By Andrea Anapolsky
Once perceived as just a means for personal expression, blogs have grown into a mainstream form of communication used by business entities, the media, political campaigners and individuals alike. Just last month, Yahoo!® News reported that approximately 40 million blogs have been created, with more than 75,000 blogs added every day. The act of blogging, however, is not exempt from traditional defamation claims, and like any other form of communication, can be both false and defamatory and cause damage to one’s reputation. However, due to the complexity and nature of the Internet, the courts are still feeling their way through two central issues: first, whether to characterize the content publicized in a blog as opinion or fact, and second, who may be held liable for publicizing defamatory statements on a blog. This article briefly reviews trends in case law regarding defamation claims against bloggers, with a specific focus on whether operators and/or owners of network providers who publish or edit and then republish allegedly defamatory statements may be held liable for defamation.
Claims against the Blogger
There is considerable case law addressing whether the creator of the blog’s content, the “blogger” may be held liable for defamation. In 2005, one state court emphasized the significance of the context of the speech at issue and concluded that an unsatisfied customer’s online allegations that the Plaintiff website was “blatantly dishonest” and “crooked” were not defamatory because the customer’s opinion accompanied a series of facts on which the opinion was based. Penn Warranty Corp. v. DiGiovanni, N.Y.S.2d, 2005 WL 2741947 (N.Y. Sup. Ct. 2005). The court reasoned that the web site “presents to others as a personal statement by its maker” and that “when viewed in its full context,” the statements reflect only “personal opinion.” Ibid. In another 2005 case, a state court made a similar impression and characterized the allegedly false and defamatory postings dedicated to the political issues of a Delaware town as a “vehicle for expression of opinions…and not as a source of facts or data upon which a reasonable person would rely.” John Doe I v. Cahill, 884 A.2d 451, 466 (Del. 2005). Perhaps these recent cases reveal a trend by the courts to consider blogs statements of opinion, rather than of fact, and therefore outside the scope of a defamation claim. Ultimately, however, like traditional defamation cases, courts are rendering decisions on a fact-specific, case-by-case basis, and are yet to provide a clear rule.
Claims against the Message Board Operator/Owner of the Network
Due to the complexity and explosive growth of the blogosphere itself, courts are now beginning to address whether the operators/owners of the message board or network could be held liable for posting allegedly defamatory claims by third parties. The leading case on this issue is Zeran v. American Online, Inc., in which the Fourth Circuit provided immunity under section 230(c) of the Communications Decency Act of 1996 (“Section 230(c)”) to AOL for messages posted to a forum board. Zeran v. American Online, Inc. 129 F.3d 327 (4th Cir. 1997). Section 230(c) provides, in relevant part, that “[n]o 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 turn, an “information content provide” is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. §230(f). To date, there are no reported court decisions addressing the issue of whether Section 230 immunity applies to bloggers.
This issue is further complicated by the fact that a blogger can be characterized as both a content provider or publisher and a user of computer interactive services. A blogger is a user of an interactive service network when she or he creates a blog online, but a blogger could also be a provider of an interactive service network if she or he allows third parties to add comments to their blog or a publisher if she or he actively edits the contents on his or her blog.
This confusion as to how to characterize a blogger begs the question: under what circumstances will Section 230 immunity apply? The Ninth Circuit started to answer this question by concluding that Section 230 immunity applies if the blogger proves that the information is still “provided” to them even thought they are selecting information for their blog. (Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)) In Baztel v. Smith, a third party sent an allegedly defamatory email to the manager of the listserve, without knowing that the manager would publish that email. The court created a reasonable person standard and held that Section 230(c) immunes a service provider or a user when “…a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other ‘interactive computer service.” Id. at 1034 (emphasis added)
While Batzel provided a standard by which to evaluate when Section 230 may apply, the court did not address what would happen if the blogger actively edited a third party’s work and then republished it on their blog. In this case, would the blogger be considered the speaker and thus liable for any defamatory speech? Moreover, would actively editing a blog and then republishing it further incriminate the owner of a network by tending to show that the network provider edited the material because they knew the material was defamatory or had reason to be suspicious that some or all of the material was defamatory?
The courts are yet to answer these questions, however, as blogs and other online communication forums continue to vehemently develop, defamation claims are inevitably going to increase. And until the courts catch-up to technology, legal guidance on the issues concerning how to characterize a blogger and when Section 230 immunity applies remains muddy and uncharted.
Andrea Anapolsky is an associate in Weintraub Genshlea Chediak Tobin & Tobin’s Business, Securities and Commercial Transactions section. She represents both public and private companies.