Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media

In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).

Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:

[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]

[Emphasis added]

Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:

• the seriousness of the allegation;
• the public importance of the matter;
• the urgency of the matter;
• the status and reliability of the source;
• whether the plaintiff’s side of the story was sought and accurately reported;
• whether the inclusion of the defamatory statement was justifiable;
• whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
• any other relevant circumstances

In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:

[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.

The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,

blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]

[Emphasis added]

However, even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.

Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:

While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

Yet, even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.

In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.

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Also posted on Law is Cool

Protecting internet anonymity: the case for providing notice to anonymous defendants in defamation cases

An open issue in Canadian internet defamation law is whether courts should require that anonymous defendants be given notice of, and an opportunity to oppose, applications to compel the disclosure of their identities by third parties such as websites and internet service providers (“ISPs”). Because applications to compel disclosure are generally left unchallenged by third parties who would rather evade the costly cross-fire of litigation, courts have tended to review such applications ex parte. The concern in these cases is that anonymous defendants may be stripped of their anonymity – and thereby subjected to embarrassment, social stigma, or harm to their career prospects – all without an initial opportunity to anonymously submit a written response or retain counsel to oppose the application. This post discusses the status of a notice requirement in Canadian, American, and English law and evaluates the different approaches.

1. Canadian Law

Only one Canadian case has commented on the appropriateness of a notice requirement. In York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) (“York University”) a plaintiff sought pre-action discovery by way of an equitable bill of discovery known as a Norwich Order. The Ontario Superior Court of Justice granted the Norwich Order, which required ISPs to disclose information necessary for the plaintiff to obtain the identity of the anonymous author of allegedly defamatory emails and web postings. Justice G.R. Strathy noted that it might be appropriate to impose a notice requirement, but declined to do so without providing reasons:

[I]t may be appropriate, in a given case, to require that the unknown publisher of the offending material be given notice of the proceedings. It does not appear to have been done as a matter of course in other Norwich order cases and I did not consider it necessary to do so in this case.

York University was discussed by other commentators in two excellent blog posts on Slaw: the first generally outlining the case, and the second commenting on specific points including the notice issue.

2. English law

The appropriateness of a notice requirement has received more attention in English law. In Totalise plc v The Motley Fool, [2001] E.M.L.R. 29 (H.C.), [2002] 1 W.L.R. 1233 (C.A.) (“Totalise”), the English Court of Appeal described the rationale for a notice requirement. In that case, Justice Owen of the English High Court first granted a Norwich Order that compelled a website operator to reveal the identifying information of an anonymous defendant that posted allegedly defamatory statements about the plaintiff. When the case was appealed on the issue of costs, Justice Aldous noted in obiter that it would have been desirable to require the third party to give the anonymous defendant notice of the application and then allow the anonymous defendant to make written submissions through the third party in order to better inform the court’s decision:

It is difficult to see how the court can carry out this task [i.e. whether to grant the requested order] if what it is refereeing is a contest between two parties, neither of whom is the person most concerned, the data subject; one of whom is the data subject’s prospective antagonist; and the other of whom knows the data subject’s identity, has undertaken to keep it confidential so far as the law permits, and would like to get out of the cross-fire as rapidly and as cheaply as possible. However the website operator can, where appropriate, tell the user what is going on and to offer to pass on in writing to the claimant and the court any worthwhile reason the user wants to put forward for not having his or her identity disclosed.  Further, the court could require that to be done before making an order.  Doing so will enable the court to do what is required of it with slightly more confidence that it is respecting the law laid down in more than one statute by Parliament and doing no injustice to a third party, in particular not violating his convention rights.

Although the obiter from Totalise is compelling, English courts have yet to impose a notice requirement. In the recent case of Sheffield Wednesday Football Club Ltd v. Hargreaves, [2007] EWHC 2375 (Q.B.) a justice of the English High Court dealt with a similar case and, after considering Totalise, concluded in the absence of reasons that

It did not seem to me that this was a case where I should require that the website users [i.e. the anonymous defendants] be contacted before making an order.

