In Light of Lawsuits, Publishers May Need to Rethink Blog Strategy

As the use of the internet as a forum for posting comments on blogs and social networking sites has exploded, so has the number of lawsuits brought by those seeking restitution for alleged defamatory statements by anonymous posters. Because the Communications Decency Act of 1996 explicitly shields owners of websites hosting third-party content from liability, litigants have sought to obtain information about the posters themselves, creating complex questions of privacy rights for publishers. What information should publishers require from contributors, and when should they agree to hand it over to the courts? What level of involvement in the production or posting of blog content puts publishers themselves under the threat of liability? These and other concerns should be on the mind of every publisher as this evolving area of media law works itself out on the state and federal level. Publishing Executive Inbox asked Damon Dunn, a partner with the Chicago-based law firm of Funkhouser Vegosen Liebman & Dunn Ltd., for his perspective on this issue. Dunn has consulted with or represented media outlets in a number of defamation lawsuits. He also recently handled a case involving a business defamed on a number of blogs by posters using assumed names.INBOX: Print newspapers and magazines have always required contact information for those wishing to contribute comments in the form of letters to the editor, and have always been liable for such third-party content. Why is the legal situation different for blogs and other online content? DAMON DUNN: This anomaly arises from the enactment of Section 230(c) of the Communications Decency Act, which 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." Section 230 was intended to encourage the continued growth of the Internet and avoid the "chilling effect" that the specter of liability could have on online speech. Most courts interpret the Act to mean that publishers operating an "interactive computer service" (which has been defined to include blogs and other websites) are not liable for defamatory content that third parties post on their websites, including user comments. This is true even though the publisher would be liable for publishing the same defamation in print or broadcast medium. Section 230 preempts inconsistent state laws but it does not extend to intellectual property rights violations.INBOX: There were several cases in the early years of the Internet where people attempting to sue for libelous third-party comments appearing on websites were rebuffed by the courts. Is the attitude of the courts now changing?DUNN: Congress may not have anticipated how broadly Section 230 would be applied by the courts to protect internet service providers. While some courts have expressed reluctance to immunize content that the publisher either induced or participated in generating, there are decisions going so far as to hold that a publisher is immunized even if it selects the third party content for publication or pays for the rights to the content. We can expect continued litigation in the margins whenever a plaintiff can point to some involvement by the publisher other than simply providing a forum for commentary.INBOX: How are user privacy concerns now becoming an important issue? Has there been an uptick in the number of instances where publishers have had to hand over information about users? If so, do you expect this trend to continue?DUNN: As anonymous online comments increase, we are seeing a corresponding increase in subpoenas seeking the identity of the authors of allegedly actionable posts or even the identity of potential witnesses to the event under discussion. Many courts have ruled that the First Amendment right to speak anonymously requires that a litigant meet certain conditions before a subpoena for an anonymous commenter's identity will be enforced. These requirements can vary from state to state. When dealing with unsolicited comments, a subpoenaed publisher might invite the author to intervene and defend his or her own privacy rights.INBOX: What is your advice for publishers in the face of the growing number of lawsuits related to blog comments? What are the risks involved with turning over—or not turning over—information?DUNN: There are both legal and business risks related to revealing the authors of anonymous comments, particularly where the website's terms and conditions expressly or implicitly promise anonymity. Exposed authors have sued for breach of contract and invasion of privacy. Yet, failure to timely respond to a subpoena may forfeit the right to oppose it and ultimately result in fines. Most courts do believe that a publisher has standing to oppose a subpoena to protect the third party's anonymity. An attorney can file a motion to quash the subpoena but it also may be possible to negotiate a resolution and/or obtain additional time for the anonymous author to intervene on his own behalf.INBOX: How do you recommend publishers change their approach to blogs (and other online commentary) to avoid problems?DUNN: Terms of service should afford discretion to disclose personal identification information when appropriate, given the nature and purpose of the website. At a minimum, there should be leeway to comply with court orders or to alert authorities to threats of physical harm or potential criminal activity. More news oriented sites are requiring users to register by entering their identity information before posting, in part because those publishers believe the cloak of full anonymity has led to deterioration of the discussions and deters valuable contributions. The comments still can be posted anonymously. Another option is to expand the same model used in print and broadcast media by requiring users to post under their true name. Of course, few publishers can devote the resources necessary to actually confirm the validity of registrations, let alone check for impersonators.INBOX: What needs to happen (new laws?) to ensure the rights both of publishers and those who feel they have been defamed?DUNN: Although courts have effectively immunized publishers for third party defamation under the CDA ... [the] scope of immunity may vary, depending on the jurisdiction. Moreover, publishers cannot foresee where a claim may arise, so their liabilities will likely be governed by the lowest common denominator. Ultimately, Congress might decide that the scope of immunity afforded by the courts is broader than it intended. In that case, Congress could amend the Act to limit immunity in certain contexts, for instance where the speech is commercial in nature or appears to facilitate illegal conduct.

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In Light of Lawsuits, Publishers May Need to Rethink Blog Strategy

James Sturdivant

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