By Chris Ingle, chairman Rose Law Group Cyber-Law Department
Related: Arizona looks at cyber harassment bill, but will it trample free speech, business rights?
A judge for the D.C. Superior Court last week refused to let the Competitive Enterprise Institute (CEI) and conservative news site National Review off the hook from a defamation lawsuit brought by climatologist Michael Mann, saying the sites’ musings about the accuracy of Mann’s research may not be protected by the First Amendment, Think Progress.com reported.
Specifically, Mann alleged that CEI published — and then National Review republished — an article calling Mann “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”
“The allegedly defamatory aspect of this sentence is the statement that plaintiff ‘molested and tortured data,’ not the rhetorically hyperbolic comparison to convicted child molester Jerry Sandusky,” Judge Frederick H. Weisberg wrote.
Cases like this demonstrate why people should think twice before they post something online. The First Amendment provides very robust protection. It gives you the right to say almost anything you want, about anyone, at any time. But the key word in that sentence is “almost.” The First Amendment does not protect all speech; there are exceptions. For example, you cannot yell “Fire!” in a crowded movie theater, or tell state secrets to a foreign government. In this case, the judge correctly acknowledged that defamatory speech is not protected by the First Amendment.
It is often difficult to determine whether speech would be considered legally defamatory. Laws change from state to state, from nation to nation, and sometimes even from year to year. What may be defamatory in one place may not necessarily be defamatory in another place, or at another time, or even in front of a different judge. To make things more complicated, some laws focus on how much due diligence the speaker performed before making a statement, and the standards can change depending on whether a person is an everyday individual, a famous person, a politician, or a government employee. Finally, it is important to realize that even if you know every single defamation law in effect where you live, you might get sued somewhere else entirely. A victim of defamation can argue that you should be held liable in the jurisdiction where the injury occurred, which is often wherever the victim happens to live. The legal framework gets so complicated that it often does not make sense try to discern exact legal “line” between free speech and defamatory conduct. The better approach is to use simple common sense and avoid posting anything that could even arguably be considered legally actionable.
A good rule of thumb to follow is this: if you write something false and insulting about someone else where other people can see it, then you could be held liable for defamation. This applies even if you only imply something false without explicitly stating it. For example, in this story the newspaper used some words that implied that Mr. Mann manipulated data, but it did not directly say that he manipulated the data. As the newspapers are now finding out, that is enough for Mr. Mann to present his case to a jury.
People and companies are increasingly finding themselves in court because of something that was posted online. The risks are high on both sides; in this case Mr. Mann his professional reputation is at stake. On the other side, the newspapers can be held liable for whatever harm their conduct caused, which in the case of a Nobel laureate could conceivably be pretty substantial. If a judgment is entered the newspapers may have to disclose that information to shareholders, or they may find their credit ratings downgraded. This is not a situation either party wanted to find themselves in, which just goes to show that sometimes it makes sense to tone down your comments before you post them to the public.
The risks are real, and everyone from employers to casual bloggers should take note. The world is changing, and what were once little-used defamation laws are increasingly being applied in cyberspace. While the Internet used to be a place where you could say practically anything you wanted and get away with it, in today’s world it pays to think twice before posting strongly-worded comments online.
If you’d like to discuss cyber-law, contact Chris Ingle, chairman Rose Law Group Cyber-Law Department, cingle@roselawgroup.com
