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11 Comments so far (Add 1 more)

1. I agree that we’re basically looking at a SLAPP in this instance - TP aren’t worried about trade secret issues - they’re simply looking at any excuse they can to silence any critics.

   The issue that bloggers may be sued for their comments is almost certainly something TP never anticipated, but the publicity from this case should help galvanise the rights of bloggers, not least in SLAPP issues.

   2c.

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   1. Brian Turner on September 2nd, 2005 at 10:02 am

2. In my painfully personal experience, while libel is indeed fairly common, it’s very difficult to prove here in the US at least. But be weary if you decide to criticize a former employer–they may have additional rights. I’ve seen just as many references in lawsuits to violations of confidentiality, non-disclosure, non-compete and other severance agreements. I’m not sure if it’s harder or easier to prove these than libel, but please make copies of any agreements you sign when you start and end your time with an employer.

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   2. Todd V. on August 30th, 2005 at 7:53 am

3. But, the funny thing about the libel post was that I wrote it back in February, and shot it out to a a handful people, and it got no pick up, or from some people just dismissed out of hand (and quite rudely, actually).

   I reposted it a few weeks ago, because it seems more timely now than over (and really now more than ever) because as more and more people begin to blog professionally and personally, these are issues that people aren’t really thinking about while they write and accept comments. I do have a blog policy, but it is likely not enough.

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   3. Jeremy Pepper on August 29th, 2005 at 3:27 pm

4. The real issue for bloggers and aggregators is how they respond to notices that the information is either false, defamatory, or proprietary/confidential/trade secret. Aggregation by automation or assertions that you do not moderate are irrelevant. If you don’t moderate you will simply be white noise. And if you do not respond you will simply be short-lived white noise.

   The question of jurisdiction is actually becoming much clearer. The company would have sued Aaron in Nevada regardless of where Aaron blogs. It would have been up to Aaron to contest the claim of jurisdiction. The Nevada court would focus on where the harm (if any) was directed.

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   4. Daniel Perry on August 29th, 2005 at 10:32 am

5. I wonder what would have happened Aaron was based offshore - say he blogged from Nigeria - would they have sued him there? The mind boggles - what a complicated world publishing is.

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   5. David Gibbons on August 29th, 2005 at 9:47 am

6. Thanks for this excellent post - I’m off to craft my comments policy.

   Would appreciate your thoughts on the responsibilities of agregators of blog content. If this happened on a shared blog, would all the bloggers be liable (not that aaron is)? What about automated agregators, like technorati - what is their responsibility for moderation? Any thoughts appreciated.

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   6. David Gibbons on August 29th, 2005 at 9:44 am

7. An anti-SLAPP counterclaim is unavailable to Aaron. Nevada has a very limited Anti-SLAPP statute. It is used to protect the right of citizens to petition for governmental relief. Unlike California’s Anti-SLAPP statute, Nevada does not extend the use of its Anti-SLAPP protection to a free speech issue.

   Amy correctly points out that SLAPP lawsuits have involved defamation issues. In the very well reasoned 2004 California case of Barrett versus Rosenthal, the California Court of Appeal reversed the trial court’s dismissal based on California’s anti-SLAPP statute. In the California Court of Appeal decision, the appellate court noted that in the Drudge Case, Federal District Judge Friedman granted a motion for summary judgment based on a total immunity argument under a federal statute, 42 United States Code Section 230. The Barrett Court noted that Judge Friedman “… gagged on the unfairness that resulted from such a broad immunity.” The appellate court rejected the trial court’s application of broad total immunity and reversed the trial court’s dismissal of the lawsuit.

   “Because [47 United States Code] section 230 does not ‘”’speak directly’ to the question addressed by the common law”‘ … and is capable of more than one construction, we conclude that the statute should not be interpreted as having abrogated the common law principle of distributor or knowledge-based liability. Rosenthal has not alleged any fact that would prevent her from being subjected to distributor liability under the common law. Appellants allege they notified her that Bolen’s statement contained false and defamatory information and asked that the statement be removed from the newsgroups on which Rosenthal posted it, that she refused these requests and thereafter repeatedly reposted the allegedly defamatory statements on Internet newsgroups. Rosenthal’s answer denies the statements were false but admits all of the other allegations. However, her special motion to strike under the anti-SLAPP statute was not based on the truth of the statements that Polevoy engaged in criminal conduct [stalking of females] nor did it deny she knew or had reason to know of the defamatory character of these statements. The motion was based solely on the grounds of the federal immunity, appellants’ inability to show ‘”actual malice,”‘ and their failure to plead special damages. Furthermore, Rosenthal has never asserted that, due to the technology or for any other reason, she could not easily have withdrawn and/or corrected the allegedly defamatory materials she posted.”