3. American law

American law, by contrast, strongly supports a notice requirement. In the leading case of Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (“Dendrite”), a New Jersey appellate court articulated a series of requirements for plaintiffs to meet before a court would order disclosure. The first of these requires that the plaintiff make efforts to notify the anonymous defendant that they are the subject of an application for an order to disclose their identities so that the defendants have a reasonable opportunity to respond:

We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.

Several notable American cases have adopted the same or similar notice requirements post-Dendrite: Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005); Mobilisa, Inc. v. Doe 1, 170 P.3d 712 (Ariz. Ct. App. 2007); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct. App. 2008) (“Krinsky”); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Swartz v. Does (“Swartz“) (Swartz, the most recent of these cases, was discussed in a previous post).

4. Analysis

Although both English and American jurisprudence supports a notice requirement, the approaches differ: while Totalise advocates imposing the requirement on third parties, Dendrite and subsequent American cases have consistently imposed the burden on plaintiffs. The problem with the later approach is that plaintiffs are generally in a relatively poor position to give reliable notice because, unlike third parties, they lack access to the defendant’s contact information. As a result, Dendrite and subsequent American cases have merely required plaintiffs to provide indirect notice by posting on the ISP’s pertinent message board, by posting on the same website or medium used by the anonymous defendant to publish the statements at issue, or, if the statements originated in an email, by sending notice to the anonymous defendant’s email address. The concern with these types of notice is their unreliability. There is no guarantee that a defendant will check these sources, or that the website or medium will still exist by the time the plaintiff commences action. And, in the case of email, a similar concern still exists due to the increasingly common use of disposable email accounts that defendants may abandon after sending allegedly defamatory statements.

Yet, imposing the burden of notice on plaintiffs may have some notable benefits. Unlike the approach advocated in Totalise wherein third parties would directly notify anonymous defendants, plaintiffs under the Dendrite approach generally have no choice but to provide indirect notice by posting in a publicly accessible forum. The public nature of a plaintiff’s notice will expose the matter to the oxygen of publicity and may affect the extent of the plaintiff’s reputational harm, depending on the context. In some cases, public scrutiny might result in further reputational harm if the public perceives the plaintiff to be unjustifiably attempting to silence the anonymous defendant. In other cases, however, public scrutiny might serve to alleviate the existing reputational harm by calling into question the veracity of the statements. Third parties might even be persuaded to mount a defence against a plaintiff’s application in cases where there is significant public support in favour of an anonymous defendant but they lack the resources to defend their anonymity.

Another option is to require both the plaintiff and the third party to provide notice. Although this approach would increase the reliability of notice and preserve the beneficial qualities of plaintiff-based notice, the approach seems redundant in the absence of evidence to suggest that the benefits of dual notification outweigh the costs. This is likely one of the reasons why the California appellate court in Krinsky rejected the notion of requiring a plaintiff to provide notice where a third party had already voluntarily done so:

When ISPs and message-board sponsors (such as Yahoo!) themselves notify the defendant that disclosure of his or her identity is sought, notification by the plaintiff should not be necessary.

In summary, a notification requirement imposes a relatively light burden on plaintiffs or third parties while providing defendants with the valuable opportunity to defend their anonymity and better inform the courts’ decision. Although a plaintiff-based approach may have some ancillary benefits, a third party approach provides more reliable notice and should be preferred because it best furthers the primary rationale underlying notice requirements.

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Swartz v. Does: American and Canadian approaches to anonymity in internet defamation cases

A recent case illustrates that American jurisprudence is increasingly coalescing around a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases. As discussed below, the Canadian experience has been different.

In Swartz v. Does (“Swartz”) (see: judgment) a Tennessee state court held that plaintiffs were entitled to discover the identity of an anonymous blogger that published allegedly defamatory statements about them. The case arose when the plaintiffs subpoenaed Google, the parent company of the blogging service used by the anonymous defendants (see: news article).

