Defamation In The Blogosphere

Last week, the California Supreme Court came out with a ruling that will definitely be added to the scanty jurisprudence that applies to the fledgling medium we call the blogosphere. In a landmark decision on the Barrett v. Rosenthal case, the high court ruled that internet users who post (to websites and discussion groups) material created by others are immune from liability.

To translate loosely to possible scenarios in the blogosphere, blog owners (or publishers), for examples, are not liable for items posted in their blogs’ comments sections. Nor are commenters themselves liable for quoted excerpts from other sources, unless the commenter himself is actively involved in creating the original written piece.

Gleaning from the few reactions from the blogosphere, they appear to be mixed, some favoring the decision while another side frowns on its possible unintended repercussions. The decision appears to be making a clear delineation between traditional media and the new media with the latter represented largely by the blogosphere; and what appears to be with the latter being favored with a more watered-down application of the laws of libel. That is, journalists in traditional media (or MSM) are being held to higher standards as compared to their step cousins in the blogosphere.

Maybe a little backgrounder may help in plumbing the profundity and cultivate a deferential appreciation of the legal facets that all interplay in this latest decision.

A quick visit to this site will provide a primer of basic facts in the understanding of defamation as it applies to the blogosphere.

A basic fact to remember is that slander is spoken defamation, while libel is written defamation, the latter applying to bloggers and commenters in blogs.

Here we speak strictly about what is legal or not, with no references as to whether adjudicated written material contribute to civility in public discourse or promote charitable interaction in the polity.

Thus, of curious interest to bloggers may be some leading examples in California jurisprudence regarding what would be considered libelous or not:

The following are a couple of examples from California cases; note the law may vary from state to state.

Libelous (when false):

• Charging someone with being a communist (in 1959)
• Calling an attorney a "crook"
• Describing a woman as a call girl
• Accusing a minister of unethical conduct
• Accusing a father of violating the confidence of son

Not-libelous:

• Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
• Calling a TV show participant a "local loser," "chicken butt" and "big skank"
• Calling someone a "bitch" or a "son of a bitch"
• Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Lastly, note also that public figures are held to different standards from your typical folks where libel is concerned.

A public figure must show "actual malice" — that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.