cybersoc.com

wikipedia and (US) libel law

According to Jennifer Granick, executive director of the Center for Internet and Society at Stanford University Law School (quoted here), Wikipedia is unlikely to attract legal liability for libel. This is because the act, in Granick's interpretation, protects internet services classified as "ISP's" rather than as "publishers" from liability.

"I think that there's no liability, period," she told Daniel Terdiman of C-Net News, "section 230 [of the Federal Communications Decency Act] gives you immunity for this".

The C-Net article explains the background:

In one of the most famous cases testing a service provider's liability, Zeran v. America Online, the 3rd U.S. Circuit Court of Appeals, located in Philadelphia, ruled unambiguously that online services like AOL, Amazon.com or Wikipedia are protected under the CDA... "By its plain language, section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service," the 3rd Circuit wrote in its 1997 opinion.

[Please note: The above post appears for information purposes only and was not written by a qualified legal professional. The Law Society can help you find a solicitor in England and Wales. Please also note the the above post is about a the opinions of a US based legal academic on a matter of US law - NOT UK law where the situation is likely to be different.]

more on internet libel

Last week I wrote that a court in British Columbia, Canada worryingly asserted jurisdiction over the alleged libel of a Canadian man by a US based newspaper website. Now the High Court in Canada has gone against this ruling and decided that it can't assert jurisdiction in a case (see this report from The Guardian) involving the Washington Post.

The decision in the Canadian case doesn't set binding precedent for courts outside Canada but the precedent is likely to be reviewed by the courts of other nations and could very well prove influential in their decisions about jurisdiction in internet libel cases. This is good news for internet publishers.

So how much danger is there that website publishers will fall prey to a libel claim? Not much actually, at least in the UK. Libel cases are extremely costly to bring before the courts (and to defend against) but legal aid is not provided for defamation cases. Since 1998, some solicitors [in a move that has been criticised] have been willing to take libel cases on a "no win no fees" basis and this, according to research undertaken by legal publisher Sweet & Maxwell, has led to an increase in libel cases brought before the UK courts. But there still aren't many - 96 libel cases were brought before the High Court in 2000, the highest number on record for a single year. There could, however, be more cases than that. Since the Woolf reforms, those bringing smaller claims (<£10,000) of defamation can enter into a "fast-stream" process which can lead to restitution in the form of a published apology and/or financial compensation capped at £10,000. This process can lead to many cases being dealt with before they reach the High Court and - importantly - falling beneath the radar of Sweet & Maxwell's research.

None of this means that internet publishers, or anyone for that matter, should worry less about the implications of being the target of a libel suit. Libel cases are complex and expensive to bring before the court and few actually make it before the jury (defamation cases are heard by a jury). However, it's likely that most cases are now being dealt with by the fast track system so the costs, risks, and rewards are all less than in High Court cases. Potentially, as word gets out about the fast track system and "no win no fees" legal providers, more potential claimants could come forward. Luckily those claims won't be for the astronomical rewards often seen in High Court cases. The issue of jurisdiction in internet libel cases is probably far from over although the Canadian case above certainly helps move things in the right direction for web publishers (although perhaps not for those defamed by them!).

So keep worrying, but let's keep it all in perspective.

[The above post is for informational purposes only and doesn't constitute legal advice. You wouldn't let a random person off the street give you brain surgery so why let a random blogger explain the law to you?! Contact a qualified solicitor before acting upon any information contained here.]

More from Cybersoc on user generated content and the law, message board libel, etc

jurisdiction & internet libel

What happens when a newspaper based in America posts on their website a potentially defamatory article about someone in another country? They get sued in that other country...

GlobeandMail.com reports that the Supreme Court of British Columbia has asserted jurisdiction in a libel suit being brought by a Canadian, formerly an executive at a Canadian hockey team, and the New York Post - even though the paper is only available in Vancouver via the internet.

