Tuesday, December 6, 2011

A Challenge For an Open Internet

Keeping internet speech open and free is certainly a desirable goal.  But how do we, as a society, deal with those who act irresponsibly and cause significant harm to others.  School systems are struggling mightily with the issues of cyber bullying. Teachers and school administrators have been targets of fake Facebook listings.  Thus far, legitimate websites such as Facebook have been cooperative in removing content that is obviously false and harmful, thereby attempting to reduce the magnitude of harm suffered by victims.  But how should the system deal with website hosters who not only allow false and harmful postings, but actually encourage the practice?

Consider the case of Sarah Jones.

Sarah Jones is a high school English teacher.  She also happens to be a Cincinati Bengals cheerleader. Postings at a website called TheDirty.com linked her to sexual affairs with Bengals players, alleged that she suffered from STDs and, most alarmingly, alleged that she had sex in her classroom at school.  Needless to say, the statements, all false, caused Ms. Jones significant harm.  What is most disturbing, however, is that the website editor unapologetically refused to remove the false postings when notified. Considering himself nothing more than a "librarian" for posts, the website editor celebrates his site as "reality internet." His disturbing position and attitude is on full display in this interview on the Anderson Cooper show. As a passive host for posts, the editor claims neither the legal repsonsibility for the content of posts nor the obligation to remove patently false material.

More than forty-five years ago the Supreme Court had to deal with a similar issue in Sullivan v. NY Times. The Times argued that an investigative press could be fostered only by immunity from libel cliams. Recognizing that such a rule would go too far in exposing harm to private reputation interests, the court struck a balance between the two interests. A public official (later extended to public figures) suing for libel had to prove actual malice. That is, in addition to proving the publication of a false statement holding one up to hate, ridicule or contempt, the plaintiff had the additional burden of proving that the publication was made knowing the statemnt to be false or with reckless disregard for its truth. from the standpoint of the newspaper or press outlet, there was a qualified privilege to publish the results of investigations even if they later proved to be false, as long as there was no intent to publish falsely and reasonable journalistic standards were followed.

But that ruling came in an era where the likelihood of great harm from a false statement was limited to statements that were published by the mass media press. Therefore, reasonable journalistic standards served to self-police the instances of great harm. The Sullivan court could not have envisioned a world where any person, public figure or private individual, could be made the target of a worldwide smear comapign by any imbecile, miscreant or person of fragile mental status with the ability to access a computer. Websites such as TheDirty.com unabashedly expose every person on the planet as a potential victim.

Rapid technological advancement presents particular challenges for a Common Law system that advances glacially, on a case by case basis.  But the system is out of balance. The internet needs to remain open and free to truthful and valuable speech, but better mecahnisms are needed to discourage false and harmful speech by punishing both posters and unapologetic hosters. Hosters must be afforded a carefully considered qualified privilige that is equally sensitive to the protection of reputational interests.

Although Sarah Jones has secured an $11M judgment  ($1M in compenatory damages and $10M in punitive damages) it was a default judgment rendered when the defendant failed to appear. And due to an "unfortunate typo," the original lawsuit was brought against "thedirt.com," rather than "thedirty.com." Therefore, there is still an opportunity to fashion an appropriate legal principle.

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