The following is being issued by Judge Edward Fadeley, Retired Associate Justice of the Oregon Supreme Court:
Today’s blogosphere is a veritable Wild West of verbal ambushes and shootouts, with very little fear of legal recourse to keep character assassination, defamation and dirty business tricks in check.
It’s an area of the law that desperately needs serious attention. Self-proclaimed “experts” and “journalists” abound on the Internet. “Web logs are the prized platform of an online lynch mob spouting liberty, but spewing lies, libel and invective,” wrote Daniel Lyons in Forbes. Some 50 percent to 60 percent of blog attacks are now sponsored by business rivals, said a lawyer quoted in the story.
Ten years ago Congress passed a law requiring blog operators to protect the public by self-regulation. But many flout that responsibility and willingly post inaccurate messages that damage others.
That law has stifled the courts’ rights to recover damages for unauthorized, negligent or dishonest use of Internet sites, including blogs. The guarantee that a person injured may use the courts to recover has existed in our culture since the century of the Magna Carta, more than 700 years ago.
But free-speech guarantees haven’t previously protected libel, defamation or spoken-but-fraudulent activity. As the strong free-speech in the Oregon Constitution also provides, for example: “…but every person shall be responsible for the abuse of this right.”
These legal holes exist while the cyber Wild West keeps getting bigger. There were about 10,000 Web sites in 1994, according to Massachusetts Institute of Technology’s Technology Review. By 2000 that number soared to more than 25 million, and sites continue to grow exponentially.
Sometimes it is impossible to find sources for damaging language published on the Internet. An example is Apple vs. Doe where, in December 2004, Apple filed a lawsuit in Santa Clara County, California, against unnamed individuals who allegedly leaked information about a rumored new Apple product to several online news sites. Apple is seeking information from these “news” sites regarding identities of the sites’ sources, and has subpoenaed Nfox.com, the email service provider for PowerPage, for email messages that could provide that information.
The courts must walk a fine line between a federal statute interpreted as creating immunity and the responsibility for the harm caused by libel.
Unfortunately, many innocent companies are being damaged by individuals out for profit or self-promotion. Even in instances where legitimate organizations have been seriously damaged by bloggers, it’s difficult to counter unfounded attacks or to demand the actual sources, let alone seek the protections of the law.
It needs to be further examined to determine whether the protections in place for journalists are appropriate for bloggers, when they are not held to the same standards as the mainstream media. Journalists are held to account for what they say, whether or not they are quoting someone else. Unfortunately, the law has yet to create reasonable standards for the Internet and allows anyone to quote any source, with almost no liability for what they say.
The impact on innocent parties can be severe — some companies have lost millions in stock value from an irate individual speaking anonymously as an expert on a blog soapbox, making statements intended to be read as fact, although they may be nothing more than the venom generated by a personal and perhaps unjustified grievance. Even when such statements are later corrected or balanced, misperceptions are hard to change after the first assertion of fact.
Commenting on a recent case in which Traffic-Power is suing Aaron Wall, host of the Blog SEOBook.com, for defamation and the disclosure of company trade secrets, Steve Rubel, VP of client services with Cooper Katz and Co., noted, “Right now the world of consumer-created media is a bit like the Wild West. Anything goes. Eventually, as cases are decided (in either direction) and clear precedents are set, online marketers and their legal teams will be in a better position to assess their potential downside risk in jumping into the blogosphere — if any.”
The courts aren’t helping matters. For example, Landmark Education, an international training and development company that presents The Landmark Forum, dropped its lawsuit in New Jersey against Rick Ross, a self-professed “cult expert” who has built a career and reputation by quoting people’s opinions on his Web site. Landmark Education terminated its lawsuit when, in an unrelated case, a New Jersey court significantly limited the kind of Internet behavior it would consider damages for. Court decisions like that make it even more difficult for companies to protect themselves against misinformation and false accusations.
Ross, who claims he’s an expert on cults, religions and any organization he deems potentially harmful, should be held to a higher standard – not a lesser one. Rick Ross is a convicted felon with no degree of any kind. He says so on his own web site. His lack of professional qualifications doesn’t stop Ross from freely labeling credible organizations in the personal development area “worthless” and “faked.” While Ross acknowledges that Landmark Education is definitely not a cult, he nevertheless smears the company through innuendo. Ross also attacks John Gray, author of “Men are From Mars, Women are From Venus,” the Mormon Church and the practice of yoga.
Whether or not you endorse Gray or yoga, the law should protect their rights and demand journalistic standards and accountability.
It’s high time to fill the gap in a system that allows defamation in the blogosphere to go unchecked. The harm can be wide-ranging and devastating. Until the law catches up with technology, innocent parties have little or no protection in the volatile world of cyberspace.