...I guess internet publishers are going to have to start learning the details of, and ensuring the comply with, libel law globally rather than just in the country where their website is based...

internet libel or patient power: doctor reviews

David Kesmodel of the Wall Street Journal Online writes today about the growing number of American websites where patients post reviews, often anonymously, about the medical care they've received:

Doctors have long accepted that their patients share opinions about the care they have received, knowing that satisfied patients will refer others while those not so happy with their bedside manner might encourage prospective customers to seek treatment elsewhere. But when William Boothe, an ophthalmologist in Texas, saw that one disgruntled former patient was posting his complaints on the Internet, he launched an aggressive response. He sued for libel and other claims, and earlier this year a state judge ordered the material removed from the Web. The case is one of a growing number of legal battles being waged over Internet postings about medical complaints...

[article here]

internet law for online community managers (book)

Last week I spent a few hours browsing the shelves at the University of Hertfordshire's law library. Most of the books on Internet Law are heavy on copyright, contract law, malicious hacking and the data protection act. Very few give libel and other issues that arise within user generated content spaces more than a mention.

Then I came across McNae's Essential Law for Journalists, which has nearly 90 pages covering defamation law. There are also chapters on contempt of court, the publication of children's details, race relations, privacy, and the Data Protection Act.

Written for journalists rather than lawyers, it's easy to understand and provides helpful real life examples of each legal principle. McNae's is the single most useful law resource I've come across for community managers.

McNae's Essential Law for Journalists

online anonymity - threat or under threat?

The St. Petersburg Times (Florida, USA) reports that "a judge has handed Hillsborough County Sheriff David Gee a victory in his quest to quell what he says are inflammatory postings to an Internet message board used by law enforcement. Gee now has the authority to serve subpoenas to the Web site, LeoAffairs.com, take depositions and try to identify anonymous posters who might work for the Sheriff's Office."

This is one of several recent cases (see Applica/Yahoo case or the Apple bloggers) in the US where ISPs and websites have been compelled by the courts to release the names or IP addresses of users. In the UK, the Motley Fool was ordered to hand over the IP address of a user who was then successfully sued for libel.

I'm always torn between whether anonymity is a good or a bad thing. On the one hand, it allows people, for example members of a police force who are troubled by what they see behind closed doors, to anonymously discuss and hopefully resolve the situation. They might not be able to do this without the protection that anonymity affords. Similarly, when I was conducting research of cybersex participants in 1995, I came across quite a few people who reported that the anonymity of their sexual encounters online gave them the ability to have positive sexual experiences. On the other hand, over the years I've seen so much bad behaviour by anonymous users of internet chat rooms and message boards that I realise anonymity comes with it's fair share of problems. So how do we get the balance right or is this a bit more like finding the right screw for the hole - what fits in one instance won't necessarily fit elsewhere?

(Image of policemen used under creative commons attribution license: photo by EXB-WDC on flickr)

libel in Korea for assuming identity, suit in US against message board john doe's

Korean prosecutors have charged a man with libel for posting indecent writings on the Internet using another person's identity. From the Korea Herald

--

Appliance manufacturer Applica is seeking to stop five anonymous users, which Applica believes are current or past employees, from posting on a message board at Yahoo Finance. The suit, filed in Broward Circuit Court, claims the posters violated company policy prohibiting employees from participating on Internet message boards and chat rooms relating to the company. (One of the "John Doe's" in the case has since posted saying he's cancelling his Yahoo account and denying allegations that he's an employee. http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=7078018&tid=wnd&sid=7078018&mid=3970)

Article originally published by The Miami Herald (registration req'd):

re-posted on the Yahoo Finance APN message board (no registration req'd):

(I was originally alerted to these articles by BNA’s Electronic Commerce & Law Report)

Yahoo closes (some) chat rooms

One thing I've always admired about Yahoo is that they offer users a wide variety of tools to create online communities but push the management and ownership responsibilities out to those who use those tools. Not only does this reduce the management costs and, potentially, the legal responsibilities of Yahoo, it also gives users a sense of ownership over the communities they build using Yahoo's tools.

