A Little Bit About Libel Law (Inspired by the Atrios affair)

I'm a regular reader of Eschaton, but I had a busy day, so it was something of a shock to discover this evening that he's gotten a cease-and-desist letter from some poor deluded soul who claims he's being libeled both by Atrios and by commentators on the Eschaton blog, and that half the blogs in the world have weighed in on it.

Plenty has been said about the merits, and I won't add to it. (See here for one roundup of links.)

But it might be useful to summarize some of the relevant cyber-law principles, which differ slightly from ordinary libel law. In what follows I treat the cyber-law aspects (only) of three issues: (1) Libel by a blogger; (2) libel by a commentator to a blog; (3) whether a lawsuit can force an ISP to reveal the name of an anonymous blogger.

Please note the disclaimer: I'm not your lawyer. This isn't legal advice, it's an academic essay regarding general principles. If you are threatened with a lawsuit, you need a lawyer who will consider the law in your jurisdiction, recent developments and, especially, specific facts pertaining to your situation — facts that might change everything.

As regards any libels he authors, a blogger is in the same position as any other author.

As regards anything said by the commentators, a blogger is in a strong legal position, although how cheaply and surely he can beat off a lawsuit may depend on where he lives. [Please note that regardless of what follows, I think that in any circuit, once a blogger has an actual libel brought to his attention, both prudence and especially good taste would counsel removing it.]

The key text is 47 U.S.C. §. 230(c ), (c ) Protection for ''Good Samaritan'' blocking and screening of offensive material

(1) Treatment of publisher or speaker

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.

Furthermore, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

An “information content provider” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational systems.” 47 U.S.C. § 230(f)(2).

In Batzel v. Smith, 333 F.3d 1018 (2003), the 9th Circuit held that § 230 protects the moderators of a discussion group. The moderators were thus immune from liability for defamatory messages posted to their groups by others—and the sole person liable for that defamation is the author of the message. According to the 9th circuit, this is true whether or not the moderator exercises editorial judgement as to which messages to post; under any plausible reading of § 230 if this is true for discussion group moderators then it should also be true for bloggers, especially if the blog just automatically posts reader-generated content. A similar rule applies in the Third, Fourth, Tenth, three other circuits, and is often called the Zeran rule after the Fourth Circuit case that first enunciated it. See Green v. America Online, Inc., 318 F.3d 465 (3d Cir.2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.1997); Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980 (10th Cir.2000).

It's true that just recently a California state court of appeals adopted a narrower view of § 230, emphasizing that the statute shouldn't be read to protect those with guilty knowledge of the libelous content. Barrett v. Rosenthal, —- Cal.Rptr.3d ——, 2003 WL 22346578 (“We agree with appellants that the statute cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.”). That doesn't apply to the automatic posting of comments, so it's probably not relevant here, although it might suggest liability for leaving something online once you have reason to know it's defamatory.

It's also true that Judge Easterbrook on the influential Seventh Circuit offered some contrary dicta the other day in Doe v. GTE Corp., —- F.3d ——, 2003 WL 22389811, suggesting that the Zeran case provides too much immunity to Internet service providers, and that it should not be read to apply “when some rule of state law does require ISPs to protect third parties who may be injured by material posted on their services.”

While I think the Zeran decision is right, and would likely apply to the automated posting that applies to blogs in any circuit, the amount that a blogger would have to expend to vindicate this position, and the certainty of victory, obviously depends on where he lives.

And in the case of Atrios, we don't know where he lives, because “Atrios” is pseudonym.

Which brings me to the next issue: can a plaintiff force an ISP to reveal the identity of an anonymous blogger?

The short answer is that it depends. Here is what I wrote about this last January, and I have no reason to believe anything significant has changed since then,

The ordinary legal means for a party aggrieved by an unknown but potentially knowable party to achieve redress is to file a “John Doe” lawsuit against the unknown party. In so doing the plaintiff not only avoids any statute of limitations, but secures access to judicial process to help secure the information necessary to identify the person who should be named in the lawsuit. See generally Roger M. Rosen & Charles B. Rosenberg, Suing Anonymous Defendants for Internet Defamation, 19 No.2 Comp. & Internet L. 9 (2002). In most cases implicating anonymous internet speech, that means a subpoena directed against the ISP or bulletin board operator or a related discovery request aimed at one presumed to know the speaker's identity. Sometimes the recipient of the subpoena notifies its customer, who then can move to quash the subpoena, or files for a protective order. The outcome of these quashing actions have varied. The earlier cases tended to uphold the subpoenas, leading to cries of outrage about the chilling effect on First Amendment activities. More recent cases have tended to be more solicitous of the speakers' rights, See Anderson v. Hale, 2001 WL 503045 (N.D. Ill.) (holding that disclosing information about publicly known members of a white supremacist organization would not chill their First Amendment rights to freedom of association because it is not directed at the heart of the organization’s protected activities, but disclosure that aims to reveal the identity of the organization’s anonymous members directly chills associational rights.), but it remains to be seen how the higher courts will balance “the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants,” Dendrite International, Inc. v. John Doe, No. 3, 775 A.2d 756, 760 (N.J. Super. 2001), against the First Amendment rights of speakers.

In Dendrite International, Inc. v. John Doe, No. 3 a New Jersey state court of appeals ruled that online posters can keep their identities secret in most cases, and crafted rules to protect. Id. Dendrite, a maker of sales-force technology, sued to reveal the identities of several message-board posters, claiming they posted false statements about the company. In affirming the denial of the discovery request, the Dendrite court set guidelines for New Jersey trial courts to follow when companies sued to determine the names of anonymous posters, although it emphasized that each case should be decided individually:

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.

The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. … the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed. [Id. at 760-761]

The court, however, immediately demonstrated that this is far from an absolute protection for anonymous speakers. The same day that the New Jersey appellate court decided Dendrite, it also decided Immunomedics, Inc. v. Jean Doe, 775 A.2d 773 (N.J. Super. 2001). Here, applying the Dendrite test, the court determined that a biopharmaceutical corporation was entitled to disclosure from Yahoo! regarding the true identity of Jean Doe, an anonymous poster to a Yahoo! message board, because the corporation had presented sufficient evidence that the user was an employee of the corporation who had breached a confidentiality agreement by posting to the message board. Id. The court stated that the employee had “contracted away her right to free speech,” and that by “choos[ing] to … violate an agreement through speech on the Internet [she] cannot hope to shield [her] identity and avoid punishment through invocation of the First Amendment.” Id. at 775, 777-78.

Similarly, in John Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001), 2TheMart.com sought a subpoena to force InfoSpace, and ISP, to reveal the identities of 23 posters who used pseudonyms on InfoSpace's invesment-related message boards. 2TheMart.com was defending itself against a class-action lawsuit alleging the company engaged in securities fraud, but the anonymous posters were not parties to the case. In the course of refusing to order InfoSpace to disclose the names the court fashioned a four-pronged test that also sought to balance the interests while giving due but clearly not overwhelming weight to the writers' interest in remaining anonymous,

Whether (1) the subpoena seeking disclosure was brought in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to a core claim or defense; and (4) the information sufficient to establish or disprove the claim or defense is unavailable from any other source.

See id. at 1095.

Once again, the balance is considerable solicitude towards the citizen's interest in remaining anonymous, but not to the point that it inevitably trumps competing values.