A Consuming Experience: Blogging in the USA: defamation and privacy/anonymity

Saturday 8 October 2005

Blogging in the USA: defamation and privacy/anonymity

In the U.S., at least, it seems bloggers are free to express certain negative opinions about another person in their blogs anonymously, and their ISPs can refuse to reveal who they are, even when sued by the person who claims he's been defamed by them - however, if what they said could be shown to be basically defamatory, e.g. if they said their negative statements were facts rather than personal opinions, the ISP could be forced to disclose their identities.

In a case decided earlier this week, the Delaware Supreme Court thought that, in the interests of freedom of speech, it wasn't enough for the accuser (a local public official) to say he had a "legitimate, good faith basis" for his defamation claim, because it would too easy for people to gag others by threatening to sue, or use knowledge of the bloggers' identities for intimidation or revenge, even when the claim was trivial: "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all".

The court will order ISPs to reveal who the bloggers are, though, if the accuser can meet a "summary judgment" standard of proof - essentially, make out the basic elements of a defamation case. The most important element is that the challenged statement isn't legally considered defamatory (even if it's negative or critical), if it is an expression of opinion, as opposed to a statement of fact.

It's good that the court recognised the importance of anonymity to freedom of speech and also that most bloggers only express opinions, they don't claim to state facts: "chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely." Also, the court pointed out a unique feature of the internet, that "a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements. The plaintiff can thereby easily correct any misstatements or falsehoods, respond to character attacks, and generally set the record straight. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation as a result of an anonymous defendant’s allegedly defamatory statements made on an internet blog or in a chat room."

(Via Out-law, which also quoted a lawyer with Public Citizen as saying: "The court’s determination to require sufficient evidence before a critic is outed will go a long way toward reassuring citizens that they remain free to anonymously criticise public officials.")

In the UK, though, it seems it's still not entirely clear to what extent bloggers can be legally liable for what they blog, with the risk of being done for copyright violation (there is no proper right to "fair use" here, unlike in the USA) as well as defamation. Obviously all this is becoming increasingly important and topical. The UK government recently consulted on the possibility of extending protection from legal liability to hyperlinkers, search engines etc, and it's interesting that Google are lobbying Washington on matters such as copyright and "intermediary liability" for search engines. I hope someone equally powerful will be lobbying the powers that be here in the UK and Europe. After all, the internet knows no borders, and search engines could just as easily be sued here as in the USA. Let's hope they bring some clarity soon, and strike a fair balance between protecting bloggers and protecting who and what they blog about.

In the meantime, anything I say in my blog about anyone is of course only an expression of my personal opinion!