By MARK PEARSON Follow @Journlaw
Rudyard Kipling explained the secret to good writing in his poem The Elephant’s Child:
“I keep six honest serving-men (they taught me all I knew);
Their names are What and Why and When and How and Where and Who.”
A century later, we still use those serving-men to teach news writing but they can also be used as a lens to consider cyberlaw and how it applies to the online writer. Each raises legal questions and highlights the risks you face.
There are several ‘who’ elements to the online writing enterprise – and each can have an impact on your legal liability for what you write.
Identity and anonymity are important issues in the law of online authorship, and I devoted my last blog to the way courts have considered the latter.
Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. Those who write for larger organisations or companies share that responsibility. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger. In the 20th century, large media organisations would usually cover the legal costs of their reporters or columnists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream journalist or columnist thinking of going solo with your blog you might factor this into your thinking. Another advantage of writing for a mainstream publisher is that your work will be checked by editors with some legal knowledge and perhaps reviewed by the company’s lawyers before being published.
A crucial ‘who’ element is your audience. Many areas of the law only require your publication to reach single person for you to be liable for its content. (In the case of libel, it needs to be a third person beyond you and the person you are defaming.) You might think you are just corresponding with your cosy group of Twitter followers or Facebook friends – all with a shared sense of humour or sarcasm – but your remark can be detected when it is forwarded or retweeted to someone else and can go viral very quickly. As soon as it comes to the attention of the authorities or counsel for the person you have offended, the courts will only look to the fact that you were responsible for the original publication.
If others add to your words with more inflammatory material of their own, they carry responsibility for the new publication. Think twice before retweeting or forwarding the legally dubious material of others, because this becomes a new publication under your own name, so at the very least you will share the legal liability with the original publisher. And of course never retweet, ‘like’ or forward anything without reviewing it thoroughly first.
Of course then there is the ‘who’ element related to the people you name in your blog or social media posting. These can present legal risks. Sometimes people cannot be named because their identities are protected under legislation because they are children, victims of sex crimes, or vulnerable in some other way. Courts can also suppress people’s identities for other reasons, and sometimes even suppress the fact that they have issued a suppression order, known as a ‘super injunction’, as journalists and Tweeters in the UK are well aware.
Lawyers and prosecutors will of course look closely at ‘what’ has been published to decide whether your work is a criminal offence or might be subject to a civil action.
Throughout the world all kinds of online material has been the subject of legal action. This has included the publication of words, symbols, still and moving images, sounds, illustrations, headlines, captions and links. Sometimes it is the very words alone that are banned (such as the name of a victim of a sex crime) while on other occasions it is the totality of the coverage that gives rise to a meaning that damages a reputation or intrudes (such as a photograph of someone accompanying a negative story). In some countries it is the publication without a licence that is banned.
The instant nature of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.
British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column.
“Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the internet remembers,” Yiannopoulos wrote.
This also creates problems for digital archives – because if the material remains on the publisher’s servers it is considered ‘republished’ every time it is downloaded. This means that even where there might be some statutory time limitation on lawsuits, under some interpretations the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site.
A New York District Court considered whether material was actually ‘published’ when it was posted to the Internet. In Getaped.com Inc v. Cangemi, a motor scooter business claimed parts of its website had been copied. Cangemi argued the website was not a publication, but rather like a ‘public display’ or performance. Judge Alvin Hellerstein said ‘when a webpage goes live on the Internet, it is distributed and “published”’.
The Dow Jones v. Gutnick decision by Australia’s High Court in 2002 showed just how long the arm of cyberlaw could be. In that case it stretched all the way from Melbourne, Australia, to allow a businessmen to take suit against a publisher based in New Jersey, USA. The same kind of thing happened this year when a Californian court ordered US-based Twitter to hand over the name, email address and phone number of a British-based local government councillor whose council wanted to sue him for defamation over comments he had allegedly posted anonymously. A year earlier the same South Tyneside council had also managed to have Google and the blogging site WordPress ordered to hand over IP addresses to identify a whistleblower.
While foreign countries cannot normally enforce their laws beyond their borders, you might be called to account for your blogs and postings under their laws if you happen to travel there. And citizens in other countries can go to court and get a declaration against you in your absence, perhaps ordering you to pay a certain sum in damages for something you have published.
Depending on the international legal agreements in place, the courts in your jurisdiction might be empowered to apply the laws of another state or territory in a case against you. The landmark US case in the field centred around two companies’ dispute over the use of the name ‘Zippo’ – one a manufacturing company and another an Internet news service provider. A Pennsylvania court developed a sliding scale to help it decide whether the web news service had enough commercial dealings in the state for the court to have jurisdiction.
Not that long ago you had to be served personally with a summons for a criminal charge or a writ for the launch of a civil action against you. In many places this can be done online – via email or even via a message to your social media account. The Supreme Court of the Australian Capital Territory became one of the world’s first courts to allow legal documents to be served on defendants via a personal message on their Facebook pages when they had defaulted on their home loan payments. Other methods of contacting them had failed and their house was about to be taken from them.
Lawyers, prosecutors and judges will also look to your motives for publishing the material you have written. The motivation that will work against almost any defence in a publishing case is malice. Even the United States, which has one of the strongest defamation defences in the world under its First Amendment freedom of the press protection, will not excuse a slur against somebody if it can be proven to be false and malicious. Malice has a wide range of definitions in international law. Your online behaviour can be used as evidence in court, as well. Lawyers will dig for all kinds of proof that you have been less than honest about your behaviour or have shown a lack of good faith or malice in your dealings.
Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing mechanisms are more law-friendly than others. Sometimes this will depend on the type of material you are publishing. For example, there is an argument that Twitter users may be less prone to copyright infringement because the very nature of the medium limits the amount of another person’s work they can borrow and the retweeting function implies that everyone expects their work to be recycled by others. Photographers and a US District Court judge disagree with this, however. Twitter users might leave themselves more exposed in the area of defamation because there is so little space in which to give context and balance to their criticism of others. Tweeting from an event as it unfolds, such as a conference or a court case, has its dangers because your tweets might contain errors in the quotes of others or might be taken out of context by someone just reading a tweet rather than the overall coverage.
The ‘How?’ legal element can be crucial to several defences. If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation or a contempt of court charge over a report of a court case.
You might like to look back over some of your recent blogs, tweets and Facebook postings and apply the 5Ws and the H of legal analysis to them. How well do they shape up? …And who is that knocking at your front door? ;-)
© Mark Pearson 2011
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.