The decision is notable for Justice Brothers’ survey of the various standards previously applied by American courts and his ultimate application of the standard most protective of internet anonymity. This standard, established in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (the “Dendrite Standard”) and commonly but perhaps misleadingly known as the “prima facie standard”, requires a plaintiff to meet several requirements. One of these requires the plaintiff to make a “substantial legal and factual showing” that the defamation claim has merit before a court will compel the disclosure of an anonymous defendant’s identity.

Justice Brothers considered this requirement of the Dendrite Standard and concluded that the plaintiffs had made a substantial legal and factual showing on each of the three elements of a defamation claim under Tennessee law. Interestingly, Justice Brothers proceeded to offer guidance for future litigants by providing a detailed description of how the plaintiffs met the requirement, which does not appear to be onerous:

Plaintiffs submitted and displayed several copies of the blog posts in question, and testified that the statements were publicly available for several months. Plaintiffs testified that the [allegedly defamatory allegations] are all false. Plaintiffs also testified that they experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert inspect their home [sic].

Swartz is yet another American case that has followed the increasingly prevalent Dendrite standard. Unfortunately, Canadian jurisprudence has yet to begin coalescing to the same extent.  The scarce Canadian law on this issue, most of which comes from Ontario, indicates that plaintiffs have two ways to compel online service providers to reveal the identities of anonymous defendants:

• by seeking pre-action discovery by way of an equitable bill of discovery known as a Norwich Order; or
• by seeking pre-action discovery or production from the online service provider by bringing a motion under the applicable rules of civil procedure.

The requirements of each approach vary substantially. While the Norwich Order approach requires plaintiffs to establish only a bona fide case of defamation (see York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) and BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241 (C.A.)), the alternate approach has generated different requirements depending on the rules of civil procedure under which the plaintiff brought their motion. In an early case, the court required the plaintiff to establish a prima facie case of defamation similar to that required under the Dendrite standard (Irwin Toy Ltd. v. Joe Doe, 2000] O.J. No. 3318 (S.C.J.)). Yet, in a more recent and controversial case, the court held that the plaintiff had no obligation to establish a prima facie or even bona fide case because disclosure was automatic upon the issuance of a statement of claim (Warman v. Wilkins-Fournier, [2009] O.J. No. 1305 (S.C.J.)). Although these cases are distinguishable on the basis of differences in the applicable rules of civil procedure, more uniformity is needed to ensure that courts consistently strike an appropriate balance between privacy and reputational interests.

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Also posted on Law is Cool, PogoWasRight, and PrivaWorks

Distinguishing Twitter postings from other forms of communication in online defamation cases

The New York Times published an interesting article today about the growing number of defamation actions involving messages posted on Twitter (see: article). The article noted that the special characteristics of Twitter postings may distinguish them from other forms of online posting when it comes to defamation actions:

[T]here are few prescribed social norms on Twitter like those in more closed communities like Facebook. The service has attained mass popularity without much time to develop an organic users’ culture. On top of that, with tweets limited to 140 characters, users come right to the point without context or nuance.

“It’s the same reason why schoolyard fights don’t start out with, ‘I have a real problem with the way you said something so let’s discuss it,’ ” said Josh Bernoff, a researcher and an author of “Groundswell: Winning in a World Transformed by Social Technologies.”

“You get right to the punch in the nose. Twitter doesn’t allow room for reflection. It gets people to the barest emotion.”

But the article proceeds to imply that the short and blunt nature of Twitter postings might make it easier for defendants to argue that Twitter postings aren’t taken seriously by readers and – therefore – aren’t harmful to a plaintiff’s reputation:

“The basic law [of defamation] will be the same, but I would think that a defendant might argue that the language used on Twitter is understood to not be taken as seriously as is the case in other forms of communication,” said Mr. [Floyd] Abrams, who has represented The New York Times. “We will have to wait and see how judges and juries figure out how to deal with this.”

