Three weeks ago, I attended the Washington Post Bloggers’ Summit, along with fellow DeafDC.com bloggers David Stuckless and Oscar Ocuto. The three-hour meeting was punctuated with a nice food spread that included your garden variety selection of vegetables, cubed cheeses, chicken satays, and huge chocolate-dipped strawberries that seemed to have been injected with steroids.
The summit was an opportunity for Post executives to discuss and explore ways to collaborate, and possibly generate revenues for local bloggers. That was nice, now on to the real juicy stuff. A presentation was given by Jonathan Hart, an attorney with the Online News Association, about the possible legal ramifications of blogging.
If you think that the First Amendment gives you carte blanche to blog about anything, think again. About a year ago, a local political activist, David Millum, wrote libelous statements about a lawyer on his blog. That lawyer, Rafe Banks III, sued and the end result was a $50,000 judgment against the blogger. This was the first time a U.S. jury had found a blogger guilty of libel.
What about those sometimes colorful comments left on the blogs by third parties? The color must be green for Sue Scheff, because she won a $11.3 million defamation lawsuit against a woman who posted negative comments about her on a website that she maintained. Scheff herself is aware that the award is an unusually large amount, but she wanted to drive home the point that people should not criticize other people unfairly on the Internet. “I’m sure (Bock) doesn’t have $1 million, let alone $11 million, but the message is strong and clear,” Scheff said. “People are using the Internet to destroy people they don’t like, and you can’t do that.”
Banks and his attorney sought far more than the $50,000 awarded in damages. The suggested range was $400,000 to $2 million in punitive damages, and Banks surmised that he wasnâ€™t awarded that amount because he was a public figure. Are public figures held to a higher standard regarding burden of proof? The answer is yes, according to Electronic Frontier Foundation FAQ page:
Yes. A private figure claiming defamation â€” your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop â€” only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement.
A public figure must show “actual malice” â€” that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.
In order to win cases like these, public figures must show â€œactual malice.â€ However, private citizens do not have that burden of proof, so that may be the reason why Scheff was able to obtain a higher monetary judgment.
Hart warned against scenarios outlined above. One of the bloggers at the summit asked about publishing information that may not be factual but most people are saying the same thing anyway on the Internet. â€œHaving a lot of other people saying the same thing may get you co-defendants,â€ Hart retorted.
One lawsuit has even included a separate blog as a defendant because the blog linked to the story which gave it a â€œwide audienceâ€. In any case, the court was troubled by the addition of the separate blogger to the case simply because the person had mentioned them. Yes, this is the Washingtonienne lawsuit that is now famous among DC area bloggers.
Back to the $50,000 verdict. That amount is chump change for traditional media companies. But for a blogger with a very slim wallet, itâ€™s a huge pile of money. Hart strongly recommended that bloggers get liability insurance so they wonâ€™t lose their homes in a lawsuit. However, most bloggers who write out of the comfort of their homes operate under the mistaken assumption that their homeownerâ€™s insurance would cover the risk of libel lawsuits. Robert Cox, president of the Media Bloggers Association, explained that a lot of insurance companies are rewriting policies to explicitly exclude losses related to blogging. He said:
Put simply, free speech isn’t free. Publishers (and you are all publishers) without the financial/legal resources to defend themselves are going to eventually find themselves unable to continue publishing. Whether you realize it or not you need to have liability insurance coverage. The future of blogging/citizen journalism depends on a workable liability insurance product.
But in an article published 13 years ago, Mike Godwin said:
So, I’m going to stick my neck out and make a prediction: in spite of the fierce invective, strong feelings, and often-defamatory statements one tends to see in net.arguments, I predict that libel lawsuits will never be a significant factor when it comes to heated online discussions. It’s far easier to hit the “reply” key.
These days, we are living in a more litigious society so Godwin’s statement may no longer be true. All of this information has been an eye-opener, and I hope that it wonâ€™t be a wallet-opener for me. After all, money talks, and mine says, â€œBye!â€
If you would like more information about bloggerâ€™s rights, and the different case precedents, visit the Electronic Frontier foundation at www.eff.org, the Online Association at www.journalists.org, Media Law Resource Center at www.medialaw.org, and Chilling Effects Clearinghouse at www.chillingeffects.org.