Balkinization

Can Bloggers Be Sued for Libel?

Of course they can.

Andrew Sullivan, relying on a Wired Magazine story about a recent Ninth Circuit decision, engages in a little wishful thinking: "Libel laws may not apply to bloggers," he says hopefully.

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 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."

This does not mean that bloggers are immune from libels they themselves write. It means that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says. The Ninth Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper.

Linking is a more interesting question, still unsettled in the courts. My view is that if a blogger links to defamatory content, the blogger should ordinarily not be held liable for defamation; there might be an exception if the blogger is specifically vouching for the truth of what the blogger is linking to, thus incorporating the claims by reference. (Merely providing a link with approving commentary should not be enough to subject you to liability.) If the blogger redescribes the content in his or her own words, that redescription can be the basis of a libel suit.

Of course, much of what "pundit" bloggers write about concerns public figures, so the public figure would have to show actual malice (reckless disregard for truth or knowledge of falsity) in what the blogger said.

Finally, one of the great things about the blogging community is that people are always checking each other's work. (Indeed, I fully expect I will get some responses checking this post!). And bloggers often print retractions or modifications of previous postings, with links to the previous post so that the reader can see what has been modified. So the blogosphere has a few built in safeguards that other interactive computer services often don't. That doesn't mean that the blogosphere should be fully immune from defamation, and it isn't. But it does mean that this form of journalism serves a very valuable public function; not only do bloggers check each other's work, they can often help print journalists check their facts and do their jobs a little better. That improves the quality of public discourse, which, after all, is one of the purposes of defamation laws.

Posted 7:57 AM by JB [link]