American courts have already given some indication of how they might deal with such an argument. The decision of Justice Madden of the New York State Supreme Court in the infamous Cohen v. Google case (see: previous posting) is illustrative. In that case, the defendant blogger (the “Defendant”) argued that statements made on her blog were not perceived by readers as factual assertions because blogs had become forums for venting personal opinions:

The Blogger further argues that even if the words are capable of a defamatory meaning, “the context here negates any impression that a verifiable factual assertion was intended,” since blogs “have evolved as the modern day soapbox for one’s personal opinions,” by “providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for voicing gripes, leveling invective, and ranting about anything at all.”

Although Justice Madden rejected this argument, her reasons did not directly address the issue of context:

The court also rejects the Anonymous Blogger’s argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: “In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.

Although more jurisprudence on the effect of context in cases involving Twitter and similar online services is almost certainly forthcoming, the judgment in Cohen v. Google indicates that courts may be reluctant to tolerate an increasingly outspoken and defamatory online culture at the expense of a plaintiff’s right to a good reputation.

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27 percent of Canadians surveyed ignorant of liability for online defamation

A recent survey found that 27 percent of Canadians surveyed believe that they aren’t legally responsible for their online comments (see: news release). The survey also indicated that nine percent of Canadians surveyed claim to behave more opinionated online compared to their behaviour in person.

These survey results are surprising, especially considering that respondents were surveyed in September, a month following various media reports on such high profile defamation cases as Cohen v. Google, York University v. Bell Canada  Enterprises, the zeromeanszero blogger litigation, and the controversial Warman v. Wilkins-Fournier.

As blogs proliferate and online defamation law becomes clearer, these sorts of cases are likely to become more common. It’ll be interesting to see how quickly public behaviour on the internet changes as a result.

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Another blogger bites the dust: Buckle v. Caswell

A recent Canadian case offers another example of the legal dangers facing bloggers that post potentially defamatory statements.

In the case of Buckle v. Caswell (see: judgment), Wayne Buckle – a senior Crown prosecutor – (the “Plaintiff”), sued Gay Caswell – a former member of the Saskatchewan legislature – (the “Defendant”), for defamation in connection with a blog operated by the Defendant (the “Blog”). The Blog contains a statement which alleges that the Plaintiff is, among other things, a drug user that was disbarred for misappropriating funds (the “Statement”):

Mr. Buckle and his sister were busted for a grow operation. (They were charged with growing marijuana). Mr. Buckle lost his licence as a lawyer with the Sask. Law Association because he took money belonging to a client. He then headed the Legal Aid office but misused funds there. He is a well known and publicly known cocaine user. One person told me his personal experience when judge, lawyer (Buckle) and he, the accused had a court adjournment to toke-up (do marijuana) behind the La Ronge court house.

Justice A.R. Rothery concluded that the Plaintiff had proved the elements of defamation and awarded damages of $50,000 and an injunction requiring the Defendant to remove the Statement. The Defendant has publically refused to remove the Statement.

The action was undefended, and the Defendant claims that she lacked the funds necessary to hire representation and was too ill to attend court. The Defendant has indicated that she will appeal the decision.

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TCI Journal and the exposure of anonymous online speakers

A recent case illustrates the problem of allowing a court to expose the identity of an anonymous online speaker without first requiring the plaintiff to demonstrate a prima facie or even bona fide case of defamation. 

In late August, the California Superior Court issued a subpoena that compelled Google to disclose the identity of anonymous journalists in the TCI Journal case. In that case, a resort developer – Dr. Cem Kinay – (the “Plaintiff”) sought a subpoena to compel Google to disclose the names of the anonymous owners of the e-mail address for TCI Journal, a small, volunteer-run online newspaper that reports on government corruption in the Turks & Caicos Islands (the “TCI Journal”). The Plaintiff alleged that the TCI Journal posted defamatory statements which associated the Plaintiff with government corruption. 

