Sunday, April 29, 2007


Confidence: “n.That which is confided, a secret.”

I have an article coming out in the Mississippi Law Journal in which I analyze whether we should criminalize defamation as a way of controlling certain kinds of “problematic” speech online.

By “problematic” I mean cases like the one in Wisconsin in which the fired employee retaliated by using his former boss’ name, address and phone number in a posting he added to “Sex on the Side,” a website for married women who are looking for “action on the side.”

That Iwas a clever, nasty way to cause this woman a lot of grief.

It's also a good example of the kind of thing defamation law COULD be used to discourage because this incident has all the basic elements of defamation: a false statement, published intentionally that has the effect of holding the victim up to ridicule and/or damaging her reputation. Defamation has generally either not been criminalized in this country or, if it is criminalized in a state, tends to be a very minor crime that is seldom, if ever, prosecuted.

But I don’t want to talk about defamation here. I want to talk about a different, residual category of “harm” I encountered in researching the online defamation issue. This type of “harm” results when someone (Person A) posts ostensibly “private” information about another person (Person B).

A good example of the alleged infliction of this type of “harm” came in the Jessica Cutler-Robert Steinbuch case. The two Congressional staffers were lovers for a time. Cutler, without Steinbuch’s knowledge or consent, posted details of their sexual encounters online in her blog. The postings were later picked up by another blog and circulated widely. Steinbuch sued Cutler for “describing in graphic detail the intimate amorous and sexual relationship between Cutler and” himself. His complaint said that her “outrageous actions, setting before anyone in the world with access to the Internet intimate and private facts regarding [Steinbuch], constituted a gross invasion of his privacy, subjecting him to humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society.”

I’m perfectly willing to concede that the postings caused Steinbuch humiliation and anguish, both in excess of what a reasonable person would want to endure. My issue lies with the nature of his complaint against Cutler.

This isn’t a defamation case, a libel or slander case, because he doesn’t say that what she posted was untrue. His complaint, then, lies not with what she said but with the fact that she said it – that she “published” it to other people in a very public way. And that’s the issue I want to talk about, the residual issue that cropped up when I was researching the evolving, morphing phenomenon of online defamation.

Historically, defamation law has protected people from “harm” by discouraging others from (i) intentionally (ii) publishing (iii) false information about them that (iv) is calculated to cause them “harm” by damaging their reputation or holding them up to ridicule. For all intents and purposes, I think we can fold “ridicule” into damage to one’s reputation, so I won’t break those “harms” out into different categories.

The rationale the law has used for sanctioning defamatory material falls into two categories: Civil law allows people to seek monetary damages for the publication of defamatory material, on the premise that the compensation redresses the “harm” done to them. Criminal law historically imposed criminal sanctions on people who published defamatory material because its goal was prevent people from doing this and thereby discourage what the law calls “self-help”, i.e., defamed people taking the law into their own hands. This used to be a major concern back in the days of dueling, but this rationale has pretty much dropped out of modern defamation law, so the remaining rationale for both civil and criminal defamation is the damage to one’s reputation.

The Steinbuch case and similar cases in which someone publishes true information about another person can also damage that person’s reputation, but modern defamation law, anyway, would not see that as defamation because, as I noted above, the material is not false. Here, the damage to someone’s reputation results not from their being portrayed in a “false light”, but from information leakage. As everyone who’s ever taken a sociology course knows, we all play roles – we present one “face” to a certain group of people and a very different “face” to other people, or to another person.

We have historically been able to do this because we have been able to exert a fair degree of control over the segregation of personal (and professional) information we rely on to support these disparate roles. Assume, for example, John Doe: a Certified Public Accountant, a deacon in his Methodist church, a coach for his son’s Little League team, a husband and an habitué of Sado-Masochistic clubs, He plays a different role for each activity . . . in effect, has a different “self” for each activity. His ability to segregate those selves depends on his ability to parse the relevant information out among the roles and among the people who experience him in these different roles. And because some of the roles are not inconsistent, the information leakage issue will only become an issue for a certain role or certain roles; in this example, the leakage issue would arise with regard to his recreational S-M activities.

