Villainous Company

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November 22, 2006

We Proactively Denounce McQ!

Fear not, gentle readers. Since the quality of mercy is not strained, the Blog Princess has charitably deigned to relieve your unbearable suspense and tell you, at long last, what we think about Barrett v. Rosenthal (unkindly dubbed the Diapers-for-Bloggers case).

This doesn't seem an unreasonable decision, though we are not of the law-slinging persuasion. The decision exempts not just site owners whose commenters post libelous material, but those who post libelous material without making changes. It seems to us in our infinite wisdom that two distinctions are being made here:

1. A line is being drawn between the site owner and the person who originates the libel; i.e., if you want to sue someone, go to the source. Furthermore, the means of dissemination in this case (online transmission) seems to have been protected explicitly by the state legislature in the interests of not unreasonably burdening the free flow of information. Otherwise, think of the unintended result: people would have to stop and check every single bit of information they passed on with the original source. Ridiculous - the Internet would quickly grind to a halt.

2. A second distinction is being made between the duty of care owed by professional media in the production of a commercial news product (what is the expectation of news readers here? That some reasonable effort is made to check the facts.) vs. the duty of care owed by amateur bloggers on a private site who repost both news articles and informal tips received by email (again, what is the expectation of blog readers here? Do they really have a legitimate expectation that a "blog staff" will be verifying posts? Come on.).

The duty of care standard in common law is generally that of a reasonably competent person of like age and education and if you are a professional, of like experience. To conflate bloggers with the news media is a faulty comparison.

We may have a moral duty, as McQ observes, to be careful about what we say and do, but that is a far cry from being a legally enforceable duty; nor for very valid public policy reasons do I think we want to create a legal duty here:

With freedom comes responsibility and in this case the responsibility rests with bloggers to make a good faith effort to verify the validity, truth, or factual efficacy of anything they wish to post before posting it. It is to our own benefit to do so. If we don't, or there are those among us who don't, it is the blogosphere as a whole which eventually suffers. If we want to be taken seriously, we need to make a serious effort in this regard. And we also need to point out and criticize those who don't.

If we don't self-police the 'sphere, you can bet someone else will try.

Be that as it may, all this talk of policing got us feeling positively tingly. "Fine..." we thought to ourselves. "Let the denunciation begin... with McQ!"

Since we no longer reside in California and our readership appears to be positively infested with insufficiently slothful attorneys, we consider it advisable at this time to direct your attention once more, dear readers, to this blog's Updated Blanket Denunciation Policy:

To all those hereinafter referred to as "the readership":

This Blog proactively denounced, spat upon, deplored, reviled, abhorred, and otherwise distanced itself in the strongest possible terms from all utterances, stances, or actions Known or Unknown (whether committed prior to your reading this, contemporaneously, or at times to be determined in the future) long before whatever may or may not have caused you to read this statement of policy either did, or did not, occur.

If we knew of it at the time, we now choose to ignore it. Such matters are really Beneath Contempt and we think it best not to encourage such uncouth behavior. If it occurred without our knowledge, we tried to exercise moral suasion. But "They" refused to listen and as little "L" libertarians we saw no force or fraud argument for forcibly stepping in to control their behavior.

We only bring it up now because it is the duty of all reich-leaning blogs to constantly monitor everything said by all other reich-leaning bloggers. We are a community, and when even the smallest sparrow falls from grace we must all peck at it mercilessly lest we, too succumb to the fearsome rhetorical powers of Glenn Greenwald.

We are *so* relieved that's over with.

Update: We took a rather light-hearted approach to this issue earlier, but Glenn Reynolds has an interesting essay which essentially bears out what we were saying. Earlier we pointed out that there was a critical distinction between amateur bloggers and the expectation of their readers as to the accuracy of facts presented by them and the professional news media and their ability to do background investigations (and consequently the reliance their reading public would place on the veracity of their reporting). Reynolds notes that proving libel requires proof of reckless disregard for the truth:

...bloggers generally blog about public figures, meaning that a plaintiff would have to show “actual malice” – that is, the publication of defamatory matter with knowledge of its falsity, or with reckless disregard as to whether it is true or false. This is a difficult hurdle for plaintiffs. In addition, blog-culture generally expects that statements of fact will be supported by authority – such as links to other sites – or firsthand reporting, preferably supported by photos, video, or other records. Ordinarily, bloggers’ factual statements will be supported by other sources, which may be in error, but whose mere existence, if they are at all credible, tends to undercut any claim of malice. Firsthand reporting without supporting records does occur, but – particularly given that most blogs lack an editorial chain that can introduce confusion or imprecision between the reporter and the reader – grossly false reporting would only be likely to happen in the context of passing along rumors without any investigation, or outright deception on the part of the blogger. The Blogosphere, like the Internet as a whole, is a lowtrust culture. This tends to encourage, among those who want to be credible, a belt-and-suspenders attitude toward factual assertions that makes claims of recklessness harder to maintain. (Newspapers, on the other hand, used to operating in a higher-trust environment, more commonly require readers to take their word regarding factual assertions.)

Glenn makes another excellent point about the evolution of libel law:

Traditional libel law assumes a one-way megaphone, with media defendants doing the speaking, and libel plaintiffs effectively voiceless except to the extent that they can enlist the power of the state through litigation. This is much less true today. As Jeff Jarvis has noted, this change is leading some people to pronounce libel itself obsolete.

Finally there is the question of perceived authority:

First, I think that the threshold of harm should be fairly high. Since defamation law is intended to remedy actual harm to people’s reputations, courts should take cognizance of the reality that blogs are not generally relied on as sole sources of information: A statement on a blog that a defendant has failed multiple polygraph tests is likely to be seen by most readers as a jumping-off point for further research, while a similar statement in The New York Times is more likely to be regarded as conclusive.

Let me reiterate: I think there is an enormous difference here between a moral and a legal duty, but in the age of teenagers using MySpace to dish about their friends, I really do not think we want to entertain making the standard for online libel suits for private citizens engaging in blogging that of professional journalists, unless of course you want to see your fourteen year old daughter get sued when she disses her teacher or some poor misguided guy who exercises poor judgment ruined over something he passes on, possibly unwittingly, just because he's engaging in what is essentially a hobby.

Let's have a little common sense here.

Posted by Cassandra at November 22, 2006 09:43 AM

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Comments

Posted by: J. Cougar Melancholy at November 22, 2006 12:48 PM

Posted by: Cricket at November 22, 2006 12:57 PM

Posted by: Cassandra at November 22, 2006 01:04 PM

Posted by: Cassandra at November 22, 2006 01:05 PM

Posted by: k8tbar at November 22, 2006 02:11 PM

Posted by: This Blog at November 22, 2006 02:41 PM

Posted by: Cricket at November 22, 2006 05:52 PM

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