   The appellate court concluded: “Because [47 United States Code] section 230 does not restrict distributor liability under the common law and at this preliminary stage of the litigation no reason appears why Rosenthal cannot be subjected to such liability, the trial court erred in finding that appellant Polevoy’s defamation claim was barred by the statute.”

   The case is pending before the California Supreme Court.

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   7. Daniel Perry on August 29th, 2005 at 7:03 am

8. Exios and I mentioned this story on this week’s podcast (show 11, not yet posted). Thanks for the extra information on it. I was unfamilar with the term SLAPP suit but have heard about adware and spyware companies using such tactics.

   Based on my web reading on the plantif, I would have to agree that this looks like such a tactic.

   Keep up the great writing.

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   8. Lumpy on August 29th, 2005 at 3:35 am

9. Why not simply say that you will hold them responsible for their comments and if you get sued over their posted comments then you will turn around and sue them. “I’ll send my lawyers after you!”

   Keeping your comments policy short is good but I liked your explanation in this response. What about a link, say, Fact-checking? to a page that explains just how you did in this response?

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   9. Daniel Perry on August 28th, 2005 at 7:00 pm

10. Thanks, Daniel. I appreciate your thoughtful review of my first attempt to clarify my comment policy.

    I understand your discomfort with my attempt to address liability. Here’s the thing though — I do wish to address that issue directly. Regardless of how a lawyer or judge might read it, I want commenters to be aware that they â�� not I â�� are responsible for what they say. For this statement, commenters are the primary target audience.

    Given that, how would you recommend I address this?

    Regarding fact-checking: Actually, I do not fact-check comments posted to my site. Nor do I fix spelling, etc. I don’t have the time. The only exception is if I choose to follow up on something mentioned in a Contentious comment, for the purpose of creating a new posting (whether to Contentious or elsewhere). If I’m going to write about it myself, I’ll do fact-checking. However, that is part of my writing and R&D process, not part of my blogging or comment-handling process. I treat interesting facts mentioned in private e-mail or conversations, or anything heard secondhand, the same way.

    Is that something I should explain as well? Obviously I want to keep the policy statement short and clear.

    Thanks,

    - Amy Gahran
    Editor, CONTENTIOUS

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    10. Amy Gahran on August 28th, 2005 at 6:45 pm

11. Amy:

    I like the fact your comment policy has text the same size as the rest of the page. Like yours, Dave Taylor’s notice is located immediately below the “Send It In” button. However, Dave’s note is of such small text that someone may claim they did not see it. I like the directness of Dave’s notice “… you relinquish any rights of ownership of your question and agree that I can rephrase, reword, modify, correct or repurpose your material without limitation or constraint …” I am sure that Dave elected to omit the word “republish” in concern over the use of the word “publish.” The modern trend of courts is to ignore how you describe your efforts so this is likely not a significant issue.

    I liked your explanation of future use. “As for the rights-related stuff at the beginning, who knows, I may want to publish a book someday and include in it comments posted to this blog. Thatâ��s not an unreasonable goal or expectation for me, since it’s my blog and since I’m providing a forum for my readers by allowing comments. However, if you happen to think that my expectation of rights is unreasonable, then don’t post a comment here. Simple.” It is prudent to explain what your future potential uses of the information may be. I would stress that you are making a special effort to permit commenting (and track-backs) along with the administrative and editorial headaches of moderating those comments so therefore you are entitled to reuse or repurpose those comments.

    As for your heading, rather than say “AGREEMENT” I would probably use “PLEASE POST MY COMMENT” as it will likely mean someone will actually read it. Calling this an agreement will not give it any special standing in a court.

    I am uncomfortable with your language that attempts to deflect responsibility for the comment: “… you acknowledge that you alone are fully responsible for (and bear full legal liability for) the content of this comment — including inaccuracies or potentially libelous statements. You certify that in this comment you have disclosed no proprietary or confidential information. This agreement applies even if you choose to post anonymously or supply false or incomplete identification.” The problem is that courts have historically looked right through that language. In some instances, courts have even rejected “hold harmless” language. A better approach might simply be to state that you will reject any comments which include profane, libelous, abusive, or offensive language. Moreover, you will not knowingly allow comments to be posted or remain posted which contain proprietary or confidential information, spam, off-topic, offensive, uncivil, or otherwise inappropriate posts.

    I am uncomfortable with the admonition that you do not fact-check. Frankly, there are circumstances when you should fact-check. Dave Taylor apparently does so. If you do so and post that you do not then you are being untruthful. That could boomerang on you.

    Daniel Perry

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    11. Daniel Perry on August 28th, 2005 at 6:27 pm