In the real-world, we have always been able to manage this kind of information segregation pretty satisfactorily. Those who know us in our more discreditable roles are unlikely to be people who interact with those who known us in our more “public,” more conventional roles, so that helps sustain the information segregation. Those who know us in these roles may gossip about us, but that will generally have limited circulation in the real, physical world; the gossip will be shared with people who know each other, and since they probably do not participate in the aspects of our lives in which we play more creditable roles, the segregation holds. Information leaking issues can arise, of course, when someone we know from a more discreditable aspect of our lives either directly shared information about that aspect with our families, our co-workers or others whom we interact with in our more creditable roles. This results in some information leakage . . but for those of us, the vast majority of us, who are NOT celebrities, the leakage tends to be limited in scope. That means the damage will also be limited in scope.

Cyberspace changes all this. To paraphrase Louis Brandeis and Charles Warren, who wrote a law review article on invasions of privacy over a century ago, today “what is whispered in the closet” can now be broadcast to the world . . . over and over and over.

That is the Steinbuch problem . . . the information leakage problem. And it is a problem. We trust people. We have to trust people, whether we are being our creditable or our less-than-creditable selves. We realize at some level that people can betray us, but we do not expect them to do so. Like Steinbuch, we are hurt and embarrassed when this happens.

Is this a legal issue? Should this be a legal issue? By that, I mean should the law step in and create a new crime, a new civil cause of action or both to provide mechanisms by which those who betray confidences can be sanctioned? The goal of such innovations would be to discourage people from betraying confidences.

You may disagree, but I do not see how we can do that. When we have affairs, when we go to S-M clubs, when we do other things we would prefer not to have broadcast to the world, we know that can happen. We know we are relying on that most fragile of things: trust . . . confidence that others will not betray us.

How can we prosecute people (I tend to default to the criminal solution) for betraying us? We prosecute people for betraying their country, but that’s different, if only because it is an indirect path toward death, injury, destruction and other real, physical “harms.” When someone betrays us, we suffer a “harm,” a real “harm” . . . but it primarily a psychic “harm.” Criminal law, anyway, has, and is, loath to sanction people for inflicting psychic “harm” on each other. If we began to do that, where would we stop? Would it become a crime to gossip about others . . . about how they dress? How they look? How much they earn? How ugly their dog is? How tacky their apartment is? . . . and so on and so on.

We could try creating a civil cause of action allowing someone to recover damages for the infliction of this type of psychic “harm,” but there are several problems with doing that. One is that the number of lawsuits would very quickly overwhelm the current court system and any court system we’d care to design. The other is that most of the people who would be sued are what the law calls judgment-proof; that is, they don’t have enough assets to pay a judgment or even to pay the other side’s attorneys’ fees.

Law does not seem a good solution. I wonder, then, where all this will take us. Maybe we will become so inured to the “outing” of various aspects of people’s lives that we will lose interest in it. . . .

1 comment:

Larry Fafarman said...

The Law Blog Metrics blog reported your law journal article titled, "Should Online Defamation be Criminalized?". Here is the abstract of the article:

In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder; the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.

Below is a modified version of a comment I submitted to the Law Blog Metrics blog in response to the above abstract -- this comment is still awaiting approval there. This comment's embedded URL links are shown as "CLICK HERE" because embedded links on the Law Blog Metrics blog are not conspicuously highlighted by underlining or other means.

>>>>>>>In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder . . . . <<<<<<<<

For one thing, I think that "rape" is not a good comparison because rape often does not result in physical or psychological harm. And IMO the comparison to murder is unreasonable. There are even many felonies that do not begin to compare with murder. I don't think that deciding whether or not something should be criminalized should be based on a comparison to murder.

>>>>>>. . the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation. <<<<<<<

I agree that the Internet has increased the opportunities to defame, but I don't see what that has to do with the question of whether or not libel should be criminalized. Few people have the opportunity to embezzle one million dollars, but that does not mean that such embezzlement should not be criminalized.

For the following reasons, I feel that libel cases should remain in the civil courts and stay out of the criminal courts:

(1) Decisions on whether to prosecute crimes are discretionary, and criminal prosecution of libel is much more likely when the libel victim is rich, famous, and/or well-connected.

