Bloggers Have A Duty Of Care

Mr. Jeff Cumberbatch, a lawyer, used his regular Sunday column in the Advocate to touch on the matter of anonymity in the world of blogging (see Advocate, September 20). His article is reproduced below.

Musings: Free anonymous expression

9/20/2009

By Jeff Cumberbatch

I have a confession to make today. It is that I frequently read the popular local ‘blogs, Barbados Underground and Barbados Free Press, and on one or two occasions, I have even gone out on a figurative limb and contributed to them; pseudonymously, of course. And while that admission is clearly not up there with, say, one of having cheated on your taxes or of having indulged in shoplifting, the relative silence in the print and electronic media and among the chattering classes concerning these avenues of public discourse would lead to a view that it is still somewhat infra dig to contribute to them. Much like calling the talk shows, even though these are gradually gaining the imprimatur of serious debate in some respects.

Indeed, there is a degree of similarity between the ‘blogs and the talk shows; in the presence of frequent contributors, in the variety of topics for discussion and in that oh-so-valuable anonymity which permits free expression by a people still fearful of imagined official sanction for a contrarian view on even the most anodyne subject.

In this last regard, the ‘blogs are even more accommodating than the talk shows, for while a voice might be recognised or outed, there is scarcely any prospect of this occurring with the numerous, and sometimes multiple pseudonyms (including, of all things, “ Anonymous”), used by contributors. Only a few brave (or vain) souls have included their photo as an avatar to their names, thus removing any doubt as to the true identity of the contributor. And, as with the radio talk-shows and mid-morning traffic, I continue to marvel, in the midst of a relatively low unemployment rate, how so many individuals manage to find the time; in this case to contribute to so many threads (and on the blogs, so many times) of discussion daily.

As a leader in this newspaper editorialised some months ago, the freedom of expression on the blogs, though subject, theoretically, to the same constraints as other written or spoken exercises of this freedom, including respect for the reputations and privacy of other persons, nevertheless enjoys all the privileges which come with anonymous publication. An individual who considers that she has been defamed by an anonymous statement on a ‘blog and who contemplates legal redress therefor from that contributor, must clear, in addition to those of the traditional legal requirements, the further hurdle of identifying the contributor by discovery from the blogmaster or an Internet Service Provider.

Some recent cases in the US have treated this issue, with contrasting results and it seems clear that the issue is far from settled. In one case in the State of Maryland in February, the Court of Appeals held that the claimant, in order to succeed, must first establish facts sufficient to make out a “prima facie” or presumptive case as to each of the elements of defamation. Second, the court has to balance the blogger’s constitutional right to freedom of anonymous expression against the claimant’s right to protection of her reputation. This latter consideration would give primacy to public interest issues and less value to the scurrilous, although it is not always easy to distinguish these. A similar holding has been made in New Jersey.

And in a New York case decided last month, the Supreme Court of New York held that a model who had been the object of anonymous calumny on a ‘blog, was entitled to discover from Google, Inc., owners of the website which hosted the offending blog in question, the identity of the blogger who had written about her. In this case, the court was satisfied with the claimant establishing the arguably lower standard that “a cause of action exists”, whether likely to be successful or not.

Although the law in the various states of the US differs somewhat from the local law on defamation, it is important that we consider these matters. As anyone familiar with the popular local blogs is aware, there are no holds barred when it comes to prurient discussion of personalities which, unfortunately, is oftimes substituted for informed discussion on the topic at issue. It may not be long before some individual determines that a defamation action is in order for some anonymous disparaging remark.

First, it is no defence that a different and lower standard of what constitutes defamation exists on the blogs. In the New York case referred to above, the Court firmly rejected the proposition of the blogger that statements made in this medium cannot reasonably be considered as factual assertions since “Internet ‘blogs serve as a modern day forum for conveying personal opinions, including invective and ranting…”. As the learned judge saw it, “[i]n that the Internet provides a virtually unlimited, inexpensive and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored…” In her view, ‘those who suffer damages (sc. damage) as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights…”

I’ll continue this discussion with an examination of the responsibility of blog hosts for defamatory material, the elements of defamation, and other issues; including the view that freedom of expression may be a cultural, even more than a legal, phenomenon.
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It's been a funny day as his 'confessions' have elicited a lot of commentary on the major local blogs. On the one hand, he has let it be known that he comments on blogs, but that's no sin in the same way that playing computer games is not. Some who engage his services may want to know when he does this, but the same question could be raised about any others who may be taking work time to do what is perhaps a social activity.

