Monday, October 21, 2013

Indemnification clauses, SLAPP's, and a weaker Section 230 and DMCA Safe Harbor could all invite trolls

I’ve recently noted that book publishers require authors to indemnify them against legal expenses resulting from lawsuits.  Some web hosting services also have similar requirements of their customers.  There would appear to be a significant difference.  Book publishers (like movie distributors) can be included in liability action against authors or content creators, but generally web hosts and ISP’s (and services like YouTube) are not because of DMCA Safe Harbor (for copyright) and Section 230 (for libel and various other possible torts).  That’s a good thing for web content creators, because, as often noted here, web hosts could never possibly review all content for possible legal risks – a point that almost got buried at the end of 2011 in the “debate” over SOPA.  It’s also important because, without downstream liability protections, we might see copyright trolls and “defamation trolls” go after hosting companies because of their deeper pockets, forcing ordinary bloggers to pay the legal expenses of large companies under indemnification clauses.  No one could take the risk of casually putting up their own content online outside of very structured environments.  My own presence for the past sixteen years would not have been possible.

As first reported here on August 9, some state attorneys general want to gut the Section 230 protections with respect to state criminal laws.  Publicity over that proposal got buried by the Congressional budget and “default” battles recently  I haven't heard yet of any specific bills in Congress. Because the scope would be limited to criminal cases, it doesn’t appear that it would expose web hosts to civil liability risks or attract trolls.  But calls to modify Section 230 continue, much of the talk in the name of protecting minors from cyberbullying, which seems to increase.  I stand on both sides of that issue, since my free speech and self-distribution is so important on the one hand, but also because so much cyberbullying is specifically anti-gay, which seems hard to explain in a time of increasing equality (the military, marriage) in federal legal areas.  Weakening of Section 230 in civil areas could mean an epidemic of SLAPP suits from trolls, unless federal law were strengthened to stop SLAPP’s an penalize litigation filed in bad faith.  There is a good case for tort reform and an expansion of the concept that the “loser pays” all legal expenses in many cases.  

Trolls can be a practical problem in another way.  In many jurisdictions (and whether state or federal jurisdiction applies and how it is determined gets tricky sometimes) the defendant has only twenty days to respond.  Generally service can be made by mail (to a mail service) or proxy, and a party who is out of town an unable to check his or her home or mail receipts frequently could wind up with a default judgment even in a frivolous or SLAPP suit.  

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