If So Many Content Creators Don't Understand The Law... Perhaps It's The Law That's The Problem?

from the symptom-or-disease? dept

Mon, Jun 9th 2008 1:48pm — Mike Masnick

Over in the UK, a lawyer has penned a column for Silicon.com bemoaning the fact that so many folks who create "user generated content" online are unfamiliar with how things like libel law apply to them. He worries that since so many people don't know the law, they're opening themselves up to tremendous liability. He's almost certainly correct about that. Especially when it comes to libel, many folks who blog think they're immune. But what the column is missing is that the problem might not be one of education -- it might be a problem with the law.

People look at blogging or other user generated content endeavors as being no different than talking to a friend. They view the internet as just another way to communicate, rather than as a mass "publishing" platform. But defamation laws aren't built for such a world where everyday communication is also available to the masses. Defamation laws are really designed for a day when there was a restriction on publication. It was to deal with the situation where a powerful publishing entity could write false things, and the victim had no recourse or way to respond. That's just not the case anymore. These days, just about anyone can respond with ease and make their voices heard. Yes, you still have the occasional situation of "mob justice," where a false statement falsely lives on -- but the traditional expansive view of defamation law makes less and less sense when pretty much anyone has access to their own publishing mechanism to respond.

So rather than complaining about the fact that not enough bloggers are taking the time to learn the intricacies of defamation law -- perhaps we should be wondering why that defamation law is there in the first place?

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Filed Under: blogging, communication, defamation

21 Comments

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Roger Chylla, 9 Jun 2008 @ 2:28pm

Reponse to
I disagree that a change in defamation law is necessary or desirable when it comes to applying the law to "user generated comments" on the web. Proving a case of libel is not easy. The plaintiff not only has to prove that a false statement was made but that malice was intended and that actual damages resulted from the intentionally false statements. Bloggers and others who make public statements that pertain to specific individuals should be accountable to standards of accuracy and fairness. Merely because the victim has an opportunity to respond should not create a license to spread gossip, rumor, and outright falsehoods that demean someone's reputation. The ability of a victim to respond is already taken into account by existing libel law in that a victim has the opportunity to mitigate damages. The fact that the barrier to publish has been so vastly removed by the web makes it all the more important to uphold and maintain standards of fairness and accuracy, not to do away with them.
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Eliot, 9 Jun 2008 @ 2:30pm

Just because it's abused...
I don't know if its so smart to get rid of a law just because the law gets abused. I think it makes sense to re-evaluate laws from time to time, but this does not mean the law is useless.
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Chris, 9 Jun 2008 @ 2:41pm

I disagree with you, Mike
First off, I believe that everyone is responsible for what they say, regardless of the medium. I am no less annoyed by a stupid comment made in person than one made on the intertubes. If you're a fact-challenged writer, you should be careful. Taking Roger's comment into account, it would seem hard for an honest blogger to get nailed with a wrongful libel suit, and barring a spur of such suits, I think the law should remain unchanged.
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TheDock22, 9 Jun 2008 @ 3:21pm

I am with the everyone else
Just because bloggers are uneducated in the libel law does not necessarily mean the law should be done away with. Ignorance to the law is no excuse.
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mike allen, 9 Jun 2008 @ 3:25pm

old/new
having worked in both old and new media i can see mikes point however their is still a place for the libel laws as in the UK we still have mass publishing where it is difficult to get redress the recent libal case of the parents of Maddaline McCann and the daily express is proof of that.
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Hugh Mann, 9 Jun 2008 @ 3:33pm

No, the law doesn't need to change
Blogging is not just communicating to a small group of friends. If you really intended only a small group to read your posts, you'd send them via email to a small, finite list of recipients. When you blog and post your stuff for the world to see, it's like posting your diary on the grocery store's community bulletin board (and often, just as stupid and inane as doing that).

People need to take responsibility for what they say about others. We should not change defamation laws merely to accommodate the degeneration of personal responsibility that is so pervasive today, especially online.

