*** Re: 4/22/02 - Public Citizen: Legal Perils and Legal Rights of Internet Speakers (Part 1 of 2)
Legal Perils and Legal Rights of Internet Speakers
an outline with citations to accompany talk
by Paul Alan Levy
Public Citizen Litigation Group
plevy@citizen.org
Resources Information
There is a decent outline available online covering a number of issues relating to the Internet on the
web site of the Libel Defense Resource Center:
Fifer & Doellinger, Annotated Bibliography of Materials Concerning First Amendment &
Intellectual Property Internet Law Issues, ldrc.com
This site features more generalized discussions, with more lay-oriented prose and fewer citations
Bitlaw, bitlaw.com
Some good collections of links on this issue can be found at
bitlaw.com
Intellectual Property in Cyberspace 2000 (course offered by Harvard University's Berkman
Center, eon.law.harvard.edu
All About Trademarks, ggmark.com
Several groups with good resources on Internet free speech include:
Public Citizen Litigation Group, www.citizen.org/litigation/briefs/internet.htm
American Civil Liberties Union, aclu.org
Electronic Frontier Foundation, eff.org
Center for Democracy and Techonology, cdt.org
Electronic Privacy and Information Center, epic.org
John Does Anonymous Foundation, johndoes.org
Chilling Effects Clearinghouse, chillingeffects.org
Dan's Domain Site, domains.dantobias.com
Resources Dealing with Litigation and the Threat of Litigation
If threatened with suit, take it seriously
Demand letters
Normally you get a demand letter first (but no guarantees)
Take these seriously too
Sometimes suit can be avoided without giving up your rights
Need to think through chances of success or loss and consider cost of defense
worth paying for that sort of advice (without hiring lawyer for case)
think carefully about the demand letter though
if it does not make sense to defend case, consider giving in now, while it's cheap
Need to respond
Failure to respond in domain name case may be factor allowing plaintiff to file in
rem suit in jurisdiction where registrar is located (far from defendant's home)
And, response can accomplish several things
Response is the first stage of litigation; must be drafted with litigation in mind
anything you say can be used against you
judge and jury will see your response
Hence, legal advice is a good idea at this stage
Response might persuade the challenger that you are within your rights
If the challenger knows you will not just roll over, it may be more
amenable to compromise
Response is also aimed at wider public
often, a good response can head off litigation by reminding the plaintiff how much
the lawsuit will cost, not just in legal fees, but in bad publicity
do a press release; communicate with the Internet community
one young woman picketed, and it worked see wallgreens.com
Good collection of documents on the Chilling Effects web site
Getting Legal Help
Tempting to try to represent yourself, but it's risky
easy to make devastating procedural mistakes, miss good legal arguments
in theory, courts should treat pro se defendants and their procedural mistakes more
leniently. Haines v. Kerner, 404 U.S. 519 (1972)
but they often do not
some courts are much better than others in helping pro se defendants cope
Second Circuit is particularly careful
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Hard to find a lawyer at an affordable price
unlike plaintiffs, hard to finance these cases through contingent fees or attorney fee
awards
cases are time consuming and expensive
there are a handful of public interest groups (listed above), but they have very limited
resources
if they can help, though, they will often represent clients all over the nation
there are a few law school clinics interested in this area
some clinics help only in courts that are close enough for students to appear
American University (DC)
wcl.american.edu
Georgetown University, Institute for Public Representation
law.georgetown.edu
Stanford University: Center for Internet and Society
cyberlaw.stanford.edu
University of San Francisco, Internet and Intellectual Property Justice Clinic
usfca.edu
University of California Berkeley, Samuelson Law, Public Policy and
Technology Clinic
boalt363-1.law.berkeley.edu
Harvard Law School, Berkman Center Clinical Program in Cyberlaw
cyber.law.harvard.edu
Duke, law.duke.edu (not exactly a clinic)
University of Washington Center for Law and Technology
law.washington.edu
Consider insurance coverage
insurance can cover your legal defense and your liability if you lose
