The Noisy Channel

 

Public Expression, Liability, and Anonymity

August 8th, 2009 · 8 Comments · General

A colleague just sent me a link to a story about a Twitter user being sued for a tweet. At least he’s not being sued in London.

I’m strongly if not absolutely in favor of freedom of expression, so it’s hard not to find such cases depressing. Nonetheless, I don’t think  the legal landscape hasn’t changed.

Rather, what has changed (or accelerated) is that:

  • It is easier for people to express themselves publicly–and hence far more people are doing it.
  • The detached nature of online communication releases people’s inhibitions. Moreover, people not only don’t self-censor, but in some cases are deliberately provocative to attract attention.
  • The speed and efficiency of distribution (especially through search / alerts) means that the people most likely to be or feel damaged by an act of public expression are far more likely to discover that act.

So it’s not surprising that users are being sued for what they say online–it’s an expected consequence of the democratization of publishing, especially in the litigious English-speaking countries on both sides of the pond.

I’d personally like to see it a higher bar for someone to initiate a defamation lawsuit–let alone win it–but I’m not holding my breath. Instead, I expect that we’ll see more anonymous expression by people who don’t feel the authenticity of disclosure justified the risk of retaliation. Oh well.

8 responses so far ↓

  • 1 dinesh vadhia // Aug 9, 2009 at 3:14 am

    An interesting area that is going to become important and more visible. A US blogger making disparaging comments online about another (known/named) person living in another country is entering dangerous waters and vice versa as each country have their own laws. When in Rome do what the Romans do and all that good stuff.

    There are so many legal issues in cases like this that you don’t know where to start. For example, a blogger is incorporated and banks in the US only. They monetize with ads from AdSense worldwide because they want a global audience. Should a US blogger be able to claim immunity (ie. hide behind US jurisdication) when a person in another country files suit?

    A great time to be a lawyer in this area!

    I agree with you that “Instead, I expect that we’ll see more anonymous expression by people who don’t feel the authenticity of disclosure justified the risk of retaliation.”

  • 2 Daniel Tunkelang // Aug 9, 2009 at 10:33 am

    Since online publication clearly spans most geopolitical boundaries, we should expect that every country will have its own ideas about jurisdiction. It really comes down to norms of international relations.

    For example, a number of countries criminalize Holocaust denial. But I doubt that the United States, with a relatively strong support of freedom of expression, would ever extradite an American to a country for prosecution under such laws. In contrast there is a lot more agreement about other edge cases of public expression, e.g., child pornography and market manipulation. But defamation is certainly an area where laws vary widely.

    I suspect you’re right about the confusion being a windfall for the lawyers. It will be interesting to see how international norms evolve.

  • 3 Jason Adams // Aug 11, 2009 at 11:02 am

    I wonder if people will start obfuscating company names like H0r. 1z0n Re@1ty when they complain about them. I guess it depends how robust most text mining applications are at dealing with spam-like or l33t speak names..

  • 4 Daniel Tunkelang // Aug 11, 2009 at 1:31 pm

    I’m curious about liability too–what is the burden of proof to show that I’m actually talking about a particular person or company if I sufficiently mangle the name?

    But if the point of talking about a person or company is to call attention to an opinion, then breaking the text mining applications is kinda self-defeating.

  • 5 Daniel Lemire // Aug 14, 2009 at 4:31 pm

    Whether the fellow is right nor not about this company, their legal tactic is clearly obscene.

    Chances that very few people saw this tweet before the lawsuit. If anything, they have drawn attention to themselves and questions are being asked…

    Minimally, these people are totally incompetent at PR. They just “don’t get it”.

    And quite possibly, they are rufians. (I’ll be waiting for the lawsuit.)

  • 6 Daniel Tunkelang // Aug 14, 2009 at 4:40 pm

    You live dangerously! Or are you simply not worried that Canada will extradite you?

    Of course, I agree that it’s horrendous PR to call attention to people who offer plausible criticism by suing them. The more interesting question–which was actually the question that interested my colleague–is whether potential employer liability will result in a clampdown on employees’ use of social media.

  • 7 Charlie Berg // Sep 1, 2009 at 1:22 pm

    Not sure I understand Cohen’s case against Google – she would be considered “in the public eye”, and hence defamation suits are much harder for her to win.

    I think the Horizon vs. Bonnen case is more interesting…and more dangerous. On the surface, I think that Horizon actually may have a case – at least the requirements for defamation are met. I wonder if a statement of facts by Bonnen (i.e. “I had identifiable mold, I contacted Horizon, there was no action to remedy on their part) would have the same intended punch, but as a provable statement set, be defensible? I’m not a lawyer, nor play one on TV, so I’d be curious to hear from legal eagles.
    Also, how come Horizon hasn’t sued the wireless company, any Level 0 network providers, Microsoft (for IE), and any other product in the chain that gets the Tweet from author to viewer? I would venture that they don’t want to offend the big boys, who would weigh in with more kilograms of lawyers than Horizon, and set the precedent the wrong way….

  • 8 Daniel Tunkelang // Sep 1, 2009 at 1:56 pm

    I agree with you about Cohen’s case against Google (read about it here if you haven’t been following the “skank blogger” case)–“breaching its fiduciary duty to protect her expectation of anonymity” doesn’t strike me as a compelling case. We’ll see what the courts think.

    And I also agree that the Horizon vs. Bonnen case is more interesting. Horizon may well have a case. Personally, I’d like to see the bar for actionable defamation set higher than that; but the law may well be on Horizon’s side in this case. But the argument there concerns the legal standard for defamation–encouraging online anonymity is a sloppy workaround with other negative consequences.

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