November 12, 2005

posted by Daniel J. Solove

Do you think there's anything unique to cyberspace in this dispute? The ease of communication might have led people to do things that they wish they hadn't, but it seems like this dispute could have easily taken place prior to the Internet without any qualitative difference. Eric.

The controversy is, as you say, a "chorus of major issues." Pulled in by your post, and the "Inside Higher Ed" story, I've been knocking about in the source materials this morning. A gem: Tim Burke, a history professor at Swarthmore, offers this meditation on the controversy. His take on the norms at play strikes me as cogent. His calm presentation is welcoming.

Eric -- I find it odd that you raise this question, as I never said that there was anything unique to cyberspace about this dispute. Why does this question matter? You (appear to)believe that it is relevant and important to deflate the notion that there's uniqueness in what is happening in cyberspace. Why?

My reaction to your question is:

(1) I don't think it is such a big deal if this is unique or not -- it's still an interesting case.

(2) Although this could have happened offline, it didn't -- cyberspace is increasingly where life's disputes are arising.

(3) I wonder how readily something like this would have occurred without blogging and the Internet. Deigan and Bitch Ph.D. would probably not have even met each other, let alone be conversing. Nor would Hettle probably have been able to overhear their debate.

In the abstract, an incident where two people get into a debate over a political issue and a third party reports nasty things about one of the debaters to his supervisor could readily occur offline.

But I wonder whether all these people would be interacting in the way they were and discussing the issue they were discussing if it weren't for the blogosphere.

Many things that readily occur on the Internet could have certainly taken place prior to the Internet. The Internet is often not unique in this way -- it doesn't always create a brand new problem that we've never seen before. But it can amplify things; it can facilitate certain human interactions that might not readily occur; and so on.

Also, although sometimes the Internet may not create qualitatively unique problems, it might create quantitative differences that would be material.

I think Eric's question is a good one in general, but I think I side with Dan for reason #3 above. It's difficult to imagine a real-world dispute arising where two people of diametrically opposed views are having an informal, yet recorded and public conversation not subject to time limitations, which a third party then escalates by attempting to impose shame sanctions with one party's superiors. I suppose it could happen, but I suspect not with enough frequency to lead to a clearly defined set of norms or a lot of published legal decisions evaluating the rights of the various parties. As just one example: is "trolling" always rude? Rude in some circumstances (vehemently disagreeing with posts on a non-political site) but not others? What about digging up publicly available information on someone and disclosing what you find -- impolite, or just part of the Google age?

Also, I'm confused by the allegations made, and I suspect unfamiliarity with the Internet may be playing a role in this dispute, either in provoking it in the first place, or in the possible harm the allegations may cause Deigan. How does one troll from a homepage? I think this means that Deigan linked his name in the comments to his homepage, which in turn mentioned who his dissertation committee was. That seems fairly attenuated, but I think Hettle's allegations may initially carry more weight than they would if it was clear what he was talking about. And it's hard to know what to make of the claim that Deigan used IP spoofing to try to figure out who someone else was -- IP spoofing covers your own tracks, it doesn't reveal the tracks of others, unless it was part of some sort of attempt at pretexting. Pretexting would be bad if Deigan engaged in it, but it's hard to tell if that's Bitch Ph.D.'s actual complaint.

Nice blog. Interesting content.

Mispelled my name. Thanks.

Paul -- Sorry about that. The misspelling has been fixed.

Blogs amplify what others already know. If someone is thoughtful, his or her colleagues and friends know. When the thoughtful person publishes a blog, the whole world knows. The same principle applies to cranks, fools, and fiends. Perhaps all blogger programs should come with this warning: "Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding."

Dan, I do think this is an interesting issue, but mostly because of the dynamics of an academic dispute. Otherwise, the blogging venue strikes me as an incidental part of the issue.

Eric.

The defamation claims sound like losers. Hettle's e-mail contains a mixture of truth/non-actionable opinion. I don't see the problem with BPD's comments, unless Deignan didn't actually visit and post comments on her site. I agree with Bruce for the most part. BPD's allegation that Deignan tried to find out her identity is not itself defamatory. (I think BPD mis-used the word spoofing, which usually describes someone using someone else's doman/IP, but I can't see how "spoofing" would allow someone to figure out BPD's identity. Taken in context, it's tough to see how BPD's comments accuse Deignan of going anything improper or illegal.)

As to whether the fact this took place on blogs tweaks the issue, I'm not sure. First, there's the whole anonymity / unmasking issue. Posting anonymously is much easier to do on the Internet and there's a slew of growing law dealing with anonymous posting and defemation (starting with 2themart.com). I have heard that Deignan is seeking to unearth BPD's identity maybe that comes into play here. Second, it doesn't seem like there are any such allegations afoot but in other similar cases people try to hold the blogger liable for the comments/actions of a commenter. Since Hettle's communication took place off BPD's blog that's not so much an issue either. (There could also be some garden variety personal jurisdiction issues lurking.)

Doesn't sound like there are terribly winnable claims here.

Couple of thoughts. Hettie may have slander coverage under his homeowner's insurance, may not.

Big difference between a case that loses with a jury and one that gets a summary judgment. I speak with some authority on dispositive motions, in the last four years I've won over sixty of them.

Finally, the real concern is venue. Defending a case far away from home is a nasty thing to have to do.