caution: all of these issues vary from state to state
the specific language of the insurance policy is key
first thing to do if challenged: look at your homeowner's or renter's policy
if you have the right coverage already, make a claim immediately
policies can not only pay your damages but, more important, pay for
a lawyer to represent you
if you don't have the right coverage, think about whether to apply for the
right coverage
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once you get a demand letter, it may well be too late
you may have to disclose problem in application
demand letter probably counts as a "claim" that would not be
within the coverage period
if have a site that may lead to litigation, this is something to
consider
to get coverage for libel, need coverage for "personal injury" rather than "bodily
injury" or "property injury"
often not in the ordinary homeowners' policy
this coverage can be very inexpensive
more expensive is a "personal liability umbrella policy" ("PLUP")
if you have a business, you may get coverage under your comprehensive general
liability policy ("CGL") or the similar business owner's policy ("BOP")
these policies are more expensive
they cover trademark claims as well as libel
they may only provide coverage if the site is advertising your business'
goods and services
quite the opposite of your best arguments in trademark defense
General Points
First Amendment rights apply with full force to the Internet.
Reno v. American Civil Liberties Union, 521 U.S. 844, 853, 870 (1997).
much good, ringing language about its potential for letting ordinary citizens speak
effectively
Given the First Amendment, think of First Amendment doctrines when you are sued
For example, a preliminary injunction would be a prior restraint, which is almost
always forbidden. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225
(6th Cir. 1996); New York Times v. United States, 403 U.S. 713(1971); Auburn
Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993)
Note, however, these protections are much less if the speech is "commercial" speech.
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Dun & Bradstreet v. Greenmoss Bldrs., 472 U.S. 749, 762-763 (1985)
The First Amendment regulates only actions by the government. But courts are government actors;
so even in a lawsuit involving only a private parties, an injunction or an award of damages is
government action, and so subject to the First Amendment. New York Times v. Sullivan, 376 U.S.
254 (1964) (damages); Shelley v. Kraemer, 334 U.S. 1 (1948) (injunction); Organization for a Better
Austin v. Keefe, 402 U.S. 415, 418 (1971) (injunction).
If a private party uses its economic power to interfere with internet speech, without getting
a court order, the question is whether a state or federal law protects speech in that instance.
Employer action may be governed by section 7 of the National Labor Relations Act, 29
U.S.C. § 157, or by a specific federal anti-retaliation act, or by a state conscientious
employee or similar law. E.g., AB 1698, adopted 10/10/99 (California); C.G.S.A. § 31-51q
(Connecticut); N.J.S.A. 34:19-3. Union action may be regulated by section 101 of the
Labor-Management Reporting and Disclosure Act. 29 U.S.C. § 411.
Note the dangerous decision in Intel Corp. v. Hamidi, 94 Cal. App.4th 325, 114 Cal. Rptr.
244, 252-255 (2001) finding no state action because the defendant's emails were trespassing
on private property.
Personal Jurisdiction Concerns (where you can be sued)
Merely having a web site does not necessarily mean you can be sued anywhere in the country.
A newspaper or magazine can be sued for libel anyplace where it sends more than a handful
of copies. Keeton v. Hustler Magazine, 465 U.S. 770 (1984).
But not necessarily true of a web site it depends what kind of web site you have.
The courts speak of a continuum between merely passive sites and highly interactive ones.
To sue the operator of a passive site, the plaintiff must go to the operator's own
state, while the operator of a highly interactive site can be sued wherever the site has been
seen and used.
Some leading cases discussing this distinction are Zippo Mfg. Co. v. Zippo Dot Com,
952 F. Supp. 1119 (W.D. Pa. 1997); Cybersell v. Cybersell, 130 F.3d 414 (9th 1997).
These cases stress that the interactivity that makes one amenable to suit is
commercial interactivity; that is, the fact that the site visitor can use the site to place
commercial orders.
