Here’s a sketchy but interesting report on a large defamation judgment handed down against a South Carolina blogger. According to the report, a referee appointed by a South Carolina judge set damages for injury to reputation at $800,000 and punitive damages of $1 million for a blogger’s defamatory statements about a South Carolina ad agency head.
There may be much hand wringing about this report, so it’s worth discussion.
From an early age, we all learn about the value of a person’s reputation. It’s an ancient value protected in many realms. The ancients revered it. Religious texts talk about it. It’s protected by various old court cases in many legal systems. State constitutions commonly protect reputation interests along with property rights.
Many of these old sources remind us of what we know. Damage to reputation made by false statement is difficult if not impossible to fix. Or as better put in a statement incorrectly attributed to Mark Twain, “A lie can travel half way around the world while the truth is still putting on its shoes.”
For that reason, most western legal systems recognize a claim for damages arising out of false statements made the damage reputations. The modern name given is defamation.
Defamation claims generally require proof that a statement was made, that it was false, and that it caused injury to a person’s reputation. There are a bunch of other legal rules that come into play in modern defamation claims, which is simply a way of acknowledging that the summary here isn’t precise.
Whether you make false and defamatory statements by whisper, in a handbill posted on a wall, in the newspaper, on your blog, via Twitter, on the scoreboard at the ballpark, or to all of your Facebook friends, the effect is the same. The lie has traveled half way around the world….
I have some questions about this case. I don’t practice law in South Carolina, so my questions are more about the rules that apply. In South Carolina, the referee and judge set damages. Here in Oregon, damages would be up to a jury.
There is also a First Amendment question about whether it’s right to award punitive damages in a case like this. Punitive damages punish an actor for bad conduct. They are added to damages assessed to pay for the harms and losses suffered by an injured person. There’s an interesting tension in First Amendment cases. Where does the need to protect the right of free speech end? At what point does the constitution allow punishment for speech?
Not enough information here to assess, but it’s an interesting case. The takeaway for those of us who blog is that defamation rules apply. But there’s really little different here from earlier days, other than the speed and distance which a lie can travel on the internet.
This report from an Arkansas trial closes the book on a recent clash between new media and jury trials. The trial judge ruled that a twitter users tweets were in bad taste but did not amount to misconduct. He declined to grant a new trial to Stoam Holdings, a building materials company.
Twitter, Facebook and Google present enormous challenges to trial lawyers. The problem arises from the need to base case decisions on the evidence in the courtroom. In the early years of my career, judges simply instruced jurors not to drive by accident scenes, make independent inquires or perform out-of-court research. I suppose I could be naive, but I think that jurors generally complied.
I imagine that jurors simply don’t or won’t anymore. They can Google and facebook witnesses. They can send tweets. In short, they can and will refuse to follow the instructions that the only evidence worthy of consideration is the evidence presented in the courtroom.
While I imagine that many jurors would snort at the notion, there are good and important reasons for the rules. Lots of evidence is out of bounds because it doesn’t meet the standards of admissibility. But there’s a more subtle reason for the rule. When evidence is presented in the court room, both sides have the ability to challenge its validity and interpretation. When it’s located as a result of a juror’s out-of-court search, it may be accepted as valid without the ability to truly challenge the evidence.
Take the simple example of a Web MD search. Here is the link to a Web MD article on neck strains. It’s easy to locate, and it provides all sorts of good information about the problem of neck injuries that typically occur in motor vehicle collisions.
But that Web MD information tells you nothing about Ms. Jones the hypothetical person whose claim may be tried next week. Relying on that information without explanation from Ms. Jones treating doctor might lead to misinterpretation of the information or misapplication of the general concepts.
Short version is that the juror who has gone off on a lark has Googled his or her way to a potentially misleading result. That’s the most important reason for the rule.
The twitter case linked at the beginning is just a start. I imagine we’ll see radical changes to the way we try cases because of the access to technology.
Good article here on a growing practice. Trial lawyers use the internet to find out background on potential witnesses, potential parties, and even potential jurors. This includes social networking sites to find out what the real story is on someone involved in a case. The article raises questions about whether it’s ethical to dig into potential jurors’ internet postings. Assuming there’s no hacking involved, I don’t see any problem finding out as much as I can about a potential witness or juror.
I can learn a lot more about a person from reading her MySpace page than I can from the stifling and artificial question and answer session of jury selection that goes on in the courtroom.
The interesting part from the perspective of those of us in the trenches is the time clash. Depending on the local rules, trial lawyers frequently don’t get names of prospective jurors until the beginning of jury selection. And often those are called out orally in open court, and you’re scrambling to record the name. Then, you might little or no time to question prospective jurors before deciding on whether to challenge or strike a potential juror. It’s that short window of time that is the most important to look for background.
Imagine that there are maybe 30-50 potential jurors being interviewed with decisions to be made in a matter of hours, sometimes less. The bottom line is that it’s very hard to do effective background searches under these conditions. Even so, we all try because a toxic juror who does not disclose bias in jury selection can unfairly destroy a case.
