Defamation on message boards
Chat Spats
As more companies file lawsuits against individuals they say defamed them in online message groups, should the host sites monitor chats to curb these so-called "cybersmears"?
Posted on August 25, 2000
Elizabeth Hurt
An executive could spend hours trolling through financial chat rooms, taking note of all the mean things said about her company. And it might be worth the extra time. In July 2000 a superior court judge ruled in favor of a New Jersey pharmaceuticals company that sued three men who had posted "clearly libelous" comments about it on a Yahoo! (YHOO, info) finance message board.
While these so-called cybersmear lawsuits are nothing new--more than 100 have been filed in the United States--they are usually settled out of court. But legal experts say the New Jersey ruling marks the first time a court has decided a case of corporate cybersmear on its merits. While it's clear where the plaintiffs and defendants are positioned in these lawsuits, do the Websites that host these message boards need to mend their ways?
Although they facilitate these postings that ruffle feathers in the corporate world and pad wallets in the legal world, host sites stand on rather stable legal ground.
Under the 1996 Communications Decency Act, an Internet message board host is considered a third party and therefore not liable for the content posted by its members--similar to a telephone company that can't be held responsible for its customers' conversations
Ironically, however, the more the sites try to edit or eliminate offensive posts, the more liable they potentially become. "The more monitoring they do, the more they purport to affect the content of the messages, then the more likely they are to be held accountable for it," says attorney Blake Bell who edits Cybersecuritieslaw.com, a site focusing on developments in Internet law, and has also represented several companies in cybersmear cases.
Raging Bull, which hosts numerous finance message boards, has a team of "community advocates" that addresses content concerns, according to Tara Burgess, the site's community development manager. These advocates only remove postings when a member complains about a message, claiming that it is a violation of the site's "terms of service", which, among other things, inform members that they can't post anything they know to be false.
"It would have to be real false information," says Burgess. "Saying a CEO is a poor money manager is just an opinion. It needs to be an overt violation of those terms for us to take action. It can't just be what one person finds offensive."
Since people rarely use their real names when participating in chat rooms or message boards, companies usually file their cybersmear lawsuits against "John Does". The companies then subpoena the message board hosts for the poster's identity.
When this happens, Yahoo staff counsel Jon Sobel says his company strives to maintain its removed status.
"The only involvement we have is as a witness," Sobel says. "We're often in the middle of competing interests on the boards and we try to balance the interests and concerns of all sides."
While there have been attempts to blame message board hosts for posted content, those lawsuits have been thrown out of court.
"The courts are being solicitous to protect, it seems, the providers of the medium," says Bell. "But they certainly aren't protecting people merely because they are using this medium."
Given that protection, these sites should do more to look out for their members, says attorney Megan Gray, who has represented several cybersmear defendants.
"Because they have this get-out-of-jail-free card, I think [message board hosts] should do more to protect those that don't have that card," says Gray. "They have the resources, they have the ability, they have made assurances, and they are just not following through."
Gray argues that, when issued a subpoena, sites give up private information without fully evaluating a subpoena's validity. Often, after learning a poster's identity, a company lawyer will drop the lawsuit once the defendant promises to stop complaining about the company.
"The net effect is that individual loses because he is being intimidated into giving up his First Amendment rights without a valid reason," says Gray.
Earlier this year, Gray represented a client that sued Yahoo! for disclosing his personal information in response to a subpoena, and for not warning him that he had been subpoenaed. The plaintiff later dropped the lawsuit.
Sobel, declining to comment on any specific cases, says Yahoo does now give members notice before identifying them. While Sobel acknowledges that some of these lawsuits may be frivolous, he says there is no way for Yahoo to make that determination.
Raging Bull's Burgess says she's seen message board participants begin policing themselves.
"[Participants] are watching out for each other, they will say `Hey, you better watch what you say,'" says Burgess. "It's very collegial. I think people who are participating in message board communities regularly are getting a lot more savvy in how to use them wisely. You never know who is on the other side of an alias. That's the most important thing."
Elizabeth Hurt (ehurt@business2.com) is a reporter for Business2.com |
