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Libel On Blogs

By RHarrison | 28 November 2007 | Blogs | 6 Comments

Claims of “Libel” pop up periodically on this and other sites. The original BVBL was driven underground as a result of a Libel lawsuit. Yet there is very little actual law defining what is and is not libelous language on a blog. Glen Reynolds, author of Instapundit.com, has written a brief article for the Washington Law Review describing the current state of the law and suggesting how courts ought to view claims of libel based on blog entries.

The article is not definitive, but it is scholarly and comprehensive. Page 3 has a brief discussion of libel claims involving public officials. I recommend that any of you who are interested in this issue download a copy, which is free.

However, I think Mr. Reynolds is missing an important point. Claims of libel on the internet are dangerous, not because they will be successful in court, but because they are scary. Most bloggers are individuals with some time to spare and something interesting to say (this second point is optional). Few have the resources to fight even a frivolous lawsuit. Fewer still want to. Threats of, or actual, libel cases have been used to frighten bloggers into silence, not because they are likely to succeed legally, but because it is too expensive to respond to them in defense of what most people see as a hobby.

I think Mr. Reynolds’ article is too optimistic about the chances that a libel suit against a blogger will succeed. If the goal is silence, rather than money, libel claims against bloggers work far too often.



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6 Comments

  1. The Richmond Democrat said on 28 Nov 2007 at 3:59 pm:
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    I don’t have time to read the article right now at work, but a some quick comments. These comments aren’t directed at you Greg, but at the blogosphere as a whole.

    1) The legal definition of defamation is pretty well established. Libel is the written version of defamation (slander being the verbal). You seem to want to add some kind of qualifier to the definition: “on blogs,” as if the fact that if an otherwise defamatory statement was published on a blog it might somehow not be defamatory by virtue of the fact that it was on a blog, and not in The Washington Post, for instance. Defamation is defamation, the fact that it occurs on a blog will not excuse it.

    2) People who blog should take the time to read about defamation, what it is, and how to avoid it. Remember, defamation isn’t about publishing something true that’s unflattering, it’s about publishing something false that damages someone. Why would you want to publish something false about someone? Learn where the line is and you won’t have to be scared, you can just be responsible instead.

    3) Let’s face it, in many cases defamation suits arising from behavior online are not pursued because it is difficult to ascertain the identity of the person responsible and in any case the person responsible probably does not have a significant amount of money to pay damages (i.e. “deep pockets”). And while we’re on the subject, there has to be a showing of “actual damages” for the monetary award to be especially large. Who wants to spend thousands of dollars in legal fees just to have a judge say: “Well, you’re right, but this didn’t really harm you, so here’s an award of $1 for your trouble”?

    Sure, you can walk around and say that a court of law found that so-and-so libeled you, but you’re out of pocket what it cost in attorney and court fees. So maybe one day we’ll see a case where someone in Virginia publishes something false about someone on their blog and it costs the victim their job or their marriage or some other significant damage. If that happens, and if the perpetrator can be identified and if they have the money to pay a judgment (if, if, if), then maybe we’ll see a civil suit for blog libel. Otherwise I doubt it.

    4) Quite apart from the civil law remedies offered by the law of defamation, there could be criminal repercussions for certain kinds of online behavior. If you feel the sudden urge to attack someone over and over again anonymously, I highly suggest you fight that urge, because following through on it could lead to charges of cyber-stalking and a criminal prosecutor won’t care whether or not you have deep pockets–just whether he or she can prove in a court of law that a law was broken. Don’t enagage in cyber-stalking. If you don’t know what that means, Google it.

    Have a great day and I look forward to seeing everyone’s reaction to the Republican YouTube debate tonight.

  2. Loudoun Insider said on 28 Nov 2007 at 5:35 pm:
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    Excellent article, thanks for pointing us to it. I’m going through my own libel threat experience, having just been informed that I will be sued for not treating someone with “fairness and respect”. Unbelieveable.

  3. One Voice said on 28 Nov 2007 at 6:17 pm:
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    So does this mean no facts are necessary to make accusations?

  4. RHarrison said on 28 Nov 2007 at 8:44 pm:
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    Democrat,

    Neither I nor the article suggested that somehow defamation is different on blogs than the rest of the world. However, it is an open question as to how libel and defamation laws would work on-line. For example, Reynolds makes a strong legal argument that people who write blogs cannot be sued for things written in their comments by other people. He also suggests that correcting a false statement on-line ought to be sufficient to prove there was no malice in the original post.

    It isn’t a matter of a new legal definition, but rather recognition that the law needs to be applied to the new medium.

  5. 10 feet tall and Bulletproof said on 28 Nov 2007 at 11:45 pm:
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    There is another way to actually keep a clean nose. Tell the truth. The verified truth.

  6. Loudoun Insider said on 28 Nov 2007 at 11:46 pm:
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    I also enjoyed his thoughts on the ability of the aggrieved to respond immediately in blog comments. Some legal scholars believe this largely negates any potential liability. Anyone who doesn’t agree with the blogger has a right to post their thoughts on that particular item (unless barred or deleted later) and they also have an equal opportunity to start their own blog if they are unhappy with the way another blog is run. Remedies of a similar nature are available to the aggrieved almost immediately at no charge.

    The blogosphere has definitely changed the concept of media (the author references another writer’s reference to we-dia). The days of a couple newspapers with limited opportunity for feedback and correction are long gone.

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