HM
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Tony, 9 Jun 2008 @ 3:36pm

Flashing lights
Based on what I see, most drivers appear to not understand that they are supposed to STOP when a schoolbus is flashing RED lights. I suppose we should repeal that law, too?
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Tommy Jordan, 9 Jun 2008 @ 4:48pm

Really? Change the law because people are stupid/lazy?
I don't usually comment much, but I'm an avid reader. I have to speak on this one though. I am a blogger. I'm also a professional. I can say all kinds of "derogatory" things about companies, people, or organizations under the realm of free speech and no one can stop me.

However, I can step across the line into libel and be held accountable too,as I should be. I've often used my blog to bring a retailer to justice, and recently to bring my web host to task in the same manner, but I'm aware of the consequences of speaking falsely.

Just because some people are too stupid to bother to know laws that govern their actions doesn't mean the laws should fade away. It's very untrue to state that "That's just not the case anymore. These days, just about anyone can respond with ease and make their voices heard." Sure, you can. I can. Some others can too. But not everyone has a blog, web site, or other means from which to do so.

Since lots of people are driving around our country under age with no license while drunk, I suppose we should repeal those too?
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he said - she said, 9 Jun 2008 @ 5:08pm

other side of coin ?
In addition to all the above, there are those who believe anything bad said about them is considered libel. In fact, there has been at least one such incident discussed on techdirt in the past. I believe that in the us, if it is true then it is not libel.
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Steak, 9 Jun 2008 @ 5:10pm

Re: Reponse to
Roger, I think you have a very interesting point, but I don't quite agree with you.

I like your use of "accountable to standards of accuracy and fairness". I think that is a big problem in today's society, where people read something like Wikipedia and assume it's "fact" and that it's true. In reality, it's mostly fact and mostly true, but not quite fully. But look at the amount of content there that IS fact and that IS true. It is definitely a much larger and better source of information than any one entity or publication.

So why is Wikipedia so great? Because it's not ENCUMBERED by so-called standards. People can post just about anything they want, quickly and conveniently, with no burden of approvals or delays until it's posted. And as a result, you get a LOT of content.

So what of this information that's NOT true or accurate? Surely it's there, but it's relatively uncommon and VERY easy to spot.

I first realized this concept of easy to spot when I was buying a rather expensive item on ebay from a "spotty" seller ( credible opinion.

Then it hit me. Evaluating a statement is RECURSIVE. It means that you see content, and you have to evaluate whether or not it's credible. And that's hard for people that don't understand recursion. I think this problem stems from having TOO MUCH accountability in traditional media. That is, there's a lot of red tape to put content up on tv or a newspaper, so viewers/readers can just take it as fact without really validating the author.

Which is terrible. The author is NOT always right. Look at just about any highly technical story published in a non-scientific medium (ie, a newspaper). The author essentially gets a story from a PR firm, and they call up a few industry reps and write down what they say. TERRIBLE. I could probably google for 30 seconds and come up with a hundred examples.

Look at Letterman or Leno, Conan, Bill Maher. They state untrue content on a daily basis, with no lashback. And there is an entire market based around consuming this content that's obviously intended to be consumed as "false". Why should they not be sued by the people they make fun of? Because they "warn" their audience that everything they say is blatantly untrue. Is having this type of content available on television detrimental to society somehow?

Of course not. The only possible harm in publishing false content is when you say "this content is absolutely correct and I verify it as a professional." That's the difference between communication about "who's going out with who" with your friends, and publishing facts. In the former, it's implied that what you say is just your opinion and probably isn't true, and that's why nobody takes it seriously. With something like blogs, you obviously get a few idiots getting upset by taking it too seriously, but there's a limit on the potential harm. If you post something blatantly untrue on your blog, it's just too easy to disprove it, much like a poorly written ebay transaction rating. Where there's no credibility, there's no real potential for harm.

Slander and Libel laws really have mo place in the "blogosphere". Blogs are people chatting, not authors trying to publish official content, or "facts". Or is it? What about the official Google Blog? That is legitimate content, but it's INTENDED to be, and it's STATED as fact, backed by the credibility of Google, being hosted by google.com. So you have two cases, one on a bad ebay user rating, and one of an official Fact-board. Both are present and written on the internet, but neither one can create any harm. So why do we need a law here?
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Rudyard Kipling, 9 Jun 2008 @ 6:03pm

Power without responsibility... the prerogative of the harlot throughout the ages.
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Anonymous Coward, 9 Jun 2008 @ 6:17pm

Something has to be done and fast.