Given the apparent "give users tools and they'll use them" ethos of Yahoo, it comes as a bit of a surprise to find Reuters reporting that Yahoo will no longer be offering user created chat rooms "amid concerns that adults were using the sites to try to have sex with minors."

"The user-created chat rooms in question, where Internet users converse in real time, had names including “Girls 13 And Under For Older Guys” and “Girls 13 And Up For Much Older Men” and were all listed under “education chat rooms,” Houston television station KPRC reported...KPRC reported last month that major advertisers including PepsiCo Inc., Georgia-Pacific Corp. and State Farm Mutual Automobile Insurance Co. removed their ads after the station found the ads were appearing on Yahoo user-created chat rooms that were aimed at sex with children. “As soon as we found out we pulled our ads,” said Pepsi spokesman Dave DeCecco. “We were totally unaware our ads were associated with those chat rooms — and that was back in April.” [whole article]

The move by Yahoo comes after a $10 million lawsuit was filed against the  last month on behalf of a 12-year-old molestation victim and following a long campaign by watchdog groups to persuade Yahoo and other large Internet portals to purge their sites of child porn. [whole article]

Yahoo's announcement follows a similar, and much criticised, move by MSN to close it's chat room service several months ago. Although MSN announced the closure on child safety grounds, many critics felt the closure was more likely to have been caused by financial considerations.

I've run the 1800+ member Cybersociology list for years on the Yahoo Groups platform with no problems at all and have appreciated the ability to manage the list, the way it's presented to users, it's format, etc myself. However, as an online community professional, I also understand the need, both from a legal and brand protection standpoint, and for the protection of users, for Yahoo and other service providers offering community tools to do something. So what's the answer?

When a child becomes the victim of a paedophile in a park, we don't hear people campaigning for all parks to be closed. Similarly, we often hear politicians and the media complaining that the internet is making it easier for terrorist and criminal organisations to organise their groups, but we never hear politicians and the media calling for the end of all postal mail or shutting down of the transportation or telephone networks for "security reasons".

Likewise, closing all chat rooms isn't the answer. Chat rooms can, and do, provide a social space for people, young and old, to make friends, build communities, work on projects together, and have fun. I do believe that moderation should be a legal and moral necissity for websites targeted at or likely to attract children but it is resource intensive and expensive. The only practical way to ensure that children stay safe when their online is for parents to realise that the internet is a public place and they have to take responsibility themselves for monitoring their children's online activity and for educating their children about the potential dangers of meeting people online. Schools, governments, non-profit organisations, and anyone offering unmoderated online spaces should also be working to educate users, particularly parents and children. The BBC's Chat Guide, a website backed up by materials, including a video for teachers to use in their classrooms, is a good example of a chat safety education effort. Other useful advice can be found at the following websites:

Thames Valley Police - chat safety

NCH Internet Safety Information

ThinkUKnow (Internet Watch Foundation)

Related Cybersoc Entries:

Moderation and Hosting - What? Who?

User generated content law - Yahoo Case

Libel threat to user tagging sites?

Tagging sites, like del.icio.us and furl (bookmark sharing) and flickr (for digital photo sharing), are rapidly becoming the new-new thing of the internet world.

For the uninitiated, these sites allow users to "tag" content with keywords, making it easier for others to find the content they are looking for. So, for example, I've recently posted a photo of the London Eye, looking towards the Houses of Parliament, on flickr and tagged this with London Eye, Parliament, Thames, Big Ben, and Embankment. Users searching flickr using any of these tags could find my photo.

One problem with user tagging is that different people approach the same subject from vastly different points of reference - as they always say, "one man's freedom fighter is another man's terrorist".

