Today I want to write about a related issue: online imposture. Basically, online imposture consists of going online and pretending to be someone else.
It can be relatively harmless; I remember reading about ten years ago about an expert on online culture. She was puzzled when she got emails from people complimenting her on comment she'd made in a chat room the other night. Problem was, she had not been in the chat room. It seems someone had simply taken her identiy out for a ride -- had a good time pretending to be her and pontificating online for a bit.
That was harmless online imposture. It can also be harmful, and that is the kind I want to address.
I’m going to begin by summarizing a couple of incidents to illustrate what harmful online imposture is and how it occurs. Then I’ll talk a bit about the legal issues online imposture raises.
Let’s start with the incidents:
- The following facts come from an article in the Milwaukee Journal-Sentinel. (Lisa Sink & Linda Spice, Man Charged with Defamation, Milwaukee Journal Sentinel (June 7, 2000), 2000 WLNR 3077063.) After his boss fired him, David Dabbert went to the “`Sex on the Side’” website, which “features `attached’ women who are seeking sexual encounters `on the side’”. Dabbart posted an ad on the site that purportedly came from his former boss, using her real name and email address. The ad “described her chest size and hair color and, in part, said: `I'm highly stressed out. . . . I've only been with my hubby. He's gone at work 24 hours at a time . . . I want someone to make me their slut for the night’”. The woman received many responses to the ad, which left her frightened and embarrassed.
- Here’s another case reported by the same newspaper. (Lisa Sink, Family Therapist Investigated in Internet Complaint, Milwaukee Journal Sentinel (March 14, 2000), 2000 WLNR 3057614.) According to the article, a family therapist “posed as his former wife's new husband and posted an ad on an Internet site for swingers, asking interested men to call the couple.” It gave “the ex-wife's body measurements and home phone number and said: `Wife and I desire 3some with a male." The ad “prompted a slew of calls to the woman and her new husband”, which, again, left them frightened and embarrassed.
Before we deal with the legal issues, let’s just consider this as a phenomenon. Online imposture has several dimensions: In these cases , it seems the imposture was undertaken for vindictive purposes – to embarrass the person who was the object of the imposture. Now one can embarrass another person – offline or online – by publishing discreditable information about them. So if someone (hypothetically) went online and published an allegation that I am a drug addict, that allegation would embarrass me, whether it was true or not.
If the allegation were true (and I assure you it is not), then the embarrassment would result from the dissemination of true information. The publisher of the information would in effect have invaded my privacy by revealing that which I chose to keep secret.
If the allegation were not true (as I assure you it is not), then the embarrassment takes on a different tone. Now it is not merely an invasion of privacy – the revelation of true information I am trying to conceal – but a misrepresentation that casts me in a “false light” . . . that depicts me as being something I am not, something that is disreputable.
The distinction between publishing true discreditable information and not-true discreditable information gets us into the first legal issue we need to deal with. In either of the above scenarios, I would certainly be angry about the publication of the (again, purely hypothetical) allegation that I am a drug addict. If I were like most people, I would probably want some kind of redress – some kind of vindication/revenge/all that. So I might decide to sue the person who published this allegation (if, of course, I can identify who published the allegation).
If the allegation were true, then I would probably not have a case for defamation. The basic rule in this country is that truth is a defense to an action for defamation. So, think about that: if I decide to sue the person who published the allegation that I am a drug addict, I will in essence have to prove in court that I am not, never have been, a drug addict. Now, I may be able to prove that quite easily . . . but I would still have to go through the embarrassing process of having to prove I am not a drug addict, something I used to be able to assume people know. (I might also have to deal with the possibility that, even if I won, some people would always wonder if the allegation was true . . . . )
If the allegation were not true and I could prove that, then I should be able to win in my defamation suit against the person who published it. Now, though, we come to a practical problem. Most of the people I know – probably most of the people you know – don’t have a lot of money. So what good is m civil suit if the person who published the allegation doesn’t have thousands and thousands (millions and millions) of dollars to pay me and my lawyers when I win? If the person I want to sue clearly doesn’t have enough money to pay a judgment and attorneys’ fees, then most lawyers won’t want to take my case unless I can show, up front, that I can pay the very large sum of money it will cost to litigate and win. I don’t have that much money, so even though I would have the legal basis for a defamation suit, in practice that’s really not an option. I assume it was not an option for the victims in the online imposture cases I described earlier.
