Eric Felten brilliantly skewers the supposed credibility of the online “marketplace of ideas” when he recently wrote last week in the Wall Street Journal:

Spend any time on the Internet and – like the naif in the ‘Casablanca’ gambling room dumbfounded when the wheel comes up 22-black twice in a row – one’s bound to ask, ‘Say, are you sure this place is honest?’

This sort of thing seems oddly hilarious and at the same time naïve in the same way as the fool in Casablanca, in whose defense one could at least say it was a different time.  Last I checked, there was no giant sign over the entrance to the internet saying “tread warily here”, although Felten’s point about the sensitivity of individuals to words being written about them is hardly a new concept.  Just one small point of reference: I handle a fair amount of pre-publication review of publications for libel (i.e. in advance of actual publication), and one thing I usually drill into my publishing clients is being somewhat sensitive to the litigatory likelihood of the person about whom words are being published.

I’m not saying shy away from controversial journalism, and it’s advice that probably did not compel the muckracking vision of Woodward and Bernstein or the “American Century” mantra of Henry Luce.  Nonetheless, don’t ask a libel lawyer for advice unless you’re willing at least to consider whom you’re writing about if one of your goals is simply to avoid getting sued.

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

A third and possibly even more “magical” contribution of the internet to the law of libel involves imaginative expansion of the types of publishing that can be libelous.

Example number one is a suit Felten writes about against Yelp by a California veterinarian, claiming that Yelp’s rating system results in fraudulently produced and therefore libelous reviews of services (such as the veterinarian’s) derived from rankings that are at least partially driven by competitor’s purchasing of Yelp local advertising.  Yelp defended its case and its rating system, arguing that its reviews are “completely independent of advertising – or any sort of manipulation.”  With thinly veiled sarcasm, Felten notes that Yelp coupled its vigorous defense with a simultaneously announced discontinuance of the challenged ratings process based on advertising.

Much of libel litigation on the internet – and much of privacy law, and similar torts involving personal reputation and privacy matters generally – focuses first on the “outing” of anonymous bloggers, commenters and other sources of allegedly defamatory commentary, product reviews, critiques and what not.  That anonymity, in turn, owes its robustness to the late-1990s Communications Decency Act (CDA) and Digital Millennial Copyright Act (DMCA) laws protecting internet service providers and website operators from liability for copyright infringement or defamatory conduct of users of the operators’ web forums, chat rooms, product review pages, YouTube and on and on.

So, on the one hand there are the ISPs and websites (AOL in the early years, Craigslist and Roommates.com in more recent years) taking advantage of the largely “see no evil” legal protections accorded by laws like the CDA and the DMCA: That is, with only modest simplification, as long as the copyright infringer or defamer is an unrelated third party user of the website, the website operator is immune from liability.

That is the one hand.  The “other hand” view is not exactly “opposite”, but it may be moving to be different. While the national default position remains quite protective of operators’ right to refuse to disclose users’ names and identities, recent state appeals court cases – including a leading early 2000s New Jersey case, Dendrite, the more recent Brodie case in Maryland, and Solers in the District of Columbia  – have chipped away at the efforts of website operators to extend their CDA and DMCA legal immunities to include non-responsibility for identification of anonymous content posters.

But with the exponential increase in lawsuits filed over libel and other torts for online activity, one might expect a continuing degradation of these protections for website operators under the withering onslaught of contributory and/or vicarious liability arguments.  The YouTube-Viacom lawsuit goes on (and on, and on, and on) seemingly tackling these very arguments, albeit in the copyright infringement arena rather than libel.

As media lawyers never tire of writing, though, the internet did not do away with the First Amendment and the law is still the law.  So, as David Johnson wrote last year in his “Digital Media Lawyer Blog”:

The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker’s identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama ) (1958) [Citation omitted]; Talley v. California (1960) [Citation omitted]. On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire (1942) [Citation omitted].

The reality is that, even without success of plaintiffs’ lawyers in breaching these powerful immunity barricades, website operators and publishers always have the prerogative of becoming more aggressive in re-writing – and then enforcing – website terms of use.

We do see this starting to emerge with the increasing sophistication of content-sharing services owned by larger and more traditional media organizations (Hulu is a decent example).  With increasingly locked-down commercial control over content distribution, the industry’s arguments about the effectiveness and sufficiency of self-policing against personal privacy torts and reputation torts and copyright infringement could become more and more credible.

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