Some cases that have refused to allow suit far from the defendant's home are
Cybersell; Neogen Corp. v. Neo Gen Screening, 282 F.3d 883 (6th Cir. 2002); Soma
Medical Intern. v. Standard Chartered Bank, 196 F.3d 1292 (10th Cir. 1999); Mink
v. AAAA Development, 190 F.3d 333 (5th Cir. 1999) (Vermont company could not be
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sued in Texas because of a passive Internet site even though viewers could use site
to send emails to the defendant); Bensusan Restaurant Corp. v. King, 126 F.3d 25,
29 (2d Cir. 1997); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636,
639 (E.D. Pa. 1998); Edberg v. Neogen Corp., 17 F. Supp. 2d 104, 113-115 (D.
Conn. 1998); Santana Prods. v. Bobrick Washroom Equip., 14 F. Supp. 2d 710, 714
(M.D. Pa. 1998); Oasis Corp. v. Judd, 132 F. Supp.2d 612, 623 (S.D. Ohio. 2001)
(gripe site allowed visitors to generate automatic letters to media and target of
criticism). An extreme case denying jurisdiction is Berthold Types Ltd v. European
Mikrograf Corp., 102 F. Supp.2d 928 (ND Ill. 2000)
Merely placing an email address or mailto link on the page is probably not enough
to make the page sufficiently "interactive" to justify jurisdiction. Mink, supra;
Desktop Technologies v. Colorworks Reprod. & Design, 1999 U.S. Dist. LEXIS
1934; Osteotech, v. Gensci Regeneration Sciences, 6 F. Supp. 2d 349, 356 (D.N.J.
1998); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636, 639 (E.D. Pa.
1998) Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. Ct. App. 1998).
Note some cases seem to go against the pattern: Inset Systems v. Instruction Set, 937 F.
Supp. 161 (D. Conn. 161).
State courts tend to be less friendly to this sliding scale analysis. E.g., Pavlovich v. Superior
Court, 91 Cal. App.4th 404, 109 Cal. Rptr. 2d 909 (2001); Kubik v. Route 252, Inc., 762
A.2d 1119, 1124-1125 (Pa Super. 2000)
Note also: defendant's non-internet contacts can also establish jurisd iction. Heroes, Inc. v.
Heroes Foundation, 958 F. Supp. 1 (D.D.C. 1996). So, for example, a national group can
avoid be sued throughout the US even if its web site is wholly passive.
Personal jurisdiction can be waived if the defense is not asserted at the very beginning of the
case
Consider advantages of the forum before deciding to press this issue
maybe a California plaintiff will give up if it has to come to Arkansas to sue you; but
if you are sued in California, you can use the California SLAPP statute for defense
against state law claims. Potential for attorney fee award provides a way to recruit
private lawyer
maybe an Illinois plaintiff will give up instead of coming to Delaware to sue you for
libel, but in Illinois you can raise the "innocent construction" defense, the strongest
innocent construction rule in the country
Liable only for your own content
Communications Decency Act, section 509 protects the "provider or user of an interactive computer
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service" from being held liable for "information provided by another information content provider"
47 U.S.C. §§ 230(c)(1), 230(d)(3)
Several courts have held that this protects the operator of a computer bulletin board against
liability for defamation by a poster on the board, or even by a news provider that the operator
pays for content. Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir.
2000); Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992
F. Supp. 44 (D.D.C. 1998).
This applies even to defendants who are not ISP's like AOL, but simply operate a web site.
Marczeski v. Law, 122 F. Supp.2d 315, 327 (D. Conn. 2000); Barrett v. Clark, 2001 WL
881259, *9 (Cal. Super.); Schneider v. Amazon.com, 31 P.3d 37 (Wash. App. 2001)
exception for trademark or copyright violations: 47 U.S.C. § 230(e)(2)
Protecting the right to speak anonymously
Supreme Court precedent recognizes the right to speak anonymously.
