Friday, July 03, 2009

Anonymous defamatory comments in forums can draw subpoenas; the rights of "amateur" vs. "establishment" journalists; Post's "Salon" canceled

Toni Bowers, of Tech Republic, an online journal mainly aimed at the I.T. professional audience, has written about the perplexities and uncertainties of the law as they apply to speech on the Internet. This morning, she had a column “Woman sues to have name of anonymous web poster revealed”, in an article here.

The incident occurred in a Kentucky shopping mall, where the poster accused the woman of a crime that most people consider extremely objectionable. So this sounds like defamation. The article goes on to discuss cases where the government has required identification of people who have posted information regarding ongoing criminal investigations in a few communities.

There are several problems going on here. One is shielding hosts of forums and blogs from immunity for what visitors say. That’s related to Section 230 of the 1996 Telecommunications Act. A lot of people don’t like this, but the shield makes the “free entry” system for self-publishing and social networking on the Internet as we know it today possible. (So does the much maligned “safe harbor” provision of the DMCA.)

Electronic Frontier Foundation’s (EFF’s) reference on Section 230 (part of its Legal Guide for Bloggers) is here. The provision reads “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.” However, EFF says “It does not apply to federal criminal law, intellectual property law, and electronic communications privacy law.”

EFF also provides a reference on your rights when blogging anonymously, here. It is possible to be subpoenaed if, when blogging “anonymously”, you defame someone.

EFF also has a page on the reporter’s privilege, and as to whether an “amateur blogger” can qualify to invoke it, here. Many states have shield laws; The First Amendment Center is another source.

This is a world of asymmetry indeed. Presumably, police departments and investigative agencies know how to peruse Facebook, Myspace, forums, YouTube and the like for evidence of crimes – and have procedures for getting technical help from those companies in doing so. Sometimes an individual blogger or journalist will discover clues online (or in the physical world) that have missed investigators. It’s important for a blogger in that position to behave prudently. It’s not always appropriate to post what you find, and it may or may not be appropriate to contact authorities if what you found is truly unusual. I have, since 9/11, contacted authorities about unusual contacts made to me, and at least two of them seem to have been significant.

The tone of the Tech Republic article certainly invokes the notion of an “existential threat” to bloggers, but the material needs to be parsed.

At the other end of the spectrum, consider the egg that a “professional” journalistic organization got on its face this week when it proposed a “salon” for the powerful and privileged to meet each other and interact with Washington Post journalists. The true-confessional story (Friday, July 3) by Howard Kurtz is “Post Co. Cancels Corporate Dinners: Journalistic Boundaries Brought Into Question,” link here. This time, the story speaks for itself. But one quote, from the flier that promotes the dinner to be held at Katharine Weymouth's home, is particularly galling: the dinner "health-care reporting and editorial staff members of The Washington Post . . . an exclusive opportunity to participate in the health-care reform debate among the select few who will actually get it done." Note: "select few"-- for the rest of us, go away.

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