Wednesday, November 22, 2006

Licence to (shovel) Swill

Many of the Net's more prominent authors and publishers are cheering Monday's decision by the California Supreme Court saying that Federal protections on free speech shield Internet providers from liability for libelous messages posted on their sites.

I'm not so sure it's a good idea -- mainly because of the particulars of the case.

The Alameda County plaintiffs, physicians Stephen Barrett and Terry Polevoy, claimed they were libeled by hundreds of messages that Ilena Rosenthal, an alternative health care advocate, got from other sources and posted in online news groups from 1999 to 2001.

The general thrust of the plaintiffs' argument was that similar standards as used for print and conventional electronic media should be applied to the Internets; that is, these entities can be sued for publishing libelous statements. The court correctly, in my opinion, recognized the obvious difference between these media forms -- the relative amount of control that exists over author and content prior to publication.

However, they made one more judgment whose implications are much more problematic (emphasis mine).

One message accused Polevoy of stalking a radio producer. The physician said he had told Rosenthal the accusation was false before she posted it. But the court said she was immune from being sued because she had merely passed along messages she hadn't written, just as an Internet provider displays messages from others.

My issue: their doing so extended the protections of conventional media to those who are not bound or compelled to follow the practices of conventional media.

The problem is that, in 1996, when the law was written, mass publication and content generation were much more intimately connected. Back then, getting anything published beyond telephone-pole flyers or Podunk Register levels meant going through one of the media companies that could afford a global communications infrastructure. What it also did was ensure that, through a battery of reporters, editors, content committees, and lawyers, nothing that couldn't be fact-checked six ways from Sunday or was too hateful made it through -- partially out of ethical concerns, but primarily because anything that turned people off to watching or advertising with them turned millions of dollars in printing presses and transmitters from revenue-generating into revenue-sucking. In addition, the sheer cost of producing the media made it certain that only the most newsworthy (read, "what will sell ads or garner viewers") stories ever reached precious newsprint or radio waves.

Now, however, there's no such linkage. I can literally write whatever I want, check it as I see fit, and push a button -- and in seconds, it is accessible to literally ANYONE with a Web connection from Afghanistan to Zimbabwe at little or no cost to either of us. And, thanks to the California Supreme Court, I'm immune from lawsuits, even if I publish something that I KNOW is defamatory -- a privilege that not even the most venerable of old-media enjoys.

Fellow California blogger Boi From Troy makes, with some validity, the point that the speed at which Internets content can be updated should play into this -- presumably under the argument that, as in Rathergate, information that is false can be (and quite often is) immediately detected and countered publicly -- thus, theoretically, lessening its impact.

However, I would argue, in regards to individual bloggers, "So what?"

Somehow, the threat of being delinked or denounced just doesn't quite have the same force as being censured for violation of professional ethics, fired from my job, completely destroying the credibility of a news outlet, and costing a company millions of dollars in legal fees, lost advertising revenue, and bad publicity -- such as would happen (and has happened) to a journalist or media group who knowingly or even inadvertently published false information or failed to verify its sources. Plus, as people like Mike Rogers at Blogactive has shown, no matter how dubious your information or your past record with handling it, if you play a tune to which they wish to dance, people will continue to shovel you cash and advertisements.

In my opinion, this could be handled very simply by an adoption of a Federal law with three rules:

1. Providers (Internet, print, or otherwise) are not liable for what is posted by individuals who are not their employees, contractors, or vendors.

2. All libel and slander cases filed will proceed to trial and be ineligible for summary dismissal unless all sources cited by the defense as justification for making the statement in question are made public information.

3. The standard for libel and slander will include not only malicious intent to harm, but failure to verify information, either willfully or through negligence.

In short, you are perfectly able to make whatever anonymous accusations you like; however, if a libel suit is filed, you are going to trial unless you make your sources public -- and you will ultimately have to convince a jury as to why you didn't do your fact-checking or ignored the facts that came up.

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