Judges Lowering Bar for Libel, Privacy Suits Due to Internet, Lawyers Say

The 9th U.S. Circuit Court of Appeals’ ruling in Barnes v. Yahoo appears to show “retrenching” by judges on third-party liability for defamation, Sager said. The court there said Yahoo was protected by Section 230 of the Communications Decency Act as a publisher, but that it failed to make good on a promise to pull down a “revenge” profile (WID May 12 p3). “It’s a little difficult on its face to reconcile this decision with itself,” Sager said. It could make Internet operators more resistant to voluntarily removing bad content and cause “game-playing by plaintiffs” who sue after they ask for removal, though operators are immune from such action under Section 230. A New York court decision, forcing a county to remove an exonerated drunk-driving suspect’s name from an online “wall of shame,” said online posting causes “limitless and eternal notoriety” and plaintiffs deserve more protections there, she said.

“Republication” online will be a “hot and growing area” in Internet law as well, Sager said. Some courts have interpreted the reposting of something online, years after initial publication and past the statute of limitations, as “starting the clock again” for the plaintiffs to sue, she said, pointing to another New York case involving a football player’s photo, a sports club and its Web site. Slade Metcalf of Hogan & Hartson said not all signs are problematic. In a defamation case concerning the online publicity around an article-turned-book and movie about gangsters, a New York court last month found that “mere linking” to the original 2000 article wasn’t republication -- and that distribution on Amazon’s Kindle was only “further distribution” of the original hardback book, Metcalf said.

The Internet and texting haven’t had much impact on “old-fashioned substantive law” but it’s become “very challenging” for judges to apply the same concepts to new technology, Sack said. “'My space’ used to be what you tried to keep people out of,” he said, but the expectation of privacy and the “ability to invade” has shifted with social networking sites. Referring to online comments, Sack said “the things that are said anonymously by people about other people are incredible” and in stark contrast to the typical letter to the editor.

The distinction between print-oriented libel and speech-oriented slander, which typically carry different evidence and damages thresholds, is currently “the most confused area of the law,” Sack said. “It’s always been arcane but I think it’s so unable to deal with modern communications and so terribly confusing” that the distinctions should “fade away.” Time Inc. Deputy General Counsel Robin Bierstedt said online communication is more akin to “chatty dinner conversation,” and fitting under the less-punitive slander regime, than traditional print publication. “You don’t have to worry about marshaling all the facts,” she said. “You just link to them” and post retractions as necessary. Since everyone potentially is a “public figure” with less expectation of privacy, the Internet offers a “great opportunity to get rid of libel law altogether,” Bierstedt said.

That’s an unlikely outcome, because Internet posting is “very public” and judges will assume that defamatory comments online were seen by someone and caused more than “fleeting and minor damage,” said Sandra Baron, executive director of the Media Law Resource Center. Levine said the now-common refrains from adults that their embarrassing exploits from youth are available permanently online, and keeping them from employment or otherwise harming them, are swaying judges. Such permanence is leading to creative technological solutions, such as software that can set a “self-destruct” mechanism within outgoing e-mail so it disappears after a certain time, said Sager. That raises a host of issues: “People can send things and deny them with impunity.”

So-called libel tourism, in which public figures file suit in jurisdictions with harsh libel and privacy laws due to online availability, may actually be waning, Sager said. About a third of all libel actions filed in England and Ireland, two such jurisdictions, come from U.S. celebrities, she said. But New York and California have passed laws protecting those who are targeted for libel abroad on claims that would not survive scrutiny in U.S. courts, and Congress is considering a federal law (WID Feb 13 p5), Sager said. Geofiltering content out of such jurisdictions is under consideration by some media organizations, though “it just seems like an admission that [an article is] not defensible on grounds of truth.” The good news is the British Parliament has formed a committee to consider revisions to its libel law, she said. Baron said not to celebrate too quickly: Conservative MPs who are likely to form a government next year haven’t shown interest in a revision. -- Greg Piper

Practising Law Institute Notebook …

RIAA suits against accused file-swappers have limited the spread of illicit P2P activity in the U.S. if trends in other countries are taken into account, said Jennifer Pariser, senior vice president of litigation and antipiracy. “Metrics are very hard to pull out” but “programmatically” the enforcement campaign has worked, she said on an intellectual property panel at the seminar. The rate of broadband penetration is outpacing the increase in stateside file-sharing, whereas in countries where the RIAA hasn’t started a broad-scale enforcement campaign, file-sharing is growing faster than broadband penetration. The major-label group is “at least capping the spread” of P2P sharing and making defendants more willing to settle up front, Pariser said. She also discussed the group’s only two completed P2P trials, which resulted in massive damages awards against defendants. They are “a little less perplexing if you actually watch these trials unfold,” as juries learn how many songs were available for sharing on suspects’ hard drives and see how defendants “avoided responsibility, blamed others,” Pariser said. Though the RIAA rarely files suit based on more than a couple dozen music files, it introduces evidence of hundreds more that were available. The $80,000-per-song award in Capitol v. Thomas, resulting in a $1.92 million total, “sounds perhaps shocking” until the “totality of the person’s infringing content” is disclosed. The RIAA makes a “strategic decision” to file suit on a small number of files, because to sue for all available files would result in potential damages in the billions of dollars, she said. Also, “it’s a huge burden to prove ownership” of so many files.

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The 2nd U.S. Circuit Court of Appeals’ ruling that a trademark infringement suit against Google could proceed (WID April 6 p3) baffled Winston & Strawn partner Andrew Bridges, who represented Google and MasterCard in high-profile copyright infringement litigation brought by adult publisher Perfect 10. The lengthy appendix the court attached to its Rescuecom ruling on the use of trademarks in keyword advertising -- explaining why it wasn’t contradicting its own ruling from 1-800 Contacts v. WhenU.com -- looked like “someone’s law review article that wasn’t going to get published,” Bridges said. The 2nd Circuit panel “misdescribes the process,” referring to the sale of keywords as a prohibited “use in commerce” when Google was actually selling advertisements triggered by searchers looking for keywords. “Nobody’s putting a keyword in a bag and going home with it,” he said. The oft-used analogy of different brands sitting next to each other in a grocery-store aisle doesn’t fit keyword advertising, which is more like getting a coupon for Hunt’s ketchup after buying Heinz ketchup -- an innocuous practice. The outstanding question of whether consumers will be confused by such practices hasn’t even been reached, Bridges said. There’s no “easy summary-judgment break point” for accused companies to use, meaning they must go to trial or opt for a settlement. “Every utterance of a word is a trademark use” if the panel’s ruling stands, he said.