Buckley v. American Constitutional Law Found., 119 S. Ct. 636, 645-646 (1999); McIntyre v. Ohio
Elections Comm., 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960)
A few cases address how to strike the balance between the right to speak anonymously and
the interest of a plaintiff in getting redress:
Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756 (N.J. App. 2001); In re 2TheMart.com,
Inc. Securities Litigation, 140 F. Supp.2d 1088 (W.D. Wash. 2001); Columbia Insurance
Company v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999); Melvin v. Doe,
aclu.org (Pennsylvania Common Pleas, November 2000).
The best articulation of the balance remains the briefs filed by the ACLU, the EFF, and
Public Citizen on this issue. There is a collection of such briefs on Public Citizen's web site,
at citizen.org to Speak Anonymously
America Online's legal department maintains an archive of decisions on this issue:
legal.web.aol.com
In arguing under this standard, a variety of common libel defenses are incorporated:
Requirement that plaintiff in a case involving a labor dispute prove actual damages:
Linn v. Plant Guard Workers, 383 U.S. 53 (1966)
This is required for all defamation claims by the law of some states:
Global Telemedia v. Does, 132 F. Supp.2d 1261 (C.D. Cal. 2001)
Fact / opinion distinction:
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Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
Some states have more protective standards on this issue. E.g., Vail v. Plain Dealer
Pub. Co., 72 Ohio St. 3d 279, 281-282, 649 N.E.2d 182 (1995)
"Truth is a defense." Actually, the plaintiff has to prove falsity.
Most libel cases involving public figures founder on the requirement that the
defendant must have spoken with actual malice knowledge of falsity, or reckless
disregard of probably falsity. But it is hard to avoid identifying the defendant if the
Court needs to reach this issue.
In California, criticism of a public corporation is treated as relating to an issue of
public interest, and thus subject to a special motion to strike under the anti-SLAPP
statute. Computer Xpress v. Jackson, 93 Cal. App.4th 993, 1007-1008, 113 Cal.
Rptr.2d 625 (2001); Global Telemedia v. Does, 132 F. Supp.2d 1261 (C.D. Cal.
2001)
A claim based on "injurious falsehood" has to meet the constitutional requirements
for defamation no matter what the label on the claim.. Hustler v. Falwell, 485 U.S.
46 (1988); Blatty v. NY Times Co., 42 Cal.3d 1033, 1044-1045 (1986).
Good
general
discussion:
Lidsky,
Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J.
855 (2000), johndoes.org
If the complaint is based on some theory other than injurious falsehood, the Dendrite
standard for protecting anonymity is equally applicable, but the test is applied through the
prism of whatever the substantive elements of that claim may be (for example, breach of
contract by employees).
Note the discovery concerns here for the operator of a web message board. The hostile
target of a message board can keep the host very busy serving subpoenas for the identity of
the posters of hostile messages.
One host has configured his message board so that each message shows both the
Internet Protocol number and the time of posting. Although original reason was
simply to encourage posters to be more responsible, one result was that he had no
"private" information about posters, and so could not be subpoenaed every time the
company was unhappy about a message. NWA Flight Attendants Forum,
216.156.32.93
Taking the other tack, some web hosts go out of their way to limit access to the message
board to "insiders." A recent case held that an employer that snooped on a private web site
message board could be sued for damages under the wiretap laws and the Railway Labor
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Act. Konop v. Hawaiian Airlines, 236 F.3d 1035 (9th Cir. 2001), but the opinion has been
withdrawn after a petition for rehearing. 262 F.3d 972. Over six months later, no new
opinion has replaced the withdrawn opinion. A web site taking this approach is
aercon.org.
Take care about promising more anonymity than you can deliver. A poster might well claim
that violation of such a promise is a breach of contract. Cf. Cohen v. Cowles Media, 501
U.S. 663 (1991).
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