What makes the TCI Journal case troubling is that the Plaintiff was able to determine the identify of the anonymous operators of the TCI Journal without being required to demonstrate a prima facie or even bona fide case of defamation. In similar Canadian and American cases – including the infamous Cohen case (see: previous post) – plaintiffs have been required to demonstrate that their claim had some merit before a court would compel an online service provider to disclose the identity of an anonymous online speaker. In this case, the Plaintiff appears to have been required to do little more than file a court document and pay a small fee. Although the TCI Journal could have made a motion to quash the subpoena – this appears to have not occoured – likely because the TCI Journal couldn’t afford legal representation. 

To make matters worse, Google declined to oppose the subpoena, as illustrated in the following extract from an email sent to the operators of the TGI Journal:

Google has received a civil subpoena for information related to your Google account …

To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at legal-support@google.com by 5pm Pacific Time on September 16, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date. 

Unfortunately, Google is not in a position to provide you with legal advice. 

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

The TCI Journal case should concern online entities that depend on their anonymity to function yet lack the funds required to protect it. In many cases, exposing a critic’s identity might be sufficient to silence that critic. If the critic lacks the funds required to fight the plaintiff’s attempt to expose their identity – and if the law does not independently require the plaintiff to demonstrate that their defamation claim has some merit – plaintiffs might be permitted to achieve their purpose in the absence of any real case of defamation. This is especially problematic if the critic’s purpose is to further the public good.

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Google forced to reveal identity of anonymous blogger

A former Canadian model, Liskula Cohen, (the “Plaintiff”) has received an order from Justice Madden of the New York State Supreme Court to force Google, the Defendant, to reveal the identity of an anonymous blogger that defamed the Plaintiff on a blog (see: text of judgment). The blog, called Skanks in NYC (the “Blog”), contained the following allegedly defamatory statements (the “Statements”):

How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.

(…)

I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to the Defendent.

The Plaintiff sued Google in an attempt to force Google to reveal the identity of the person that posted the Statements. The Blog was hosted by Google, which initially fought to keep the blogger’s identity a secret. Now that Google has been ordered to unmask the blogger’s identity, the Plaintiff will presumably take further action against the blogger.

This decision has attracted substantial public attention – not only because of the celebrity of the Plaintiff and the extravagance of the Statements – but because of the legal effect that this decision will likely have on increasing the likelihood that bloggers will be held responsible for their defamatory statements.

This case may turn out to be merely a pyrrhic victory for plaintiffs in online defamation cases. This decision creates an incentive for bloggers to input false information when registering for blogs to avoid revealing their identity in the event of legal action. Although Google will still be forced to reveal the IP of bloggers in cases where the name and email address provided by the blogger is false, the evidentiary challenge of linking an IP to a specific blogger will remain a significant problem for plaintiffs.

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Section 230 to the rescue, again

Twitter made news last week when a Chicago apartment leasing and management company sued a former client in defamation for posting a message on Twitter (see: blog posting). Twitter is making news again now that the President of the Board for New York’s Atelier Condos has filed a lawsuit against two condo owners and three former employees for publishing defamatory statements on various websites, blogs, and Twitter. The defamatory statements involve accusations of murder, bribery, extortion, illicit payoffs, and corruption (see: complaint).

Interestingly, the plaintiffs are also suing Twitter and other entities for hosting the defamatory statements. This part of the suit is almost certain to fail by virtue of section 230 of the Communications Decency Act [ “Section 230”], which protects online services from liability for content posted by third parties. The relevant language of Section 230 is as follows:

“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.”

Various commentators have noted that counsel for the plaintiffs (“Counsel”) were probably oblivious to the application of Section 230. Unless Counsel knows something that we don’t, their decision to sue Twitter and other entities is a surprising mistake that will not only waste judicial resources, but also likely generate more public consciousness of the allegedly defamatory statements than would have occoured if the action was confined to the condo owners and former employees. In a world where the public is less likely to sympathize with big business, this mistake is probably not a little one.

