Beware of the Big Bad Bloggers
posted by Daniel Solove
It’s Halloween, and who is the biggest scariest monster on the block? Me. That’s because I’m one of them “bloggers” according to a sensationalistic article published in Forbes Magazine.
The article, written by Daniel Lyons and entitled “Attack of the Blogs,” has been drawing the ire of the blogosphere. A stew of fear and vitriol, the article begins with the sentence:
Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective.
He also writes:
Blogs started a few years ago as a simple way for people to keep online diaries. Suddenly they are the ultimate vehicle for brand-bashing, personal attacks, political extremism and smear campaigns. It’s not easy to fight back: Often a bashing victim can’t even figure out who his attacker is. No target is too mighty, or too obscure, for this new and virulent strain of oratory.
Bloggers should certainly be responsible and law-abiding, and bloggers shouldn’t (and don’t) have an immunity from lawsuits for defamation or invasion of privacy.
What is most ironic, however, is that after attacking bloggers for being lawless brigands, Lyons proceeds to offer some tips for “fighting back” against the bloggers that are equally as unethical and lawless as the bloggers in his caricature:
BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.
Great idea, right? Wrong. This can readily become a tort violation.
The tort of public disclosure of private facts creates a cause of action when one makes public “a matter concerning the private life of another” in a way that “(a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.” And the tort of intrusion protects against the intentional intrusion into one’s “solicitude or seclusion” or “his private affairs or concerns” that “would be highly offensive to a reasonable person.”
Consider what happened in 1970 when General Motors attempted a similar set of tactics against its prominent critic, Ralph Nader. GM attempted to dig up dirt on Nader, made harassing phone calls to him, wiretapped his phones, and kept him under extensive surveillance. The case is documented in Nader v. General Motors Corp., 255 N.E.2d 765 (N.Y. Ct. App. 1970). Nader sued, and GM paid a heavy price in bad publicity. It also paid Nader a hefty settlement — $425,000 (quite a lot of money in the early 1970s) — and it publicly apologized to him at a televised Congressional hearing. Not a wise move by GM.
Here’s another brilliant tip:
ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn’t liable but may skip the hassle and cut off the blogger’s access anyway. Also: Subpoena the host company, demanding the blogger’s name or Internet address.
The problem with this advice is that the host is immune from liability for being sued for what a blogger says under a federal statute, § 230 of the Communications Decency Act.
Filing a frivolous lawsuit just to scare a person would get an attorney into some ethical trouble. The host company can be subpoenaed for the blogger’s identity, but courts will often not reveal the identity of a blogger unless the plaintiff can demonstrate that the lawsuit is bona fide and not frivolous. I recently blogged about a court holding that a defamation plaintiff must satisfy the summary judgment standard before obtaining the identity of a blogger.
And lawsuits of dubious merit designed to attack people for their speech can backfire, since many states have anti-SLAPP laws. A SLAPP stands for a “Strategic Lawsuit Against Public Participation,” and it involves a lawsuit, similar to the kind recommended by Lyons, to stifle free speech. Anti-SLAPP laws will often allow a blogger to get a lawsuit dismissed early on and if the blogger is successful, the company must pay the blogger’s court costs and attorneys’ fees. An example is California’s Code of Civ. Procedure § 425.16.
I believe strongly that bloggers who engage in defamation and invasions of privacy should be held responsible for their actions. But the solution for companies and others who feel that they are wronged by a blogger is not to file frivolous scare-tactic lawsuits or to orchestrate a smear campaign.
The moral of the story: Don’t take your legal advice from Forbes Magazine.
October 31, 2005 at 12:15 am
Posted in: Blogging, First Amendment, Privacy
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Responses (2)
Bruce - October 31, 2005 at 2:46 pm
I had heard about this article, but I just took the time to read it. I find it more bizarre than anger-inducing. Frankly, it reminds me of the anti-copyright screeds I see a lot of. Both take a couple of extreme examples and use them to predict the downfall of Western civilization.
The author seems to conflating a number of problems that are not terribly new and laying them at the feet of blogs, for some reason. One is the problem of anonymous speech, and the way that it is liberty-enhancing in both good and bad ways (it makes some people feel free to libel others, for example). But blogs didn’t introduce this; message-board lawsuits have been around for almost a decade. Another is the way in which Internet speech generally tends toward extremes, and sometimes provokes a mob response. A third is the relative permanence of such comments, compared to their informal nature. None of this has anything to do with blogs in particular.
The major new claim in this article that I have not seen before is that there are teams of bloggers organized by competitors to slam an opponent’s service or product. Frankly, I find it hard to believe there is a lot of this going on. Any company engaging in such tactics would be taking on enormous legal and PR risks — and unlike irate consumers, the First Amendment protection for such speech would be nearly non-existent.
One thing that is true is that the rise in the popularity in blogs has occurred while the norms of using the Web as an information source are still settling out. Once, if a complaint was in print, that meant that substantial resources lay behind it, and aside from a few well-known crackpots (e.g. Lyndon LaRouche), resources correlate reasonably well with responsibility. I think some readers and targets are still making this assumption, but it is no longer justified when any idiot can post their complaints on a website. No one might reading it, in which case a business’s best response is simply to ignore it.
Similarly, it is easier for irate people to organize, but that doesn’t mean there are more of them, or that Internet speech is doing more harm than good for businesses. Previously, if I had a crazy complaint about a company, the odds that I could find a few like-minded individuals in my immediate vicinity were low. Now, crazy mobs are much easier to assemble. But I don’t know that we’ve seen a net increase in crazy people (meaning people with unusual enthusiasm about idiosyncratic complaints), as opposed to better organization. And it’s not only crazy people that are better organized; happy consumers, or well-founded complainers, are easier to aggregate as well. Plenty of small businesses are getting word-of-mouth, or word-of-link, business through the web that would have been impossible to achieve in a geographically restricted local market. So it seems hard to say there’s a net negative here. And even if there was, it would exist independent of blogs.
Mike - October 31, 2005 at 2:47 pm
The entire article was malicious. I picked up a paper copy of the rag yesterday, preparing to blog it. There were so many misstatements and logical fallacies that giving it the justice it deserves would practically require a line-by-line refutation. I hope your readers check out the article, as it really is as bad as it seems.
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