to confront the law/norm gap. In response, we have already begun to reexamine our norms. It is also incumbent upon us to reexamine the vitality of our copyright regime - a regime that presently threatens to make criminals of us all.

s 230 CDA

The Citizen Media Law Project has posted an excellent primer on section 230 of the Communications Decency Act.  Read it here.

Defamatory blogging

Mindy McAdams has written a useful round-up of current US case law and thinking around bloggers' legal responsibility for libelous comments posted on their blogs.  Read it here.

The law of photography

At Blawg IT Brett Trout considers the laws relating to photography.  Read it here.

UK libel law on trial

From The Guardian:

English libel law itself could face scrutiny in a US court, in a case brought by a US author in New York.

Rachel Ehrenfeld's Funding Evil: How Terrorism is Financed - and How to Stop It was published in 2003, and alleged that Saudi businessman Sheikh Kalid bin Mahfouz, among others, financed terrorism, a serious defamatory allegation. The book was published in the US, but 23 copies were made available for sale in the UK.

In 2004, Mahfouz won a default defamation claim against Ehrenfeld in the high court from the libel judge Mr Justice Eady. Ehrenfeld is seeking to resist the enforcement in New York of that English libel judgment.

In the past, US courts have refused to implement libel judgments obtained in England. The high court in England has been a popular venue for libel claimants - and English judges have been obliging in hearing cases not obviously related to this jurisdiction, including actions brought against US-based defendants. In 2000, for example, the House of Lords allowed a claim by Russian businessman Boris Berezovsky (at the time still resident in Russia) against the US Forbes magazine.

One crucial issue is often whether there is significant circulation of the material in question within the UK. With information posted on the internet essentially available everywhere immediately - and English law taking the view that material is published where it is read - the propensity for material to be actionable in England is all the greater.

But though it may be possible to bring a claim in libel in the English court against a foreign defendant and obtain judgment and an award of damages, if the defendant has no assets within the jurisdiction (such as a bank account or a house), that award can be fulfilled only if it can be enforced where the defendant does have assets. That is almost invariably in his or her home jurisdiction.

Read more here.

Legal Aspects of Web 2.0 Activities: Management of Legal Risk Associated with Use of YouTube, MySpace and Second Life

The Intellectual Property: Knowledge, Culture and Economy (IP:KCE) Research Program in the QUT Faculty of Law has released a report originally prepared for Smart Service Queensland on the legal issues of Web 2.0 - Legal Aspects of Web 2.0 Activities: Management of Legal Risk Associated with Use of YouTube, MySpace and Second Life:

As Web 2.0 technologies proliferate, an increasing number of Australians, especially young Australians, are relying primarily on information and communication technologies to engage and interact with each other and the world. If governments are to have meaningful interaction with young people, it is therefore important for them to explore the potential of these communication platforms. But legal considerations must be taken into account when strategising how best to make use of emerging technologies.

The report identifies the practical legal risks associated with activities conducted in online participatory spaces. Encompassing Copyright, Privacy, Defamation, Breach of Confidence and other areas of law, the report outlines the main considerations that arise when engaging in the online environment. It also examines the popular social networking platforms YouTube, MySpace and Second Life in detail, analysing legal issues specific to their Terms of Use and functionality.

The report was written by Jessica Coates, Nic Suzor and Dr Anne Fitzgerald with Anthony Austin, Kylie Pappalardo, Brendan Cosman, Damien O’Brien, Elliott Bledsoe and myself.

You can download the report here.

Legal Threats Database

The Citizen Media Law Project, run by the Berkman Center for Internet & Society, has created a Legal Threats Database.  Creative Economy describes the Database:

The Legal Threats Database is a catalog of the growing number of lawsuits, cease and desist letters, and other legal challenges faced by those engaging in online speech. This publicly accessible database aims to provide lawyers, citizen journalists, and mainstream media alike with a valuable resource for assessing the validity and possible outcomes of legal threats to online speech, based on actual cases and legal actions.

The database, the first such interactive compendium, contains legal threats from 35 states and 9 countries, and is growing daily. These threats range from copyright infringement lawsuits filed against bloggers to cease and desist letters claiming defamation sent to MySpace users. Visitors to the CMLP’s website can input new threat entries, comment on existing threats, and search the database in a number of ways, including by location, legal claim, publication medium, and content type.

Visit the Database here.  This is an excellent idea and if you are aware of or have received any "legal threats" I would encourage you to add it to the database.