I too have tried to touch on some of these issues that are lying in wait for bloggers because I feel that many have stumbled into an area and are only now realising what may be involved. My genuine hope is that those who have solely good intentions do not find that they have dug a big hole for themselves. But, it's a sort of wake up call and housecleaning and reconsideration of ways of doing things can often be useful.

I got caught out by a copyright issue and dealt with it quickly and to the satisfaction of the owner of the copyright. I used the IMF logo in a post last week and some kind ex-colleagues pointed out to me that it was illegal. I changed the image and another ex-colleague is checking that what I now have on the blog is acceptable. I hope that I will not be sued but I need to take care.

Some refuse to accept any constraints. I prefer to be a bit more cautious. I look at it a bit like the seat belt laws. I see many adults driving with their children bouncing around in the car without a belt on: over the weekend I counted at least four instances where the child seemed to be under ten and was in the front seat. So long as no accident occurs we can all say "Go long". But when there's a crash and the wailing and crying starts, then too will come the questions about what precautions were taken. In the UK and US, this kind of duty of care if ignored can be costly. Insurance companies will be only too happy to deny a claim where they can show contributory negligence or even recklessness. Likewise for those of us who are bloggers. Many of us do not know the laws that cover what we do, but judicial process gives no marks for ignorance.

I must admit that my attenae were twitching from the time I read the Advocate's editorial this March, which I reproduce below.

The Advocate had earlier in the year set out its policy (see Advocate, March 19), I reproduce it here in case it ever disappears:

Freedom of the E-Press

3/19/2009

Most, if not all, of the world’s newspapers currently produce an online edition. This may differ, to varying extents, from the so-called “dead tree” or paper publication. Thus, for instance, the online edition of the Times of London is but a sampling of that day’s offerings in the print version. On the other hand, the entire Barbados Advocate daily publication, classified advertisements and all, is available online. This, we are inclined to believe, is unique. Still, unlike some other online publications, that of the Barbados Advocate does not archive its articles for any period thereafter.

Whatever the nature of its online presence however, each press is undeniably subject to the same restrictions on its freedom of expression, especially with regard to defamation, as it is with its non-virtual edition. This state of affairs is to be contrasted with that relating to the blogs which,
because of their ostensible anonymity, a quality not shared by the media houses, enjoy some degree of immunity and impunity in this context.

As a recent decision of the European Court of Human Rights makes clear, the law of defamation applies to online publications of a newspaper – even to the extent of holding the publisher liable for the continued publication in archives on its internet site of an article ruled defamatory.

In September and October 1999, the Times published two articles reporting on a money laundering scheme carried out by an individual, one G. L., whose name was set out in full. Both articles were uploaded on to the Times website on the same day as that on which they were published in the paper. In December of that year, G. L. sued the Times for libel. While this action remained unheard, the articles remained on the Times website, accessible to users as part of its archive of past issues. In December of the next year, G.L. brought a second action for libel in relation to the continuing internet publication of the articles. Only then did the newspaper add a notice to the articles to the effect that they were subject to libel litigation and were not to be reproduced or relied on without reference to the Times legal department.

The Times argued that only the first publication of an article posted on the Internet, and not any subsequent downloads by readers, gives rise to a cause of action in defamation. Hence, the December 2000 action had been commenced after one year, the limitation period for libel, had expired. This argument was unsuccessful in all the English courts. Thus the matter was appealed to the European Court on the basis that the application of the common-law rule that each publication of a defamatory statement gives rise to a separate cause of action, with the consequence that there was a fresh claim every time the defamatory material was accessed online, meant that the newspaper was subject to “ceaseless liability” and this could have a chilling effect on its readiness to provide Internet archives and thus limit its freedom of expression guaranteed by the European Convention on Human Rights.

The Court, while it recognised the importance of Internet archives for educational purposes, did not consider that the requirement to publish an
appropriate qualification to the Internet version of the articles, without removing them, was a disproportionate interference with the newspaper’s right to freedom of expression.

It can be seen therefore that freedom of expression of the e-press is indeed no greater for the known publisher than it is in the print edition. And for those newspapers which keep Internet archives, the extent of possible liability for defamation is even wider, unless a warning notice is published.
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The issues are serious and I am not so confident of my own understanding as to glibly think that I can go ahead regardless. I know that by being open with my identity I run a different risk and I must take the right care to not put myself in the soup and get totally burned.