West Virginia Looks To Criminalize Online Harassment
from the don't-be-a-jerk dept
There's been an increasing effort among some to make being a jerk online some sort of criminal activity, even though that almost certainly violates the First Amendment. The latest is an effort in West Virginia to create a new misdemeanor for posting false information about someone online, which could result in fines and jailtime. Now, as you probably already know, we already have laws against defamation -- though that's a civil issue, where the defamed party can take the defamer to court. In this case, the law would do two things: (1) make it a criminal issue, getting the government involved in determining who to prosecute and (2) lower the standard for what breaks the law. Specifically, defamation has required not just the spreading of false information, but that it be done with malicious intent, if you wanted any kind of punitive damages. Yet, this law in West Virginia has no such requirement, meaning that simply spreading false information, even if not for malicious intent, could get you brought up on criminal charges. That seems to go against the First Amendment, but since when has that ever stopped lawmakers from pushing bills?
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Filed Under: defamation, first amendment, harassment, malice, west virginia
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Come and get me coppers
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cut it out with these incorrect statements of law
even the ars article links to the relevant case law that debunks half of your editorial commenting: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=418&page=323
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Re: cut it out with these incorrect statements of law
In this case, the law would do two things: (1) make it a criminal issue, getting the government involved in determining who to prosecute and (2) lower the standard for what breaks the law. Specifically, defamation has required not just the spreading of false information, but that it be done with malicious intent, if you wanted any kind of punitive damages. Yet, this law in West Virginia has no such requirement, meaning that simply spreading false information, even if not for malicious intent, could get you brought up on criminal charges.
Even after reading your comment, his assertions that this changes the matter from civil liability to criminal, and that the standard is lowered still stands. But Mike specifically notes that if you wanted punitive damages, you had to prove that the statement was knowingly false. From the article you linked:
The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury.
Nice try, now shut up.
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And how long until we see...
(c) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.
(* emphasis added)
Can we say Marshall, Texas everyone???
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institutional liability
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It is illegal to be wrong
LOOK OUT FACEBOOK USER ... that mistaken tag on that one photo will get you fined $1,000 and thrown in jail!!!!
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Re: Re: cut it out with these incorrect statements of law
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Re: Re: Re: cut it out with these incorrect statements of law
If you're concerned about the remedies/consequences of defamation, Mike's statement is also misleading. Damages in the civil defamation cases are going to be whatever the jury deems reasonable (since actual damages are virtually impossible to put a number on). Even then, there is a lot of recent case law (even in the Supreme Court) that limits tort punitives to a 1:1 ratio with compensatory damages. Thus, punitive damages aren't so much of an issue to some defendants. When you look at legislative histories, you'll see that when civil violations become criminal violations, the problem was that the civil violation was insufficient to curb the problem. This is just a natural evolution of law...
With people thinking the internet is 100% anonymous, they'll say whatever they want. It's one thing to out a person or company for nefarious activities (like the cash4gold defamation C&Ds), but it's an entirely different thing for people to just make shit up. Jim Kramer in Jon Stewart's interview correctly claimed that short sellers often make shit up because it's so easy to propagate sensational commentary about fanboy companies like Apple.
This is amplified by the echo chamber of the blogosphere which just repeat things, regardless of their truth (like last week with the DMCA notifications and your local ISP, or a few months ago with NZ's section 92a disconnection policy). The problem with blogging is that when you repeat something without any fact checking whatsoever, and that statement turns out to be false, you probably just commit civil defamation, regardless of whether you knew the statement was false or not. You're only off the hook if the subject of your statement is a public figure.
In sum, Mike is wrong about "lowering" the standard, and he's misleading about the punitives in defamation.
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Might not be that bad
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