[LINK] War of the Words

Fri, 7 Sep 2001 12:03:38 +1000

>Date: Fri, 07 Sep 2001 11:02:04 +1000
>From: Stewart Fist <fist@ozemail.com.au>
>Reply-To: fist@ozemail.com.au
>Organization: Independent writer and columnist
>X-Accept-Language: en,pdf
>To: me@Tony-Barry.emu.id.au
>Subject: Maybe of link interest if not already in circulation
>
>  >From eastbayexpress.com
>
>Originally published by East Bay Express September 5, 2001
>
>
>{ http://www.eastbayexpress.com/issues/2001-09-05/cityside.html }
>
>War of the Words
>
>An Oakland judge makes a precedent-setting ruling in an Internet libel case
>
>By Kara Platoni
>
>Let's say there's this guy who really gets under your skin; let's call him
>Mr. Smith. Let's say you dislike Mr. Smith so much that you want to
>torpedo his career by spreading untrue and defamatory rumors about him --
>that he cheats on his taxes, say, or sniffs rubber cement. Let's say you
>write these accusations up and send them to a newspaper, which reprints
>your allegations without bothering to fact-check them. What happens when
>Mr. Smith picks up the paper? Most likely, both you and the paper will be
>slapped with a libel suit, and most likely, Mr. Smith will win. But what
>if instead of sending your letter to the newspaper, you e-mailed it to a
>friend who posted it to an Internet newsgroup? Can Mr. Smith still sue
>both of you? An Oakland judge's answer might surprise you.
>
>Last month, California Supreme Court judge James A. Richman heard what may
>be the nation's first case specifically dealing with the issue of
>reposting libelous material on the Internet. In a 27-page ruling, Richman
>wrote that while someone who creates defamatory material can be sued for
>damages, someone who merely repeats it on the Internet is protected by
>federal law, specifically a 1996 statute called the Communications Decency
>Act (CDA). Originally intended to protect Internet service providers
>(ISPs) such as Yahoo! or AOL from being held responsible for libelous
>matter generated in chat rooms and on bulletin boards, section 230 of the
>CDA states that "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." In other words, the ISP is not
>responsible for the bad behavior of its subscribers.
>
>The Oakland case, formally known as Barrett v. Clark, is the first to
>apply section 230's protections to an individual person, rather than a
>corporate entity like an ISP. Richman's decision will doubtless have major
>repercussions for Internet users; after all, it's a medium where
>communication relies heavily upon quoting and reposting the comments of
>others, and where much material is posted anonymously or pseudonymously.
>While civil liberties activists are cheering the ruling as a clear victory
>for free speech in cyberspace, critics fear that allowing people to repost
>potentially libelous material on the Internet with impunity will spur
>reckless behavior.
>
>------------------------------------------------------------------------
>
>Barrett v. Clark didn't start off sounding much like a free-speech case,
>and it didn't begin in Oakland at all. The suit was filed in November 2000
>by retired psychiatrist Dr. Stephen Barrett and Dr. Terry Polevoy
>(residents of Pennsylvania and Canada, respectively), both of whom have
>made careers of debunking what they claim is junk science. Barrett runs
>not one but six Web sites devoted to consumer and medical fraud, including
>one called Quackbusters.com; he has questioned the validity of everything
>from vitamins to the paranormal to the teachings of Deepak Chopra. Polevoy
>is a medical doctor and also runs a Web site exposing health frauds.
>
>Barrett and Polevoy seem to have found an archrival in Hulda Clark, a
>woman who has written a book claiming that all cancers are caused by an
>intestinal fluke that can be removed with the help of herbal medicine and
>self-administered low-voltage shocks from a battery-operated "zapper"
>(both of which she is conveniently willing to sell you). Clark operates a
>clinic in Tijuana, Mexico, and also sells her products and books over the
>Internet.
>
>What began as a war of the words between the quackbuster camp and Clark's
>supporters escalated after Clark allegedly hired a man named Tim Bolen to
>handle her public relations. According to Barrett and Polevoy's suit,
>Bolen began circulating a letter on the Internet that, among other
>unflattering claims against the quackbusters, accused Polevoy of stalking
>a radio reporter and preventing her from airing a show about alternative
>medicine. The letter also asked people to send letters of complaint about
>Polevoy to the Ontario College of Physicians and Surgeons.
>
>Somewhere along the line, a San Diego woman named Ilena Rosenthal, who
>runs an Internet-based support group for women who have medical problems
>resulting from breast implants, came across Bolen's letter and reposted it
>to two alternative-medicine newsgroups. Barrett contacted her, told her
>the letter was libelous, and threatened suit if she didn't remove it.
>Rosenthal merely reposted Bolen's letter as well as Barrett's threat. When
>Barrett and Polevoy finally filed their suit against Clark and Bolen,
>Rosenthal was included as a defendant as well. In fact, because the
>plaintiffs' attorneys were unable to track down either Clark or Bolen to
>serve them with the suit, Rosenthal became the only defendant available
>for trial. (Currently, Barrett also has three other libel suits in
>progress in different cities.)
>
>------------------------------------------------------------------------
>
>Enter Oakland attorney Mark Goldowitz of the California Anti-SLAPP
>Project. A SLAPP suit -- or a Strategic Lawsuit Against Public
>Participation -- is filed to drain the funds and energy of a political
>opponent through litigation, and Goldowitz believed that Rosenthal, as a
>proponent of alternative medicine, was being "SLAPPed" by the
>quackbusters. He filed a motion to strike her from the suit, arguing that
>Rosenthal should not be held accountable for libelous material that she
>had not written, but merely reposted.
>
>While Judge Richman's ruling barely mentioned the SLAPP charges, he agreed
>with Goldowitz about Rosenthal's immunity. Trial court judges rarely issue
