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.