Most Londoners looking at my photo of the London Eye will know that, just outside the frame of this photo, is the very large HQ building of a multi-national oil corporation. Had I posted a photo of that particular building, and tagged it with "Environmental Terrorists" or "Murderers", could I be successfully prosecuted for libel? Could the site be prosecuted for libel??

Certainly having a negative tag associated with your name, brand, website, photo, etc could be damaging to your reputation so, on the surface of things at least, it would appear possible that user tagging could give rise to a libel case.

So is this pitfall of user tagging merely a thorn in the side or a cruise missle looking for a target?

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12 March '05: Someone emailed me about this entry and got me curious about what I'd find if I did type some potentially libellous keywords into flickr. I think this particular photo, found under the tag "rapist", illustrates the point of this blog entry well.

Message Board Law: 1 - Libel

Defamation law, which essentially protects people and companies from damage to their reputation caused by untrue statements (libel = publication/broadcast; slander = spoken) in the UK is often said to be more strict than in other countries. For more information on UK defamation law as it applies to the media see http://www.media-solicitors.co.uk/ and, if you are interested in UK law and blogging, see http://www.bigblogcompany.net/index.php/weblog/category/C20/

The main case sited by online community professionals in the UK is Godfrey v Demon Internet. The following two Guardian articles, both published on 18 December 2002, explain the case.

Report backs ISP libel law claims by Owen Gibson: http://media.guardian.co.uk/medialaw/story/0,11614,862227,00.html

Internet libel laws 'stifling freedom of expression'  by Clare Dyer: http://media.guardian.co.uk/medialaw/story/0,11614,862088,00.html

A more recent case in Scotland was settled out of court so doesn't set a legal precedent but is still informative:

Payout for newspaper online talkboard libel, by Claire Cozen, 9/9/04, The Guardian (see http://media.guardian.co.uk/medialaw/story/0,11614,1301056,00.html

It's not internet related, but the Times has been sued for libel by the Conservatives campaign director.

In what I originally (and mistakenly - thanks George for the correction and a few more links) blogged as an American case but which was, in fact, a UK case, the Motley Fool website was compelled by court order to reveal the registration details of a user who posted libellous comments on a UK message board at the site. According to Lucy Sherriff, in an article for The Register,

Benjamin was unmasked by a court order compelling Motley Fool to reveal the details it held on the poster known as "analyser71". The IP address associated with his postings was then traced back to a computer at his then employers, Kyte Fund Management.

The Motley Fool case, thought to be the first where a user posting anonymously has been successfully sued for damages in the UK, has also been covered by The Guardian and The Sunday Times. Motley Fool has published it's own press release about the case.

Apple, similarly, has compelled the US courts to force blog service providers to reveal the registration details of users and has used this information to force bloggers to reveal the sources of "insider" information at Apple.

In the UK we have the protection of the Data Protection Act which means, without a court order, ISP's and internet publishers CAN'T reveal personal registration information without a court order having been issued forcing them to do so. But it's likely (as was seen in the Motley Fool case) that the courts would supply such an order if a claimant in a civil libel case requested one. What seems unclear, based on the Demon Internet case, is whether ISP's and internet publishers who were notified of libellous message board posts, and who took expedient action to remove those posts (Demon didn't, and was criticised in the judgement for this), could still be found guilty under UK libel law.

In Reynolds v Times Newspapers Ltd (1999) . In the his judgement, Lord Nichols of Birkenhead outlines the current position of UK defamation law then proceeds to list ten considerations which might help publishers to form a defense. This has become known as the "Reynolds Defense". Lord Nichols writes:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

(PS. I'm not a lawyer. The information above is published to help readers understand the current issues within UK libel law, not to provide legal advice or advice which can be acted upon. Please consult a legal professional.)
 

31 March 2005: Miranda Mowbray has written an excellent paper discussing the "Philosphically Based Limitations to Freedom of Speech in Virtual Communities" that some readers might find to be useful background for this blog entry.