s [ Pobierz całość w formacie PDF ]

 public figures, people who must meet a much higher stan-
dard to prove libel. You can t libel a public figure, even if the
story is false, unless you publish it with what s called  malice,
which in this instance means either the standard definition of
the word or indifference to whether the story is true or not.
In any event, most bloggers probably don t have enough
money to make it worthwhile to sue, assuming, of course, that
winning monetary damages is the plaintiff s goal. However, if
the goal is to shut someone up, just the threat of a lawsuit can
do the trick because the cost of defense can be huge.
That s why Reynolds called himself  an insurance agent s
dream  that is, adequately insured for any trouble.  The real
reason is not for fear of libeling someone, said the lawyer who
is well aware of how not to defame others.  It is to guard
against having someone sue me into bankruptcy out of spite or
to shut me up.
Even if a blogger can libel someone else with her own com-
ments, a blog owner is probably not liable for what someone
else writes in the comments, according to Jack M. Balkin,
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here come the judges (and lawyers)
Knight Professor of Constitutional Law and the First Amend-
ment and director of the Information Society Project at Yale
Law School. On his Balkinization weblog,269 commenting on an
appeals court ruling, he wrote that the 1996 Telecom Act  pro-
tects people who run web sites from being sued for republishing
the libels of another person.
 This does not mean that bloggers are immune from libels
they themselves write, Balkin continued.  It means that they are
immune from (for example) libels published in their comments
section (if they have one) because these comments are written by
other people and the blogger is merely providing a space for them
to be published. Congress wanted to treat operators of chat-
rooms and other interactive computer services differently from
letters to the editor columns in a local newspaper. 270
So far, bloggers may have avoided the legal chopping block,
though threats against bloggers abound. Commenters on Inter-
net forums have had more trouble. In particular, some compa-
nies have been especially assertive in financial forums, demand-
ing from Internet service providers the identities of people who
have made allegedly defamatory postings.
Policies on how to deal with such requests vary among
Internet service providers. Some will turn over subscribers per-
sonal information without telling the customer. More honor-
able ones won t; they ll tell the subscriber in order to give him
time to challenge a subpoena. In some cases, these  John Doe
subpoenas are granted, especially when the posting is libelous
on its face.
But civil-liberties groups have asked judges, sometimes suc-
cessfully, to apply a tough standard in these cases. In one, which
started in 2001, a Canadian pharmaceutical company called
Nymox demanded that Yahoo! hand over the names and other
subscriber information regarding some  John Does who d been
posting to the service s Nymox message board. There was no
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we the media
doubt that the messages were inflammatory, alleging corporate
malfeasance, but the question was whether they rose to a level
at which the company had a legitimate defamation case.
The Stanford Cyberlaw Clinic at Stanford Law School
fought the subpoenas. In early 2003, the clinic won an impor-
tant ruling from a federal judge in San Francisco. He wrote that
Nymox, in order to win its motion, had to demonstrate, among
other things, that the statements posted on the Yahoo! board
were, in fact,  actionable  in other words, Nymox needed to
show that a judge wouldn t dismiss the case for lack of evidence
should an actual defamation suit be filed. In addition, he wrote,
Nymox had to show that the postings in question had actually
damaged the company.
One statement was clearly defamatory, the judge said. But
he noted that it was essential to consider the context of the mes-
sage, not just its content:
The statement was posted anonymously on an Internet mes-
sage board. The tenor of all the submitted postings would
lead the ordinary reader to regard their contents skeptically.
Nymox has made no effort to trace any injury to the door-
step of this posting. Although Nymox said at the hearing,
weakly and vaguely, that its stock fell after the postings were
made, no investor would have relied on such manifestly unre-
liable information.
He granted John Doe s motion to quash the subpoena, allowing
Doe to remain anonymous.271
I m no fan of fishing expeditions. At the same time, the anti-
Nymox poster in this case didn t rate anyone s sympathy on an
ethical basis because the postings were crude at best. But pre-
serving the value of anonymity, and robust speech, is vital. The
judge, striking an appropriate balance, said there s no right to
defame and damage others under a cloak of anonymity. The
company just didn t make its case.
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here come the judges (and lawyers)
jurisdiction
If I call the judges of the High Court of Australia some of the
most obtuse people on the planet, do I need to cancel my next
trip Down Under? Possibly, because one or more of them may
decide that I have defamed them by offering such an opinion.
Thanks to their ruling in a 2002 lawsuit, they have created a
right to sue me on their home turf, under their own restrictive
defamation laws, for what I ve said on my blog and column,
both of which are based in the U.S.
The case in question is about an article that appeared in
Barron s, a Dow Jones weekly newspaper published in the U.S.
A corporate executive in Australia didn t like what it said about
him, so he sued in Australia, effectively arguing that Internet
publication was like putting out a local newspaper in every
jurisdiction. Astonishingly, the High Court agreed.272
The ruling was a blow to the open nature of the Internet.
To say that defamation occurs where something has been read,
as opposed to where it was posted, is an invitation to forum-
shopping and abuse by plaintiffs. [ Pobierz całość w formacie PDF ]