Now everyone can experience publishing’s perils

In July, a Missouri appeals court reinstated a lawsuit filed by a breeder of Chinese crested show dogs against two bloggers who had made defamatory comments about the kennel.

Currently, a fellow in Las Vegas is defending himself against a lawsuit filed by a copyright enforcement company representing the Las Vegas Review-Journal, because he reprinted articles from the newspaper on his blog without permission.

And last month, a New Jersey jury convicted a man of “threatening to assault or murder a federal official or judge,” because the man had written on the Internet that three federal appeals court judges deserved to be killed after they had made a decision he didn’t like. The conviction carries a maximum 10-year prison term.

No matter how extreme the examples get, the common thread is this:

All were written or posted by “citizen journalists,” who had become publishers in the eyes of the law as a result of their online activities, and in that sense they are responsible for the impact of their words and any legal action that might result.

You can find the details of these cases at, along with many more stories of people who probably thought they were just exercising their First Amendment right to free speech, only to find themselves in court on the wrong end of a lawsuit.

I offer this information as a public service, from the perspective of someone who once spent 16 years battling a lawsuit in a series of decisions and appeals that went all the way to the U.S. Supreme Court. Right or wrong, I don’t recommend being the defendant in a libel suit as a cure for insomnia.

But that opportunity is now open to almost everyone.

Thanks to the Internet, publishing is no longer limited to people who buy their ink by the barrel. Anyone with access to a computer is free to publish anything he or she wishes — and along with that freedom come not only responsibility for what you write, but liability.

Bloggers and online commenters have only their often-unschooled selves, but are still subject to the same laws as more established journalists. So, for that matter, are letter writers.

You should be aware, however, that there is a major legal difference between a letter to the editor in a newspaper and a comment from a reader online.

A newspaper generally is responsible for what it prints and distributes, including letters, but online is different. There, the online service provider is considered only the conduit, and is not responsible for anything the commenters might write.

That distinction comes from a section of the Communications Decency Act enacted by Congress in 1996, designed to allow Internet sites to provide a means of vigorous and open conversation without making the site operators liable for everything that anyone posts there.

“Online service providers are protected from liability for comments posted by their users,” affirmed Jonathan Hart, a lawyer for DowLohnes in Washington, D.C., who serves as general counsel for the Online News Association, “but the users remain liable for their comments.”

Many Web crawlers post their comments anonymously, but judges in libel cases can and often do order websites to reveal the names of people who post comments that the judges consider actionable.

“You’re not as anonymous as you might think,” said Sandra Baron, executive director of the Media Law Resource Center, who says that Web-related litigation is on the rise. “People need to be more careful . . . it can be dangerous to be publishing to a potentially huge audience without some understanding of the basics of libel and other laws that apply to publishing.”

This isn’t a primer on how to avoid legal problems, but if you comment online, here are two very good pieces of advice:

1. Be sure what you write in your online comments is true. If you are going to write that an auto dealer cheated you, or a contractor stole your money, or your child’s teacher lied to you, you’d better be prepared to prove it, because you might get the chance in court.

2. Arm yourself with knowledge. Read Hart’s book, “Internet Law: A Field Guide” (BNA Books). Visit Baron’s Media Law website, and read what’s on it.

The sleep you save just might be your own.

This column was originally published in the Cleveland Plain Dealer on Sept. 26, 2010.

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