What many here are not taking in to account is that whatever one writes it is illegal, criminal, or libel someplace.

Referencing a historical perspective this entire website and everyone who ever posted to it would have been considered subject to the most severe form of readjustment is Stalin's or Mow's day.

Should a person in the US or UK have been subject to Soviet law?

Well with the internet other like minded governments now have the ability to cruse the world looking for people breaking their law. The only thing left is the means of capture, trial, and punishment.
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Everyone But Me is dumb, 9 Jun 2008 @ 6:19pm

I think the point all you dumb-dumbs who think the law should stay are missing is that we are talking about blogs here. When someone reads a blog they are not going to be thinking to themselves "this information must certainly be correct and is view is not warped forever." They are thinking "this is a blog the person who wrote this is full of probably bologna"

Also- People need to take responsibility for the things they say about people? More like people need to be smart enough to disprove anything some "blogger" could say.
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Mike (profile), 9 Jun 2008 @ 6:42pm

Re: Reponse to
Merely because the victim has an opportunity to respond should not create a license to spread gossip, rumor, and outright falsehoods that demean someone's reputation.

Perhaps I did not make myself clear. If someone does "spread gossip, rumor and outright falsehoods that demean someone's reputation" then as that news comes out, it's THEIR OWN reputation that gets damaged.

In other words, this should become a self-regulating system, as the risk of doing those things prevents people from doing so.
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Dale, 9 Jun 2008 @ 6:59pm

Defimation
We all have lived with the cruel words of others. We should all speak about others with respect or don't speak at all.
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Paul, 9 Jun 2008 @ 7:55pm

This is a great site. Interesting topics. High-quality comments. Thanks to all who contribute, and yes, I realize that this comment is nothing but cheerleading.
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Anonymous Coward, 9 Jun 2008 @ 9:34pm

I agree that defamation laws have a purpose and I wouldn't say that it should be removed; however, I do agree with Mike regarding blogs (to a point).

Many times, bloggers tend to post things without considering the fact that their remarks are being published to the entire world, but this is to be expected. I'm sure all of you remember taking psychology classes where they discuss how individuals speak and act differently in different envirnments. For example, people act completely different at church then while in a gym locker room. The same concept applies online. There is no single "online envirnment" -- it's all mixed up. Some sites are real formal, others are casual, and others are somewhere in the middle.

With that being said, I think defamation law should be revised with that in mind.
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Ron Larson (profile), 9 Jun 2008 @ 10:57pm

The UK doesn't have the US 1st Amendment
I think this attorney is comparing apples to oranges. True, he is correct... in the UK.

However in the US the First Amendment gives citizens far more freedom to speak their minds than in the UK. Trying to prosecute a blogger for slander in the US is almost impossible. In the UK, it is much, much easier.

Other nations have much less freedom of speech than the US, and not only can you be sued for slander, but you can be criminally prosecuted.

Some people have attempted to sue Americans for slander, but in UK courts. They do this because they know they don't have a snowball's chance in hell of succeeding in the US.
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mkvf, 10 Jun 2008 @ 6:03am

Libel origins
Defamation laws are really designed for a day when there was a restriction on publication. It was to deal with the situation where a powerful publishing entity could write false things
Not really. UK libel laws were designed the for the days when our upper classes tended to respond to slurs on their reputation by fighting duels. Having a legal mechanism to resolve these disputes stopped so many of them killing each other. I guess on that basis, you could say maintaining laws on defamation would be a way to reduce the fatal(ly boring) effects of online flamewars. Maybe not though.
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Gene Cavanaugh, 10 Jun 2008 @ 5:18pm

Libel laws
So if a libel is published in a medium with a million readers, the person libeled is protected if they have a blog read by 2 or 3 people? Did I hear you right?
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Mike (profile), 10 Jun 2008 @ 7:52pm

Re: Libel laws
So if a libel is published in a medium with a million readers, the person libeled is protected if they have a blog read by 2 or 3 people? Did I hear you right?

No, you did not. The point was that if the person is libeled, they have the ability to *spread* the news in a response. If a major publication publishes false statements, you can pretty much bet that there will be many people willing to spread that story and embarrass the original source.
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