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Category: Tort Law

11

Academic Blogging Scandal

bitchphd2.jpgA developing case about academic bloggers contains a chorus of major issues swirling in the blogosphere: the career consequences of blogging, moderating blog debates, hot-button political issues, and defamation.

The case involves Paul Deignan, an engineering PhD candidate who has a blog called Info Theory. Deignan got into a debate with the anonymous blogger Bitch Ph.D. over abortion. Deignan is pro-life; Bitch Ph.D. is pro-choice. They exchanged posts on their mutual blogs, and Deignan also placed a comment on one of Bitch Ph.D.’s posts.

As reported by Inside Higher Ed:

Then he posted a seemingly innocuous entry on the Bitch Ph.D. site: “Your linking talking points w/o analysis. Already I see several points that are exaggerated and misconstrued without even needing research…”

Feeling that this comment and subsequent ones from Deignan did not qualify as “substantive debate,” she soon deleted his comments and banned him from her site. Her policy states, “Comments are great; obnoxious comments get deleted. Deal.”

If this were all, the story would be just a typical tale of the blogosphere. But things got much uglier:

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8

Suing Wikipedia

Wikipedia.jpgWhat happens if there’s a Wikipedia article about you that’s unflattering? What if it is in error or revealing of your private life? Wikipedia, for those not familiar with it, is an online encyclopedia that is written and edited collectively by anybody who wants to participate.

Daniel Brandt, a blogger who maintains blogs called Google Watch and Wikipedia Watch complained to Wikipedia administrators asking them to delete an entry about him. What should one’s rights in this regard be?

Here’s what Brandt writes:

There is a problem with the structure of Wikipedia. The basic problem is that no one, neither the Trustees of Wikimedia Foundation, nor the volunteers who are connected with Wikipedia, consider themselves responsible for the content. . . .

At the same time that no one claims responsibility, there are two unique characteristics of Wikipedia that can be very damaging to a person, corporation, or group. The first is that anyone can edit an article, and there is no guarantee that any article you read has not been edited maliciously, and remains uncorrected in that state, at the precise time that you access that article.

The second unique characteristic is that Wikipedia articles, and in some cases even the free-for-all “talk” discussions behind the articles, rank very highly in the major search engines. This means that Wikipedia’s potential for inflicting damage is amplified by several orders of magnitude.

Brandt muses whether he ought to sue Wikipedia:

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1

“Potentially Safer” Cigarettes

images.jpeg This article from the Times (UK) is interesting. Apparently, BAT is planning to introduce a cigarette that, through various filtering technologies, may cut the risk of cancer and other smoking related diseases up to 90%

There are many problems with producing, marketing and buying “safer” cigarettes. Some were explored in one of my favorite books about American business, Barbarians at the Gate. As the article points out, the BAT folks are nervous. Although “privately” they refer to the cigarette as “risk free” or “low-risk cigarettes”, they are going to be sold as merely “potentially safer”.

But here is the kicker. BAT executives understand they can’t say, out loud, that consumers using their product as it was intended to be used will not get sick. Even safe cigarettes are bad for you, even if somewhat less so than competitive brands. But the “safe” inference is the inference that BAT really would like consumers to make. Without the inference, why would smokers buy a cigarette that likely will be more expensive, or have a harder “draw,” or might even taste terribly. So, BAT is “likely to focus its advertising on the new technology,” and hope that consumers will reach the appropriate conclusion themselves.

0

A jury is a jury is a jury is a jury… (or not)

jury.bmpDave’s post in defense of juries reminds me of one of the things that I dislike about our current debates over the jury system. Too often, the issue is presented in terms of a stark choice between judges as fact finders or juries as fact finders. The problem, of course, is that these choices do not exhaust our alternatives. For example, we might have — as they do in some civil law systems — a jury that deliberates in the presence of the judge, who acts as a kind of foreman. This might be a good way of getting at the problem of juries misunderstanding complex legal instructions.

One of the best criticisms of juries, I think, is that they are basically ignorant about some of the complex issues that they are called upon to decide. The problem, of course, is that judges are frequently just as ignorant. Karl Llewellyn once suggested a way of splitting the difference on this point. Borrowing from the lex mercatoria, he suggested that commercial cases be decided by merchant juries. The idea was that you would get expertise as well as community involvement. Ultimately, the Commission on Uniform State Laws shot down the idea, and hence it never made its way into the UCC. Still, it is a useful reminder that there are more juries in heaven and hell than are dreamt of it ATLA’s or ATRA’s philosophies.

5

A Victory for Anonymous Blogging

anonymity2.jpgAnonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court — Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.

Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.

The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.

What if your identity – and those of the Miers impersonator and Article III groupie — could readily be unmasked?

The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.

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