I might try to deal with the defendant-who-has-no-money problem by suing the operator of the website on which my tormentor published the false allegation that I am a drug addict . . . but that raises another problem.
Historically, those who published defamatory material could be held civilly liable for their role in defaming someone. This is not true for online publication: A section of the Communications Decency Act, “overrides the traditional treatment of publishers. . . . ‘such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing . . . defamatory material written or prepared by others.’” Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003). Concerned about lawsuits inhibiting free speech online, Congress added Section 230(c)(1) to title 47 of the U.S. Code. It states that “[n]o provider or user of an interactive computer service shall be treated as the publisher . . . of any information provided by another information content provider.” 47 U.S. Code § 230(c)(1). The effect of this provision is to immunize those who post content that is provided by someone like the hypothetical individual who posted the (quite false) allegation that I am a drug addict. The result is that my attempt to seek civil redress for the embarrassment I suffer from having that false allegation published will fail because (a) the person who posted the false information has no assets to pay a judgment or attorney’s fees and (b) the website operator is immune from suit.
In the Dabbart case, the local district attorney’s office prosecuted him for criminal defamation . . . and won. (Lisa Sink, Man Convicted Of Posting Ex-Boss' Name On Sex Site Defamation Case Believed To Be County's First Such Internet Prosecution, Milwaukee Journal Sentinel (August 11, 2000), 2000 WLNR 3037734.) Dabbart wound up pleading no contest to a misdemeanor defamation charge; he was sentenced to serve 15 days in jail, to two years on probation, to pay $1,280 in restitution and to perform 100 hours of community service. According to this new story, the victim urged Wisconsin lawmakers to “find new ways to charge individuals who pose as others over the Internet for lewd purposes.” (Sink, Man Convicted Of Posting Ex-Boss' Name On Sex Site Defamation Case, supra.)
This is an issue I explored in a long law review article I wrote recently. Criminal defamation (criminal libel) is very seldom used in this country – indeed, does not even seem to be a crime in many states. The reason is that our state criminal law was very much influenced by the Model Penal Code – a template of state criminal law that was drafted about fifty years ago. The Model Penal Code did many great things in terms of modernizing what had been a patchwork of criminal law derived from English common law.
It departed from English common law, though, in basically rejecting the notion of treating defamation as a crime. The drafters of the Model Penal Code (who said this was the most difficult decision they made) decided that defamation was better handled civilly than criminally.
I think they were probably right when they made that decision, about fifty years ago, but the landscape has since changed dramatically. When the drafters of the Model Penal Code decided defamation should not be a crime, they assumed that defamatory material would be published on television, in a newspaper, in a magazine – in the mainstream-media, in other words. And that was true when they wrote – if you think about it, fifty years ago someone with a grudge could not simply publish the kind of claims involved in the two cases I described at the beginning of this post. If they took that material to a newspaper or a magazine, they would have been sent packing.
The drafters of the Model Penal Code therefore implicitly assumed that someone injured by the publication of defamatory material would be able to find a deep-pocket to sue . . . someone with assets to pay attorneys’ fees and a judgment. As I’ve explained, that is no longer true: With online publication, anyone can pretend to be someone else and publish information that casts them in a seriously embarrassing light. The person who has been embarrassed cannot sue the individual who published the defamatory material unless that individual has enough assets to pay a judgment and attorneys fees (or unless the injured party does). The person who has been embarrassed may not even be able to identify the individual responsible for publishing the material, because it is so easy to be anonymous online. And, as I explained earlier, the operator of the website on which the material was published is, unlike conventional mainstream-media outlets, immune from suit for publishing the material.
So, maybe we should reconsider criminalizing defamation.