Last fall, the anonymous liberal blogger known as Atrios showed how to snuff out the threat of a libel lawsuit when the would-be plaintiff is a fellow blogger. Simply post the retraction demand on the Internet and invite denizens of the blogosphere to shame your tormentor into calling off the dogs. That tactic did the trick for Atrios in less than a week.
Donald Luskin, a contributing editor to National Review Online and publisher of a blog called The Conspiracy to Keep You Poor and Stupid, which is dedicated to mercilessly hounding New York Times columnist Paul Krugman, retained a Boston attorney to deliver the ultimatum. Luskin was goaded into threatening legal action by an Oct. 7 caption posted by Atrios, "Diary of a Stalker." It linked to a poorandstupid posting from earlier that day, titled "Face to Face With Evil," in which Luskin told of attending a Krugman speech that he characteristically lambasted as a "nonstop barrage of lies."
In his Oct. 29 retraction demand, Luskin's attorney, Jeffrey J. Upton, warned that any suggestion that Luskin has "committed the crime of stalking... constitutes libel per se." Atrios could avoid "legal expense and exposure to liability and damages" if he deleted the "unfortunate" caption, and even nastier reader comments that it had incited, within 72 hours, Upton declared.
As it turned out, in just a little more than 72 hours, it was Luskin who was forced to retreat in the face of a barrage of derision from bloggers. The lefties were predictably irate, denouncing Upton as a "scumbag sleazeball lawyer" and Luskin as an "insane psycho crazy right winger" and calling "bloggers to the barricades" to fight back. But it was disapproval from the right that must have really stung Luskin. Walter Olson, who rails against litigiousness on his blog, Overlawyered, offered his take on the controversy in a posting titled "Conspiracy to keep you scared and silent." Olson noted that the surprisingly thin-skinned Luskin's own "furious and unremitting attacks" on Krugman had occasionally crossed the line into territory that anyone with a litigious bent could consider libel.
Unfortunately for Web writers, most readers who threaten to sue for libel aren't so easily deterred. Worse yet, the statutes and judicial rulings that have emerged over the years to give guidance to journalists on how to steer clear of libel suits often don't mention the Internet. And, just as shield laws don't necessarily protect online journalists from having to divulge sources and notes, it remains to be determined whether the "journalists" encompassed by assorted state libel laws include writers whose work appears on the Internet.
Narrow state statutes
A case from Wisconsin from nearly a decade ago still stands as a cautionary tale for Web writers about the limits of many state statutes that deal with corrections and retractions designed to enable conscientious journalists to avoid crippling liability claims for errors that make it into print.
In that case, Jeff Meneau of Wisconsin filed a defamation suit against Rosario Fuschetto for nasty comments that he made in a personal spat that spilled onto the bulletin board of SportsNet, an online forum for sports memorabilia dealers and collectors. Fuschetto tried to get the case dismissed on grounds that Meneau had failed to comply with Wisconsin's corrections law, which states that before proceeding with a libel or defamation lawsuit, the aggrieved party must issue a written demand for a retraction to give the publisher a "reasonable opportunity" to set the record straight.
The Wisconsin Court of Appeals rejected Fuschetto's argument. The statute in question refers to "any newspaper, magazine or periodical" but makes no mention of other forms of writing such as personal letters or billboards. It certainly doesn't extend as far afield from traditional print media as the Internet, the court declared. "Applying the present libel laws to cyberspace or computer networks entails rewriting statutes that were written to manage physical, printed objects, not computer networks or services." That's a job for the legislature, the court concluded in 1995.
Nearly a decade later, few legislatures have taken up that challenge, according to Thomas Burke, a media lawyer in the San Francisco office of Davis Wright Tremaine LLP. "Most states do have a retraction statute. But very few states have a retraction statute which would seem to contemplate protection for statements that are published online," he says. Some of the statutes are worded just broadly enough that a Web writer with a creative pleading might be able to squeeze in the door, Burke adds. "But two-thirds of the statutes would need to be amended to contemplate the ways that people are now communicating online."
In the meantime, says Burke, Web publishers should scrupulously follow their state's corrections law as if they were covered by it. To wit, they should promptly post corrections and retractions in a place that is as conspicuous as the content that could give rise to the libel suit. That may not preempt a libel claim against a Web writer, as it could for a print publisher expressly covered by the corrections law. But it could certainly help blunt any demand for hefty damages, Burke says.
Luskin's attorney, Upton, a partner with the Boston firm of Hanify & King, agrees that Web writers won't necessarily get themselves off the hook by publishing corrections online. Under the principles of statutory interpretation, laws that can result in penalties "are supposed to be very narrowly construed by the courts," Upton explains. So if a corrections statute does not expressly include electronic media, Web writers are out of luck, in his view. Any who aren't happy about that should take it up with their elected representatives, Upton says. "It's a case of the legislature needing to catch up with technology."
A broader federal law
One protective statute that was written specifically with the Internet in mind is the federal Communications Decency Act of 1996, particularly Section 230, which aims to shield Web publishers from liability for libelous comments posted by third parties. The section states 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." By now, dozens of judges have taken a shot at interpreting that provision, and they have reached widely varying conclusions about what it means.
The conflicting views of Section 230 would have been at the center of Luskin's suit against Atrios, if it had gone to trial. "The whole stalking thing was not what the dispute was about," Upton insists in an interview, backing away a bit from his demand letter to Atrios in which he suggested that use of the word stalker was per se libelous. "The dispute was about some rather disturbing threats of physical violence that were made by the readers in the comments section toward Mr. Luskin and his family. The demand was that those be taken down."
