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Libel Ruling Provides Protection for Forums, Not Individual Bloggers

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Although newsletter publisher gets favorable finding from appeals court, he sets poor example for online journalists

Putting a word such as "Weblog," "blog" or "blogger" into your news story's headline seems to do strange things to people. First, every Weblog known to humanity has to link to your story. Then, you find your story atop the Popdex popularity index. Finally, you have people drawing conclusions that have nothing to do with your story.

Exhibit A: Xeni Jardin files a story for Wired News with the unfortunate headline, "Bloggers Gain Libel Protection." After the story hits No. 1 on Popdex, Jeneane Sessum calls for a "National Blogger Libel Day" and writes nasty things about Lou Gerstner, the former IBM honcho, on her blog. OK, Sessum is only joking and notes she would never want others to say nasty things about her.

But the point is clear: Sensational headlines get attention, but the real gist of the story might get lost. In this case, Wired News was not alone -- both The Wall Street Journal and USA Today wrote the same headline on the AP report about the libel ruling: "Court Decision Protects Bloggers From Libel Lawsuits." What really happened in this ruling is much more complex than that and only protects third-party content that's being passed along to an e-mail listserv, a forum or perhaps a Weblog's comments section. When a blogger starts making original commentary, he/she is liable for these comments.

One of the problems with this story is the appearance of simplicity and the idea that small publishers would be protected from libel suits. Reporters, editors, online publishers and free-speech advocates generally like this idea. Cindy Cohn, legal director of the Electronic Frontier Foundation, told Wired News: "On blogs or e-mail lists, people aren't necessarily selling anything, they're just engaging in speech. That freedom of speech wouldn't exist if you were held liable for every piece of information you cut, paste and forward."

The whole story

That might be true, but there's more here than just cutting and pasting. It started back in 1999, when Robert Smith e-mailed Ton Cremers, the operator of the Museum Security Network Web site and e-mail newsletter. Smith had done some contracting work for lawyer Ellen Batzel and told Cremers that he heard her say she was a descendant of a Nazi official and had some art that may have been looted from Jews in Europe. Cremers' site covers stolen artwork, and Nazi-seized art has been a hot-button issue in the curator community.

Cremers then included Smith's e-mail message in a newsletter that went out to about 1,000 subscribers.

Baztel filed a $10-million defamation suit in U.S. District Court against Smith, Cremers and others. In court documents, she denied telling Smith that she was related to a Nazi official, and she said that her artwork was obtained legitimately. Cremers filed a motion to dismiss the suit, alleging, among other things, that California law protected him because his site was an "interactive computer service." The law 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." The District Court denied his motion, and Cremers appealed to the 9th Circuit U.S. Court of Appeals. 

The 9th Circuit found in favor of Cremers, ruling that he did run an "interactive computer service" as protected in the Communications Decency Act of 1996. The idea of this law was that a service such as AOL could run chat rooms and bulletin boards without being liable for what was being said by participants. However, the appeals court sent the case back to the District Court to determine whether Smith really intended to have his e-mail published in the newsletter. Smith has stated that he never intended for his e-mail to be published in Cremers' newsletter. (Cremers did not respond to my queries.)

Paul Levy, a lawyer for the advocacy group Public Citizen, had submitted a friend-of-the-court brief for Cremers in the appeals case. He said the ruling "represents a major victory for free speech on the Internet" by broadening the term "interactive computer services" to include more than just big service providers such as AOL. Levy told me he thought Batzel might drop the case with this ruling, because no one was left with deep pockets to pay restitution.

But Batzel told me she has no intention of dropping the suit, adding that she knew when she started the case she was on new legal territory and it could take 10 to 15 years to play out. "We're going to ask the court of appeals to reconsider its standard and ask the court not to send the case back to the district level," she said. "No matter what the District Court decides on intent, the case will be appealed anyway." Batzel said the Smith e-mail was published all over the world, with Cremers and his associates sending it out to CBS News and other organizations in hopes of breaking a big story. "He should have called me, but never did. And he should have printed a retraction," she said.

Cremers practices a form of meta-journalism made popular by e-mail newsletters, such as Slate's Today's Papers, and many bloggers. He posts articles from mainstream news sources along with a smattering of e-mails from museum types. Should he really have posted such a scathing e-mail without checking the most basic facts -- or even asking Smith if he wanted the e-mail posted?

Murky waters

Instead of starting a "libel-a-thon," many lawyer bloggers (known by some as "blawgers") quickly knocked down the notion that they were gaining broad freedoms in the ruling. Jack M. Balkin, a Yale Law School professor, posted a thoughtful analysis of the ruling, saying that bloggers can "of course" be sued for libel. "If bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says," he wrote on his blog. "The 9th Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper."

That might constitute a legal win for e-mail publishers, but it won't do much for their reputation as journalists. Wouldn't they rather be treated as real journalists doing credible work, rather than be treated as another form of chat room?

Sure, someone running an e-mail newsletter or Weblog should not be liable if they mention third-party material from outside news sources. Nor should they be liable for people who spout off on their forums. But they need to take some personal responsibility for information in an editorial format. Big news sites have been fearful of freewheeling online forums for years, but they might feel differently after this ruling. Then again, wary publishers might not go for that much free speech in the end.

Defense attorney and blogger Jeralyn E. Merritt told me "unmoderated forums and lists have a tendency to get ugly, spammed and trolled, which makes visiting the site unpleasant. This in turn would defeat the purpose of the media company in providing the Internet service as it would not be means of attracting or keeping visitors."

And just how pleasant is the experience for Cremers' readers, finding a piece of possibly libelous e-mail in their dispatch? A Salon story on the case in 2001 included comments from disgruntled readers who felt Cremers had made a bad judgment by including Smith's e-mail. One reader said Cremers was jeopardizing the forum's credibility "by blithely passing along what are, without dispute, unsubstantiated rumors."

In fact, 9th Circuit Justice Ronald M. Gould argued in his dissent that the court's ruling would lead to "professional rumor-mongers and gossip-hounds [spreading] false and hurtful information with impunity." As for Cremers' role, Gould wrote: "If a person is charged with screening all communications to select some for dissemination, that person can decide not to disseminate a potentially offensive communication. Or that person can undertake some reasonable investigation. Such a process would be relatively inexpensive and would reduce the serious social costs caused by the spread of offensive and defamatory communications."

Public Citizen's Levy said he understood Gould's point, but said that it is more important to prevent speech from being stopped. With more stringent rules, a person like Cremers wouldn't post anything anyone sent him other than vetted stories from big news organizations.

In the end, the real onus is on Cremers and the individual publisher/writer/editor. Under this ruling, the publisher would be protected from libel for reprinting e-mails intended for publication -- even if the content is libelous. But that publisher would be setting a poor example for online journalists by not making the most basic checks of the material to make sure they're not injuring someone by disseminating the story.

Blogosphere chart update

For fans of my graphical depiction of influential Weblogs, the graphic has been updated, with hyperlinks directly from the graphic to the blogs. Plus, some ideological problems have been resolved with a couple blogs. Check out the new updated graphic here: http://www.ojr.org/ojr/uploads/1056011147.htm

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Related Links
AP: Court Decision Protects Bloggers From Libel Lawsuits
Allied: It's National Blogger Libel Day!
Balkinization: Can Bloggers Be Sued for Libel?
Batzel vs. Smith: Full 9th Circuit Ruling
Museum Security Network
Public Citizen
Salon: The case of the forwarded e-mail
Slate's Today's Papers
TalkLeft: the Politics of Crime
Wired News: Bloggers Gain Libel Protection
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