There is nothing surprising about Friday’s ruling by the U.S. Court of Appeals ruling that Myspace is immune from a lawsuit brought by a parent of a sexually abused child. In Doe v. Myspace, Inc., the Fifth Circuit ruled that the Communications Deceny Act, 47 USC Sec 230 (”CDA”) bars claims against providers like Myspace for damages that arise out of publication by providers of content supplied to the provider. For law geeks keeping score at home, the Court relied on CDA Sec 230(e)(3).
This is the whole preemption thing again. At least this is true preemption that was clearly intended by Congress, rather than a political agenda being pushed by an out-of-control administration.
But that’s not as interesting to me as how this ruling shines a light on censorship by web 2.0 providers like Facebook and Myspace. The CDA protects publishers of content. So why would Facebook remove posts that were critical of Career Education Corp? Facebook couldn’t be required to answer to claims under the CDA. So what gives?
I can’t see any other explanation other than web 2.0 providers play a kind of 3-card Monte with censorship rules. When faced with a liability lawsuit, they rightfully raise the CDA as a complete defense. Fine. That’s how Congress wrote the law. While I have trouble with the result in Doe, it’s about personal beliefs and nothing relating to the correct interpretation of the CDA. But when other interests demand the removal of content–like unflattering posts–the provider should stick to the same position.
To be sure, I’m not a big fan of the CDA’s grant of wide immunity. In pre-web days, publishers like newspapers could be held to answer for harm caused by defamation if they recklessly published untrue information. Personally, I would prefer that model so that web providers take some responsibility for content. But maybe I’m misguided on this particular issue.
Interestingly, there may come a time down the road where web 2.0 providers’ inconsistent actions create a different set of problems. I can foresee that lawyers representing future Doe families will have new and interesting arguments to get around the CDA if Facebook censors for its friends but doesn’t take similar steps for trolling sexual predators. I realize this last thought might be a little obtuse. Apologies. Untangling it would only lead to a long and dense post that would surely bore you to tears. You can thank me for being a self-censoring law geek….
In an interesting blog on concurringopinion.com, Daniel Solove explores the emerging problem of Facebook censorship. http://www.concurringopinions.com/archives/2008/03/facebook_banish.html
I am taken by both the post and the responses. Mr. Solove relates the experience of David Lat, who was temporarily banished from Facebook.
In investigating a potential consumer class action against Career Education Corp. (CEC) and its subsidiary WCI, Ltd., I found an active Facebook group called IADT Truth Advocates. The group was run by one Charles Hobbs, a gentleman from Tampa who was concerned about widespread complaints by students at various CEC schools throughout North America.
In this brave new Web 2.0 world, I used the IADT page to try to find out more about Western Culinary Institute, a Portland, Or. CEC culinary school that has been the subject of some concern. As with any information source, it was helpful in locating witnesses as we investigated a case on behalf of Western Culinary students.
In the course of those postings in late Feb ‘08, I reviewed postings from Mr. Hobbs indicating that Facebook and CEC were trying to shut down the site and asking for assistance. While I was drawing inferences, it sounded like CEC was threating litigation. There were the usual impassioned responses about the First Amendment. (No go for obvious reasons, as comments on the Solove blog correctly note.)
I recently went back to post an update on the IADT Truth Advocates wall, only to learn that Mr. Hobbs has been removed, and many posts have been deleted. There was a link to a chilling post at the top of the wall from a woman connected with CEC about why Mr. Hobbs was removed and how CEC was trying to answer complaints. It looked as if my prior posts had been purged.
I understand that Facebook and other Web 2.0 sites are not subject to 1st amendment limitations on their own operations because they are private sites. Even so, one has to mourn the fact that such a powerful forum with so much potential is run with a heavy hand. But the bigger problem is whether a private third party should be able to get its way.
I don’t know the facts, but it’s easy to draw inferences–perhaps incorrectly– that CEC pressured Facebook, and Facebook pulled the plug. Assuming that CEC pressured Facebook to purge Hobbs and postings CEC disliked, it would seem that the Facebook terms and conditions might need to be expanded to include that, “Money talks,” and we will flush you if someone of greater import or economic power demands it, regardless of the truth of your speech and your compliance with all our other terms and conditions.
David F. Sugerman
Wow, here’s something cool about how the internet is providing consumers with new tools to fight corporate abuses.
I stumbled on a Facebook group devoted to consumers’ concerns over CEC, the owner of many private trade schools, including Portland’s Western Culinary Institute. The man behind the group is Charles Hobbs. I’m in awe of his energy and organizing ability. While I don’t know his story directly, I’m guessing that he got burned by one of the CEC programs and decided to take action.
Here’s his IADT Truth Advocates facebook page: http://www.facebook.com/group.php?gid=5604847490
And if that’s not enough, the page reports that CBS is coming out with a news piece on CEC and some of the claims made by consumers.
It’s refreshing to see Mr. Hobbs and others using the internet in a constructive way to provide information to consumers. The networking process provides a great tool in fighting those businesses that seem committed to doing things the wrong way. Nothing like good old fashioned information to help consumers make smart choices.
Update: Facebook purged this site, as reported in a later entry. It appears that Mr. Hobbs has been banned from Facebook, in what sounds like a chilling case of corporate-driven web censorship. See the later entry on this important topic: www.pspc.com/2008/03/did-facebook-bow-to-pressure-from-career-education-corp
David F. Sugerman