Upton agrees that Section 230 provides Web publishers with "some protection" from libel claims for comments posted by third parties. "They are not strictly required to edit comments that are made," he says. "But certainly when the host has reason to know that criminal violations are taking place on their Web site and they're put on notice of that, the statute does not provide blanket protection from liability under those circumstances."
Upton acknowledges that the boundary between third-party comments that are protected by Section 230 and comments that can land the Web host in court "is not an easy line to draw because there is conflicting authority in the courts on this issue. This is something that ultimately is going to be clarified by the courts, but right now it is hazy."
Other legal authorities beg to differ with Upton. They think the law pertinent to Luskin's claim is quite clear, and he wouldn't have had a prayer in court. Jack Balkin, for one, a professor of First Amendment law at Yale Law School, asserted in a comment on the Luskin-Atrios fracas on his own blog, "This is a nuisance suit. Unfortunately, Atrios will have to hire an attorney, but he should win easily."
In a more extended discussion of how libel laws play out on the Internet, Balkin noted that bloggers and other Web writers aren't immune from suits for their own libelous statements. And there are other issues that remain unsettled. For instance, it's unclear whether a Web site could be held to account for linking to defamatory content. In Balkin's view, that would probably not provide grounds for a libel suit against the linker, unless perhaps he or she in some way vouched for the veracity of the content reached by way of the link.
Jurisdictional question marks
As if libel law weren't foggy enough already for Web journalists, the issue of jurisdiction gives rise to still more unanswered questions. Matt Drudge is one of a number of Web writers who has gotten a taste of that.
From his home base in California one day in 1997 he posted a bit of unfounded gossip on his Drudge Report asserting that Sidney Blumenthal, then newly appointed to a position in the Clinton White House, had a record of beating his wife. Drudge retracted the claim the next day. But Blumenthal, not about to let the matter pass at that, filed a $30 million defamation suit in federal court in Washington D.C. against Drudge and America Online, which at the time was paying him $3,000 a month for the privilege of hosting his widely read report.
AOL invoked Section 230 of the Communications Decency Act to successfully extricate itself from the case. Drudge tried get himself off the hook by arguing that a Washington D.C. court had no jurisdiction over him. The same court that released AOL rejected that defense. The court acknowledged that the legal questions surrounding jurisdiction in cyberspace are relatively new and "different courts have reached different conclusions." But the Drudge Report had more than just a passive presence in the District, the court concluded. Drudge regularly interacts with local residents through his Web site, for example by soliciting contributions and gossip from them. That gives him more than enough contact with the District to satisfy its long-arm jurisdiction statute, the court concluded.
Media observers were hopeful that Blumenthal's suit against Drudge would proceed to trial and in the process help fill in the many gaps in online libel law. The consensus among both those who admire Drudge and those who detest him was that despite his recklessness, he would prevail, given Blumenthal's status as a public figure who as such was fair game for all but demonstrably and intentionally malicious falsehood. Blumenthal ultimately dropped his suit and made a token payment of $2,500 to Drudge to help defray his legal expenses, allowing the columnist to declare victory on behalf of all writers on the Internet.
"This result vindicates our position that, in defamation cases, the First Amendment's protection extends to individuals operating in new mediums, no less than to traditional journalists in corporate newsrooms," said Drudge's lead attorney, Manny Klausner.
Justene Adamec, a Los Angeles lawyer and host of Calblog, recently found herself even farther out on the unmapped frontiers of Internet libel law. Her troubles began last year when she posted a note about Infotel Publications in which she asserted that the company's telemarketers were pestering her law firm with demands for $300 in payment for a directory listing that the firm had never requested. "Has anyone else had this problem?" she asked. Apparently many other readers of Calblog had been aggressively dunned by Infotel for services they insist they had never requested. Hostile messages about the company quickly piled up in the Calblog comments section.
Last November, Adamec heard from the company itself in the form of a letter from a lawyer in California threatening to sue her for misrepresentation, invasion of privacy and other offenses if she didn't delete all of the comments about Infotel by 5 p.m. that day. In response, she deleted the harshest attacks on Infotel personnel from some of the messages, after checking the Communications Decency Act to assure herself that editing some of the comments wouldn't leave her liable for the ones she didn't touch. And she temporarily turned off the comment feature on the Infotel thread since she was leaving town on a two-week trip. On her return, with the blogosphere cheering her on, Adamec defiantly restored the Infotel message feature but never heard back from that attorney.
In January, however, she was contacted by an investigator who politely asked her on behalf of unnamed clients to explain "how your logging works." And in April the company made good on its threat, filing a suit accusing her of publishing on her Web site "racist, discriminatory, slanderous and threatening statements" about the Infotel, its founder and his family.
One of the quandaries for Adamec was that the suit was filed in Infotel's hometown, Montreal, Canada. At the outset, Adamec was clueless about how to respond. Ignoring the matter was one option she considered on the theory that any response might preclude her from claiming that the Canadian court had never obtained jurisdiction over her. But she ultimately spent a full day cramming on Quebec law, then called Infotel's attorney and told him she was convinced there was no legal basis for the lawsuit.
He asked her to remove a few of the messages, which was considerably less than what the suit demanded. She invited him to send her information proving that the postings were false. The last she heard in late April was that a scheduled hearing had been "suspended." "I'd say it's suspended because ... but I've practiced law long enough not to speculate on why the opposing counsel does anything," she wrote in her latest update on the case. "Suspended does mean it can come back."
Her success in fending off Infotel, at least so far, without yielding to the demands to remove the tough criticism of its business practices from her site, is encouraging to Web publishers. But in an e-mailed response to a question about the status of the case, she added one caveat. "You should know that I am a lawyer and this happened to be an area of law I practice in so it was far easier for me than for most."