Readers may recall that Section 230 came to the rescue of Wikipedia almost precisely one year ago when a New Jersey judge relied on Section 230 to exempt Wikipedia from a defamation suit based on comments posted by its users.

The case against Wikipedia was filed by a literary agent (the “Plaintiff”) that was the subject of ridicule on several blogs and websites. In particular, the blogs often referred to the Plaintiff as “that lunatic,” her colleagues as a “posse of dumbshits,” and their actions as “random nuttiness.” When some of these statements appeared in a Wikipedia entry, the Plaintiff named Wikipedia as a defendant in her law suit.

In this case, Wikipedia successfully argued that the claim should be dismissed because Wikipedia was an interactive computer service  and any defamatory information was provided by another content provider such that Wikipedia was protected by Section 230.

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Google not liable for defamatory material in search results

In a recent decision of the English High Court in Metropolitan International Schools Ltd v DesignTechnica Corporation ["Metropolitan International"] (see: case), Justice Eady held that Google, the popular search engine, was not liable for defamatory material that appeared in its search results. More generally, Metropolitan International supports a common law principle that a person cannot be liable for conveying defamatory material to users if the conveyance lacks human intervention.

The claim against Google was brought by Metropolitan International Schools ["Metropolitan"], a company that offers distance learning courses. The litigation arose after an anonymous person posted a message on a website suggesting that Metropolitan’s distance learning courses were a “scam”. To make matters worse, the message began ranking highly in Google search results for searches conducted for Metropolitan. Metropolitan reacted by suing the website operator and Google for publishing the defamatory comments in its search results.

The issue of interest in this case was whether Google was a “publisher” of the defamatory material and thereby liable to Metropolitan. The court began by drawing an interesting distinction between a human compiler of a library catalogue and the automated indexing process employed by Google. The later could not be a “publisher” – Justice Eady concluded – because the search results were generated automatically and without human involvement. Accordingly, Google lacked the requisite knowledge and involvement sufficient to constitute publication [at para. 50 and 53]:

When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from [Google]. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.

(…)

[W]hereas a compiler of a conventional library catalogue will consciously at some point have chosen the wording of any “snippet” or summary included, that is not so in the case of a search engine. There will have been no intervention on the part of any human agent. It has all been done by the web-crawling “robots”.

The court was careful to note that Google, although not liable as a publisher, might be liable on the basis of acquiescence if it permitted the publication to appear in its search results despite having the power to prevent it. On a survey of the facts, the court concluded that Google had acted to restrict access to the message and was thereby not liable on the basis of acquiescence.

This judgment  has interesting implications for website operators that exercise human intervention in the process of conveying information to users. The court’s distinction between processes which involve human intervention and those which consist of automated processes suggest that online entities might decrease their legal exposure by automating processes that involve the conveyance of information to users. One may question whether this “incentive to automate” might result in an increase in incidences of internet defamation accompanied by a decrease in the precision and relevance of information conveyed to users.

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Twitter defamation litigation

A Chicago apartment leasing and management company (the “Plaintiff”) has sued a former client (the “Defendant”) in defamation for posting a message on Twitter, a social network that allows users to send and read messages (see: news article; statement of claim). Although the Defendant’s Twitter account was followed by no more than 20 people at the time, the Plaintiff alleges that the message was “published throughout the world” and is seeking damages in excess of $50,000. The message is reproduced below:

Who said sleeping in a moldy apartment was bad for you? Horizon [the Plaintiff] thinks it’s okay.

Commentators have been quick to question the sagacity of the Plaintiff’s decision to commence legal proceedings (see: news article). Regardless of where fault lies, this litigation is illustrative of the paradox that plagues defamation actions: plaintiffs, by acting to assert their legal rights and restore their tainted reputations, risk attracting public scrutiny and aggravating the very reputational effect that they sought to avoid.

Update: The suit was dismissed on January 20th, 2010. Read more here.

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