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Bloggers Beware: Libel and Invasion of Privacy

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Writing the truth, the whole truth and nothing but the truth can keep you out of trouble — both in your personal and public life — only to a point. While truth is the defense for libel and slander, it is NOT a defense for invasion of privacy and the Internet is the new frontier where not everything is clearly defined.

And even if you consider your blog a diary, that doesn't keep you safe from character defamation charges – and the cost could be as much as 23 years of your life.

When the Internet began to gain public popularity, the issue of libel and slander was fuzzy. Radio and television broadcasts, if defamatory, are considered slander under California Civil Code Sec. 46. While television is not specifically mentioned in the law, the section refers to "orally, uttered, and also communications by radio or any mechanical or other means" and this was later taken to cover television.

Why is this important? Because for slander the plaintiff must prove special damages. Slander is considered more ephemeral than libel. In the case of libel, damages are presumed because it is more permanent or "writing, printing, picture, effigy, or other fixed representation to the eye."

In November of 2003, the Sixth District Court of Appeal ruled that Internet postings were considered libel, not slander, under California law. According to an article that appeared in the Metropolitan News-Enterprise on 14 November 2003, in the case of Varian Medical Systems, Inc, v. Delfino, H024214 "two former employees [of Varian Associates, Inc.] posted a series of messages on an Internet bulletin board devoted to the company's publicly traded stock. The messages maligned the company's products and suggested that the two executives were incompetent and dishonest and that one of them, a woman, might have obtained her position by having sex with a supervisor."

A jury found them guilty of libel, invasion of privacy, breach of contract and conspiracy, according to David Watson's article. They were further fined $425,000 for general damages and $350,000 in punitive damages.

More recently, in Durango, as reported by Shane Benjamin, writing for the Durango Herald, a "Fort Lewis College honors graduate was sentenced to a total of 23 years in prison …after being found guilty of 26 felonies, including criminal libel."

According to the article, the 38-year-old Davis Temple Stephenson:

…instilled fear and terror into his victims' lives by spreading lies over the Internet, creating fake posters and sending phony letters. He usually targeted anyone in a position of authority: jail guards, a police officer, a landlord, a college newspaper editor and several Fort Lewis College professors.

One example of how he victimized was by creating a Web site in a professor's name, identifying her as a sexual deviant and asking anyone reading to come rape her. He then posted the professor's home address.

He also sent a fake obituary to an Alaskan newspaper announcing that a jail guard had died of AIDS. The guard was actually alive and well.

Stephenson initially claimed he thought the First Amendment protected his actions.

More recently, the WashingtonPost.com was embarrassed when its new right-wing blogger, Ben Domenech, was forced to resign. His crime? Plagiarism, according to Liz Halloran's 4 April 2006 article in U.S. News & World Report. Halloran wrote that although no claims were made against Domenech while he was at the Post, the questions raised were about libel.

Rules for libel apply to online content just the same as if the words were printed on paper. But in at least two significant areas, the unique nature and worldwide reach of the Internet are testing other legal precedents established for hard copy published in the United States.

When are media companies culpable for libel claims involving online material they publish from contractors or freelancers? And can foreign courts hear defamation cases involving online material published by U.S.-based companies?

Think it hasn’t happened? A former UN official was living in Kenya when the Post filed online stories "saying that he had been investigated from sexual harassment, financial improprieties and nepotism". When the man then moved to Canada, he filed a defamation claim in Canada. Canada decided there was no great connection between this man and his new home and that "he suffered no significant damage to his reputation in Canada."

The question remains, if you’re writing in one country online are you subject to another country’s laws. Or if your host is in a different country, which country’s laws are you writing under and will your country enforce a judgment against you?

On a smaller scale, a Wisconsin Web site, FullofBologna.com, was temporarily shut down by a judge in a case that involved anonymous messages on a bulletin board on the site. She [Winnebago County Clerk of Courts Diane Fremgen] claims those messages included libelous, sexually explicit comments.

The lawsuit is against the Dennis Payne who operates the site and "the anonymous participant who went by the pseudonym, Mr. Imperfect."

Also on the subject of sex and government workers, according to Associated Press writer Pete Yost, a lawsuit filed by Sen. Mike DeWine’s former counsel to the Senate Judiciary Committee, Robert Steinbuch, alleges that former Senate aide Jessica Cutler invaded his privacy in 2004 by publishing facts about her sexual relationship with him. This case may hinge on whether the case was filed too late (over a year after the material was online).

In 2002, a retired teacher won a libel suit against a former student for comments posted on the Friends Reunited Web site. The comments weren't sexual in nature.

Freedom of speech, the public diary-style of some blogs and the publication of truth isn’t enough to protect bloggers from lawsuits of libel and invasion of privacy and those charges could come from readers in nations that are governed by different laws.

So writer beware. You don’t know who or where your readers are.

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About Murasaki

  • You’re wrong about the case. There’s more to this than meets the eye. Do your DD before you post.

  • The main reason for bringing up the Varian v. Delfino case was that while the focus of the case wasn’t about libel or slander, the decision was made in California courts that Internet postings were considered libel.

    Even with the appeal, the decision to consider Internet postings as libel has not changed.

    The SLAPP Statute (Strategic Lawsuit Against Public Participation) does not protect one against lawsuits of defamation of character and libel.

  • Oh great, now I have something new to worry about when blogging. First, it was “be careful what you say because your employer or potential employer may cut your ears off and hang them from his (or her) rear-view mirror.

    Now, it’s if you say something too nasty, they’ll take away other parts of your anatomy.

    Bring back anarchy, chaos, freedom of stupidity.

    Thanks for the article. Now if I only knew what to do with it.

