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.

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.

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.

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.

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.

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.

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?

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