Sunday, December 17, 2006

California Supreme Court on web publishing immunity; media perils

Before starting, note that the Dec 25 2006 Christmas Day issue of Time Magazine named its person of the year as the "Us" or "Me", the Internet user and publisher. It's upbeat, and yet we have to watch the legal and social storm fronts and clouds, as in the rest of this posting.

Nov 21, 2006, Bloomberg, “Protection for Web Publishers”, reprinted in The New York Times: The California Supreme Court ruled “in a unanimous decision, those claiming defamation could sue only the original source of the comments, not publishers or distributors, even if the distributor was an individual. Internet users are protected by the same 1996 Communications Decency Act provision (less known than what was struck down)that grants immunity against defamation claims to publishers in most circumstances.” Link is this. However, critics have claimed that, if amateurs want to be regarded as legitimate journalists, they have to behave and be held accountable like journalists. The California ruling suggests that plaintiffs will not be able to state-shop to end-around federal law (the "good" provision of the otherwise infamous CDA). The ruling also maintains a "safe harbor" concept for ISPs and chat hosting comapnies that the do not necessarily have to maintain logs of every posting (although there are new rules for employers keeping track of employee emails, so that could bemuse the issue).

All of this brings up the subject of the liability risks of bloggers and website operators. There have been some lawsuits, both regarding corporate blogs and sometimes individual blogs. For example, Target filed as suit regarding compromise of its confidentiality policy, story here:

Nancy Flynn discusses the liability issues in her AMA book “Blog Rules”. The greatest risk could occur when blogs target individual people or companies with false defamatory statements, or invade their privacy in a legally relevant way. This discussion occurs in the context of people being fired for material in their personal blogs. Of course, in comparison to the number of blogs and personal sites, the number of litigation incidents is very low. But it does raise the question of media perils (or media risk) insurance for amateur or non-established writers.

I was a member of the National Writers Union for several years, mainly when I lived in Minneapolis, and in 2000 NWU was able to offer a six-month media perils policy for its members for reasonable cost. In the spring of 2001 it was not able to renew, and another company refused to cover many of its members. The application form did ask about third party oversight, but it seemed (at least in my case), that the main problem was material of “controversial nature”. At least, so said a bald-faced email from the company’s underwriter to me. For a long time, NWU could not offer a group media risks policy that was acceptable to most of its members. But it appears that in 2006 it did offer a publishing liability policy, in combination with group health insurance; link here.

There is a good disussion of media perils (media risks) insurance as more commonly acquired by larger publishing entities, here.

It is common for property and casualty insurance companies to offer umbrella policies, and a few of them have said that they will cover liability for personal blogs when they have been allowed to review the blogs. Conventional umbrella policies generally are not available for “professional entertainers” and it is not clear what this would mean with respect to a blogger who is visible to the public but is still an “amateur” and not able to earn a living from the blog. I think, however, that the increased automobile liability coverage often available with umbrella policies ought to be available separately from the “umbrella” concept, to avoid complicating it with intellectual property issues that a really totally unrelated.

The concern over "controversial" speech offended me. Amateur speech needs to be "controversial" to be worth uttering. Otherwise, we are left only with covering "professional" writing usually to communicate the messages of others.

The problem for liability insurance companies with amateur blogs and websites is rather obvious: they have no reasonable way (based on experience) to make an actuarial calculation of the risk and appropriate premium. There are too many issues that are subtle and unpredictable. We simply have not had global “free entry” self-publishing long enough to have a reliable handle on the risks, although it seems low in comparison to the exposure of established media companies and professional journalists, who have measurable track records, trained personnel, and lawyers to look at accountability. Amateurs do not have deep pockets to make attractive targets, and they may still have the reach, growing audience, and ability to influence events (especially political outcomes, like the 2006 mid term Congressional elections) out of proportion to their “means.” Insurance companies seem to look more comfortable with customers already having deep pockets, but, moreover, a social or business heirarchy to enforce accountability, at the expense of spontaneity.

What seems at stake, as with other issues (like COPA) is the richness of our social and political debates. Unpaid bloggers can point out things that advocacy or lobbying groups, paid to represent specific constituencies, cannot be allowed to say. In good high school or college social studies courses, we are supposed to learn to understand controversial events objectively. Yet, the way, before the Internet, that we conducted our debates was anything but objective. We paid people to represent our interests, and were forced to stay in the same boats as other groups, in political coalitions. Policy became a matter of political expediency, not understanding. The Internet can change that. But a lot of turf can be threatened, too.

Liability insurance companies would certainly go along with the idea that school systems should start providing teenagers education in concepts like copyright and libel, given the explosion of social networking sites and the inexperience of new speakers. Such concepts ought to become part of "standards of learning" testing in English. (The concepts are taught in high school journalism classes, often in conjunction with yearbook preparation.)

Eventually, as we uncover more risks associated with the Web (as we know from the anxious behavior or employers who feel that they need to peek at and maybe evaluate social networking sites and blogs of applicants as if these pieces of writing and pictures were “clothing”), discussions about insurance and maybe even bonding are likely to increase, despite the favorable California ruling above. Many writers do not know that conventional publishers usually require the them (the writers) to idemnify publishers against claims, and, similarly, ISP's often have clauses in their AUP's requiring customer indemnification. For obvious business reasons, these clauses seem to be rarely enforced, but the fact that they exist at all is troubling. (ISP's do have "safe harbor" under well-documented (and "controversial") take-down provisions for copyright claims, under the DMCA). Of course, this idea occurs in other area of life, even for apartment and car renters.

Related posting: COPA: The right to publish

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