    And That’s The Truth.

  • Bill Silverstein

    Purple Tigress,
    The decision you speak of was unanimously overturned when the Varian Medical Systems v. Delfino case went to the California Supreme Court. There is no law in California that decides whether or not words on the Internet if found to be defamatory are then libel or slander.

  • I never said there was a law in California that decided whether or not words on the Internet if found to be defamatory are then libel as opposed to slander.

    As part of consideration of the Varian v. Delfino case, according to the article I have cited, the decision was made by the court to consider Internet postings to be libel if found defamatory.

    The issue had originally been if the words were transmitted, or “communications by radio or any mechanical or other means,” then those words would be considered slander and not libel.

    The decision you are speaking about vacated the judgment because according to the San Francisco Daily Journal (Friday, 4 March 2005), their case went to trial before a critical appeal was decided.

    But as I said, the main reason I mentions this was because a decision was made in California to consider Internet postings as libel. Please read the quoted passages by the judge in that case.

    The other theme is the postings about sexual relations which would be considered public disclosure of private and embarrassing facts, one of the four categories of invasion of privacy. If untrue, then this would also be considered libel.

  • I should add the Varian case can be tried again after the SLAPP decision is made.

  • Bill Silverstein

    Purple Tigress,
    Varian Medical Systems v. Delfino is law at least in California. According to the Santa Clara County docket the case was closed on April 16, 2006. No more wasting taxpayer dollars.

  • A case isn’t law. So I’m not sure if you mean the SLAPP was affirmed or what. Or if the case I was citing was dismissed or not pursued. You are not clear on this.

    And the decision to see Internet postings as libel was part of that case according to the article cited. This is the only reason for the case to be included in the article.

    Just as the US Supreme Court decision on Ernesto Miranda gave us what is known as the Miranda Warning and yet didn’t mean that Ernesto Miranda was found innocent. The actual finding about Miranda’s guilt isn’t really the point of studying that case as if the decision that came from that case–that suspects must be read their rights.

    I’ve done several searches but haven’t found the source you quote but will look more later. The decision you originally pointed out only said that the ruling was overturned because of judicial impropriety–the decision on the SLAPP needed to preceded the decision on libel and invasion of privacy. This has no bearing on the issue I am using it for.

    Yet as the real point of this article was that Internet postings were confirmed as libel and not slander, that is really a different article.

  • Another Delfino lie. Delfino is known for making posts under other people’s names. Delfino is known for lying and being deceptive.

    I am all for free speech, as you can see from my site at barbieslapp.com. Delfino cross’s the line into stalking and harassment.

    Tigress: I actually gave the cite of the Delfino case so they could cite it as a basis for a continuance of trial because she was given a hearing date on a SLAPP motion which was after the trial date.

  • Frank Watson, M.D.

    I was impressed to read that after beating Varian Medical Systems, Varian Semiconductor Equipment Associates, Susan Felch and George Zdasiuk in court, Doctor’s Delfino and Day have written a book. Their book is entitled, Cancer: We Live and Die by Radiation (2006c; ISBN 097254112). The reviews are impressive too.

  • or you can just blog from a far away place like Liberia in east africa.

  • I’m impressed how this article which has a bare mention of Delfino and Varian should become mostly about Delfino and Varian. The only reason this case was noted was because of the ruling on what was libel versus slander.

    Also distance doesn’t always make things easier. France sued Yahoo! Yahoo lost in France, won in America, but ultimately took most of the items in question off their Web site.

  • Lena

    My name is Lena and ive been screwed around by workers compensation and have been accused for fraud by my employer which has been dropped. But my supervisor has been telling people at my work that ive have been frauding the company.Do you think that i can charge him with slander?

  • Lena:

    I am not a lawyer. I do not know why you were denied workers compensation.

    When you say your supervisor has been telling people at your work something that is false, then does this mean you still work there?

    If so, I’m not clear what the workers comp was about. In any case, there are several things that come under the legal definition of fraud and there is opinion which is a freedom guaranteed by the First Amendment and there is slander. Also, workers comp has different legal definitions in different states. You would have to seek legal advice about slander relating to an alleged fraudulent activity.

  • I am particularly interested in SLAPP laws as I am facing a suit for Slander in Florida. See the details at the website. Links to the articles printed on the matter are also available on the website.

    I had never heard of SLAPP before this. I am absolutely shocked at how this can happen.

  • Nancy Cooper

    God bless Michelangelo Delfino and Mary E. Day, I simply adore them!

  • Len MacPhee

    The former Internet posters, Mr. Delfino and Ms. Day are today the authors of a highly acclaimed series of law books about capital punishment in the United States. The first two books, Death Penalty USA 2003 – 2004 and Death Penalty USA 2005 – 2006, have been released by MoBeta Publishing and are available online at Amazon, Barnes & Noble, etc. I suggest that anyone interested in recent capital punishment cases take a look at these books. Very well done.

  • E F Orwell

    The UK Libel Laws have taken another step into the abyss and could signal the end of Free Speech. A UK based media club, The Groucho Club which is owned by a billion pound corporation ‘Graphite Capital’ have launched a one of kind High Court action for a pre publishing test case for libel against Tyrone D Murphy, the author of an exposé book about the club. The book has not been completed yet and the case seems to be based on what could be written and not what has been written.

    The writer is defending this action in person as the costs are astronomical and I am supporting this writer and his cause. All writers and journalists should also support him as he is in the forefront of the battle for free speech.

    What do you make of this type of case where a legal action can be taken against a writer of a book that has not been written yet? This action is certainly a threat against all writers and journalists

    http://www.g-book.co.uk is the book web site