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December 4, 2004
A Blogger's Defense Fund?
In the wake of the Jeopardy/Kottke incident, bloggers are starting to feel a little anxious about what protections the law affords them with regard to online speech. Here's another reason to worry: the question of whether a weblog writer can be held responsible for libel charges for simply re-posting potentially libelous material hasn't yet been definitively answered -- at least not in/by the state of California.
In a case pending before the California Supreme Court, two doctors are suing Ilena Rosenthal, a woman's health advocate, because she posted a controversial opinion piece in a Usenet forum. To be clear, she didn't write the piece. She simply passed it along for discussion -- just as countless bloggers do.
In a radical reinterpretation of section 230 of the federal Telecommunications Act, the California Court of Appeals ruled for the plaintiffs. The plaintiffs' lawyers claim that Rosenthal is liable because posting the piece and subsequent comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. The ACLU and EFF disagree.
"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," says ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."
Denise Howell, weblog writer and attorney-at-law, has written a guide of sorts to the current discussion about how to protect bloggers' freedom of speech in the face of the kind of attention that attracts lawsuits. She suggests formalizing the informal process by which top-notch cyberlaw clinics with pro bono talent to spare often choose cases with good facts for defending speech -- that is, taking the unpatented "submit-C&D-to-ChillingEffects-and-hope-for-the-best-while-contributing-to-knowledge" method one step further:
Hopefully, you can readily grasp the benefits of this, including tangible personal benefits for the blogger who receives such a letter. 1) You've gotten your issue in front of some very smart folks who also happen to be among the most likely to consider taking on your case on a pro bono basis if it's particularly egregious/milestone in nature. 2) If the analysis goes your way when they post the marked up letter (and bear in mind there's no guarantee it will; as far as the law is concerned you might have done something perfectly cease-and-desist-worthy), you have some good ammunition for responding to the sender. 3) The richer the Chilling Effects database, the more people it potentially can help.
The organizations involved in Chilling Effects, along with Stanford's CIS, should be the first line of inquiry for now I would think. What might be interesting to try to accomplish, and this is in keeping with what Jeff has in mind, is to set up a new legal clinic that is entirely devoted to providing pro bono services for these sorts of cases.
I like the idea. I also like that Denise is helping get the word out about what Chilling Effects does. This is a resource that gets better and better (more and more effective) the more people take advantage of it.
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