 The Write Reason for Research |
Suing Bloggers
By Andrea Bullard
 |
If the pages of Blogger are any indication, then it appears people have settled quite comfortably on the seemingly lawless frontier that is the blogosphere. In my perusal of the site I found dozens of cuss-riddled pages, photographs of grotesque sunburns, and diary-like entries ranging in content from diatribes about faulty vacuum cleaners to instructions on how to act if a bear starts sniffing out your campground.
And of course, dozens of pages where teenagers pose questions like “Why does everyone hate me?” while offering ill-informed political opinions to passers-by.
The first stop on Blogger’s “quick tour” would have prospective bloggers believe that the content of such web posts is free from scrutiny:
Your blog is whatever you want it to be. There are millions of them in all shapes and sizes and there are no real rules.
Most of the time, this is probably true.
While the radical political musings of 14-year olds will probably not land their authors in court, the cavalier, post-happy attitude that pervades the blogosphere has increasing numbers of bloggers facing legal action.
On May 21, the Wall Street Journal ran an article about blogger Shellee Hale, a Washington State mother of five who is now facing a lawsuit from a New Jersey software company. The company, Too Much Media, LLC designs software to track sales for internet based businesses, and Hale posted questions about a possible security breach to one of its products on an internet forum frequented by members of the adult entertainment industry.
Hale claimed that hackers could use Too Much Media software to expose personal information about the site’s customers.
She said it was not her intent to defame the company. Rather, the questions she posed on the Oprano Forum were meant to gather sources for a story she was working on.
Hale’s case is certainly not unique. According to the Wall Street Journal, in 2007, 106 civil law suits were filed against bloggers and others in social networks online, up from a mere 12 in 2003:
Bloggers are increasingly getting sued or threatened with legal action for everything from defamation to invasion of privacy to copyright infringement.
Many lawsuits are thrown out of court or settled before trial, but not before causing headaches for the accused. Though the likelihood of a plaintiff winning a lawsuit is not high, "you could go bankrupt" just from defending against them, says Miriam Wugmeister, a partner at Morrison & Foerster LLP and a privacy and data-security law expert.
Hale contends that the same laws that allow journalists to protect their sources in a court of law apply to her case. Hale addressed the lawsuit on her site “Shellee Hale: A Motivational Blog,” and claimed that anyone involved in disseminating information should be considered part of the media:
I truly believe in the shared media space of the blogging world and journalism online and the importance of a clarification of the laws to meet with the current technological means of delivery of news and information.
But does a casual blogger really belong in the same category as a professional journalist?
Based on legal precedent on the matter--no.
In 2005, Apple sued 19-year-old blogger Nick Ciarelli, whose website, Think Secret, leaked information about new Apple products before the company unveiled them. Both Ciarelli and his lawyer argued that he was protected under the same First Amendment clauses that cover journalists. Ciarelli made his case to his student newspaper, The Harvard Crimson in an e-mail:
I employ the same legal news-gathering practices used by any other journalists. I talk to sources of information, investigate tips, follow up on leads, and corroborate details. I believe these practices are reflected in Think Secret’s track record.
But the three year legal battle ended in Steve Jobs’ favor and Ciarelli had to shut down Think Secret.
Somewhat more recently, writer Jeffrey Rosen fell under media scrutiny for his article questioning the temperament and intellectual heft of Supreme Court Justice Nominee Sonya Sotomayor (“The Case Against Sotomayor”) that appeared May 4 on the New Republic website. "It was a short Web piece," Rosen told NPR. "I basically thought of it as a blog entry." The “short” article was 1,000 words long and included testimonies from four unnamed sources (former circuit judges who had worked with Sotomayor), whom Rosen said he swore to protect in exchange for their honest opinions about her qualifications:
Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue."
Nobody’s going to sue Rosen, but somebody might as well. The response to his piece was swift and angry; so much so that four days after it ran, Rosen wrote another article defending himself in the face of the “energetic response in the blogosphere.” (Punch Jeffry Rosen into Google News and you’ll turn up pages of articles by other pundits chastising him for his “ill-informed” article.)
Rosen said the headline, which he claimed he didn’t see until the story was printed, framed the article as an attack when its purpose was to examine Sotomayor’s qualifications before she became the official nominee.
Rosen later told NPR he will blog no more.
Former lawyer Glenn Greenwald, who tried several cases in front of Sotomayor, condemned Rosen in an article on salon/com for his careless journalism and for his intimation that the mechanics of blogging were somehow responsible for it.
Greenwald also used Rosen’s situation to point out that the blogosphere is useful both as a means of quickly debunking false claims and as a barometer for public response to current events:
Even as few as five years ago the Jeffrey Rosens and TNRs of the world could do things like this, and routinely did them, without any meaningful response or check of any kind. Is it really hard to see why establishment media figures harbor such disdain for “bloggers” and blame them for most of their woes? If you enjoyed a monopoly on controlling political discourse and were free to spout the most irresponsible claims without any consequences wouldn’t you resent whatever it was or whoever it was that put an end to that?