(2) Libel cases often involve claims for substantial monetary damages, and the government should not help people collect such damages.

I think that "cyberbullying" in general and arbitrary censorship of comments submitted to blogs or other websites are far more serious problems than libel (though libel on the Internet may be considered to be a form of cyberbullying). By "cyberbullying," I don't mean just letting off some steam, but I mean such things as credible threats of violence and disparagement of people's race, color, sex, religion, sexual orientation, and national origin. By "arbitrary censorship of comments," I mean the censorship of comments solely because the blogger or other website administrator disagrees with them.

Arbitrary censorship of blog comments is generally not considered to be a problem because most people still think of blogs as being private or personal websites where the bloggers should have complete freedom to censor comments as they wish. However, many popular blogs -- particularly blogs that got off to an early start -- have now become prominent de facto public forums. Some of the bloggers on these blogs are now trying to play "King of the Hill" by preventing some others from posting comments on these popular forums. Because the Internet has the potential to greatly enhance our ability to communicate, efforts to prevent Internet communication are actually a form of anti-intellectual and unscholarly Luddism. Also, many blogs are now being authoritatively cited by court opinions, scholarly journal articles, etc., and such citation should end any pretense that the cited blogs are strictly private or personal. Should authoritative citation of arbitrarily censoring blogs be prohibited or discouraged? I think so. For practical purposes, the status of many of these popular blogs as de facto public forums is no different from that of newspapers, major magazines, radio and TV stations, etc..

IMO, a fundamental part of libel law is the question of the right of the libeled person to post a rebuttal on the site where the libel occurred. The courts have answered this question in different ways for printed publications and radio & TV broadcasters -- CLICK HERE

In the case of radio and TV broadcasters, the obligation to present differing views has been called the "fairness doctrine" (the "equal-time" or "equal-space" rules are similar to the fairness doctrine but are different). There is a conflict between the freedom-of-the-press right to control media content and the freedom-of-expression right of outside commenters. In applying something like the "fairness doctrine" to blogs, I think that the courts would tend to side with the commenters rather than the bloggers because commenting space on blogs is virtually unlimited and is free of charge to the bloggers.

A lot of bloggers want to have their cake and eat it too -- they want their blogs to have the benefit of being considered private without any of the responsibilities. For example, while wanting complete freedom to arbitrarily censor comments submitted to their blogs, they do not want to be held responsible for others' comments that they allow to remain on their blogs.

The title of a federal law, 47 USC §230, says that this law provides "protection for private blocking and screening of offensive material" on the Internet. Ironically, there does not appear to be any federal law that provides ""protection for private blocking and screening of inoffensive material" on the Internet! LOL 47 USC §230 was enacted as the "Communications Decency Act." For the text of 47 USC §230, CLICK HERE. The Electronic Frontier Foundation's Bloggers' FAQ webpage on this law says,

Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." . . .

Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it.

It is crazy that we have the above law that gives bloggers and other website administrators immunity from prosecution for libelous material from a 3rd party while there is no "fairness doctrine" or "equal-time" law requiring them to post rebuttals from the libel victims (regardless of the source of the libel)! Thus, Fatheaded Ed Brayton (Dispatches from the Culture Wars) and Sleazy PZ Myers (Pharyngula) are free to take potshots at me on their blogs without being obligated to post my rebuttals on their blogs. I think that many libel victims would rather post rebuttals on the sites that libeled them instead of going to the expense and trouble of a libel suit -- indeed, the purpose of a libel suit might be to pressure the libeler into allowing a rebuttal on the libeler's site.

I don't think that laws alone are going to solve the problems of Internet cyberlibel, cyberbullying, and arbitrary censorship of comments. What we need is an Internet culture that frowns upon these things. That is not the Internet culture that we have now.

Cyberbullying is discussed on my blog at -- CLICK HERE and CLICK HERE

Arbitrary censorship of comments is discussed in the following groups of articles on my blog:


Larry Fafarman
Founder, Association of Non-Censoring Bloggers