>lengthy written opinions, yet Richman's ruling dismissing Rosenthal from
>the suit meticulously explains his reasoning. "It is undisputed that
>Rosenthal did not 'create' or 'develop' the information in defendant
>Bolen's piece," he wrote. "Thus, as a user of an interactive computer
>service, that is, a newsgroup, Rosenthal is not the publisher or speaker
>of Bolen's piece. Thus, she cannot be civilly liable for posting it on the
>Internet. She is immune."
>
>Perhaps more importantly, Richman made it clear that he believes the
>courts should hold Internet communications to a different standard than
>printed media. Richman's ruling cites a decision made earlier this year in
>the case of Global Telemedia International v. Doe, in which critical
>comments made in an Internet chat room were held to be "non-actionable
>opinion and rhetoric" because they were "part of an on-going free-wheeling
>and highly animated exchange" on the Internet where the "postings are full
>of hyperbole, invective, short-hand phrases and language not generally
>found in fact-based documents." In other words, the language people use on
>the Internet is brasher than what they use elsewhere and therefore
>criticisms and insults posted on the Internet should be held to a looser
>standard.
>
>Groups like the San Francisco-based Electronic Frontier Foundation (EFF),
>which advocates for free speech in the online world, applauded Richman's
>ruling, saying that it recognizes essential protections established in the
>CDA.
>
>"Offending someone is really not completely about what one person is
>saying to another person -- it's a clash of expectations or cultures or
>communities," says EFF attorney Lee Tien. "Defamation law to a large
>extent is about which community's norms should rule. We recognize that
>there has come to be a distinctive style of communication on the Internet
>and its most public places, like Usenet and Yahoo! bulletin boards. Should
>we be able to use the social norms of the pages of the Wall Street Journal
>to judge the speech of posters on [investment bulletin-board site] Raging
>Bull?"
>
>Not only do people communicate differently on the Internet, they also do
>it more quickly. According to Goldowitz, the ability to respond quickly to
>false claims makes Internet libel different from print libel. "It's not
>like the defamation is out there unanswered for weeks or months or days.
>You can get a response up in an hour or two; you can say, 'This is wrong;
>here are the documents,'" says Goldowitz.
>
>But Barrett says it's not nearly that easy. "Do you know what it is to
>respond on the Internet?" he asks exasperatedly. "First you have to find
>the [libelous] messages and you have to find a way to monitor every day if
>you want to get them all. They also [travel] by e-mail and there's no way
>to trace that. There's also no way to be sure that the people who read the
>first message are going to read the second. People don't stay on lists."
>He also points out that battles in the court of public opinion are rarely
>winnable. "Who wants to get involved in a battle over whether [Polevoy] is
>a stalker?" Barrett asks. "People shouldn't have to respond to libel by
>getting into a public debate."
>
>------------------------------------------------------------------------
>
>Barrett and other critics argue that Richman's interpretation of section
>230 is overly broad. "With all due respect to the court, it was not the
>right decision," says Christopher Grell, the Oakland attorney for the
>plaintiffs. "I think the CDA wanted to allow the free expression of ideas
>but not allow someone to harass an individual or company by protecting
>them from [liability for] things that they do intentionally." They worry
>that if the ruling stands, unscrupulous people will take advantage of the
>immunities given to reposters. "It would end all libel protection on the
>Internet, absolutely, totally, 100 percent," says Barrett. "The judge's
>ruling would permit a person to publish something anonymously or under a
>false name and then quote themselves. What the judge said is that we have
>a right to go after the original libeler, but that may not be a real
>person, or they may be in a foreign country; they may be somebody we could
>never find. There are all kinds of mischievous possibilities."
>
>Grell plans to appeal the case all the way up to the US Supreme Court if
>necessary. "It's an attempt to put some decency back into the
>Communications Decency Act," he says. (Although Rosenthal has been
>dismissed from Barrett v. Clark, the suit will still go on against the
>remaining defendants whenever they turn up.) Grell has filed a motion for
>consideration to reverse Richman's decision, as well as a notice of appeal
>in case the judge doesn't reconsider.
>
>Rosenthal's attorneys say they welcome further legal challenges because
>they're confident their victory will be reaffirmed by a higher appellate
>court; they think that concerns about the misapplication of Richman's
>ruling are vastly overstated. "Whenever society decides that certain kinds
>of discussions should be constitutionally protected, there is always the
>potential danger that there might be some uses of that right of expression
>that we might not agree with or might cause damage," says Goldowitz. "But
>in the big picture, the frequency of that is going to be much, much, much
>smaller than the number of situations where this will appropriately expand
>the freedom of discussion on the Internet."
>
>
>{ http://www.eastbayexpress.com/issues/2001-09-05/cityside.html }
>
>
>To write a letter to the editor:
>http://www.eastbayexpress.com/letters2?issuedate=2001-09-05&headline=War%20of%20
>the%20Words
>
>To write the author:
>kara.platoni@eastbayexpress.com
>
>
>--
>Stewart Fist - writer and columnist
>See http://www.australianIT.com.au/opinion/crossroads/
>        http://www.abc.net.au/http/sfist/         (some archives)
>        http://www.electric-words.com              (main archives)
>70 Middle Harbour Road, Lindfield, 2070,   N.S.W,   Australia
>Phone +61 2 9416 7458                        Fax  +61 2 9416 4582

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