Wisconsin Lawyer
Vol. 79, No. 3, March 2006

The Shifting Legal Landscape of Blogging

by Jennifer L. Peterson

eblogs, or "blogs," are a rapidly emerging form of online communication that is fast, easy, interactive, inexpensive, universally accessible and - from a legal perspective - uncharted territory. A blog is an online journal or commentary posted to the Internet and can pertain to just about any conceivable topic. This relatively new type of forum¹ is gaining steadily in both popularity and influence. There are more than 10 million blogs today, and it is estimated that at least 32 million Americans read blogs regularly.²

As usual, the law follows technology, sometimes slowly. For example, one state supreme court just recently decided a blogging defamation case, providing one of the first judicial analyses of the phenomenon.³ Blogs cannot be ignored, and neither should the potential legal issues they create. Yet, the structure and nature of blogs raise a litany of challenging legal issues, including ones involving defamation, privacy, and copyright law.

Questions are being raised in defamation law about the applicability of traditional standards for defamation claims and, in privacy law, about the circumstances under which anonymous bloggers can be unveiled to pursue legal remedies against them. Furthermore, the nature and context of blogs may lead to unpredictable results for blogging defamation cases, especially given the applicability of federal statutory immunity under the Communications Decency Act of 1996.⁴

Blogging Basics

The blogosphere is merely a click away on everyone's computer. Blogs often provide links to other blogs or Web sites, with the blogger usually providing commentary or analysis. For easy navigation, the most recent blog entry appears first on the computer screen. Many, but not all, blogs allow readers to post comments or responses to each blog entry. At their best, blogs provide a civil, usually lucid, and running debate about subjects of public interest and concern. At their worst, blogs are potentially defamatory, profane, and rife with rumor and misstatements of fact.⁵

Blogs require no technical knowledge of the Internet. Bloggers do not need to use any computer languages, such as HTML, or even be computer savvy. With Internet access and just a few minutes, anyone can start a blog and share opinions, messages, photos, and even video (a "vlog") with millions of people worldwide.

The perception of blogs as a means for only personal expression or communication is anachronistic. While many people blog only about their personal lives, businesses and news organizations also are blogging. Corporate blogs may offer a unique forum for marketing new ideas and products and permit easy communication between management and employees. Blogs focusing on a certain topic or industry often discuss trends and history. Media blogs provide an opportunity for individuals to discuss world events and their coverage. "Poliblogs" are a forum for political expression, and "milblogs," or military blogs, chronicle the experiences of soldiers.

Defamation Standards

Blogging is a form of expression and, like other types of communication, can be both false and defamatory. Unlike more traditional forms of speech, however, the ease and speed of blogging mean that a click of the mouse potentially will publish the writer's thoughts to millions of readers. Accordingly, bloggers should be - but almost universally are not - familiar with basic legal issues inescapable in a medium in which every thought can be read by an Internet audience of untold millions.

The standard for defamatory speech is the same whether the medium is paper or the Internet.⁶ A statement is defamatory if it "tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her."⁷ There are three elements to a defamation claim: 1) a false and defamatory statement concerning another; 2) made in an unprivileged publication or broadcast to a third party; and 3) with fault amounting to at least negligence on the part of the speaker.⁸ Significantly, Wisconsin's retraction statute, Wis. Stat. section 895.05(2), which requires a person allegedly the subject of defamation to give a newspaper, magazine, or periodical a "reasonable opportunity to correct the libelous matter" before the person commences a civil action, does not apply to speech on the Internet.⁹

A public official or public figure¹⁰ claiming he or she has been defamed and seeking damages is subject to a higher standard than a private figure plaintiff. A public figure defamation plaintiff must prove by clear and convincing evidence, that the speaker made the allegedly defamatory statement with actual malice - that is, either with knowledge that the statement was false or with reckless disregard as to the truth of the statement.¹¹ Proof of actual malice is required because public officials and public figures have greater opportunities to effectively counter false statements than do private individuals and, thus, they must meet a higher standard to prove a defamation claim.¹² The U.S. Supreme Court established the actual malice standard to reinforce "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open...."¹³

At the least, blogs raise questions about the traditional definition for "public figure": will a private individual who happens to be a widely-read blogger be classified as a public figure in the eyes of the law?¹⁴ For example, since blogs often discuss other blogs and bloggers, a widely-read blogger may bring a defamation claim based on false and defamatory statements made by another in response to the blog.

By their nature, blogs may not fit within the private/public framework that the U.S. Supreme Court constructed for defamation law more than 30 years ago. Unlike traditional means of publication and broadcast - newspapers, magazines, television, and radio - blogs can help level the playing field for private and public figures. The distinguishing feature of many blogs is the interactive ability of readers to post comments in response to blog entries. Since anyone can start a blog - or respond to a blog posting with his or her own comment when the blog gives readers that opportunity - the private/public figure distinction may no longer be as meaningful for defamatory blogs. Indeed, both private and public figures have the same means and access, at least on the Internet, to counter false statements.

In John Doe 1 v. Cahill, a recent blogging defamation case, the Delaware Supreme Court acknowledged the "unique democratizing medium" of the Internet.¹⁵ "Unlike thirty years ago, when `many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas,'" the court wrote, "the [I]nternet now allows anyone with a phone line to `become a town crier with a voice that resonates farther than it could from any soapbox.'"¹⁶

Blogs also are unique in that, when they allow comments or responses to a blog posting, the comments or responses are immediately accessible to the same audience as is the original allegedly false and defamatory statement. A blogger can respond directly to statements by others and potentially speak to the same target audience that heard the false and defamatory speech in the first place.

For now, it is likely that the traditional defamation standards, including the private/public figure distinction, will continue to apply to defamation cases involving blogs. The very accessibility of blogs, however, may lead courts to reevaluate defamation law standards.

The Context of Blogs

The anonymity permitted by the Internet also creates potential legal issues for blogs. While many bloggers use their real names and identities, others use pseudonyms, especially when posting comments to someone else's blog. That leads inevitably to constitutional privacy questions and practical questions concerning pretrial discovery.

Under what circumstances can the plaintiff "unveil" the anonymity of a defendant, forcing the disclosure of a defendant's real identity? The Delaware Supreme Court also addressed this issue in Cahill, holding that "to obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff `must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question.'"¹⁷ The context of the allegedly defamatory speech, including "factual and contextual issues relevant to chat rooms and blogs," was significant in the court's analysis of the defamation claim.¹⁸

The Cahill case involved allegedly false and defamatory postings on a blog dedicated to the political issues of a Delaware town.¹⁹ The anonymous postings on the "Smyrna/Clayton Issues Blog" concerned Patrick Cahill's performance as a city councilman.²⁰ Before filing suit, Cahill obtained the IP (Internet protocol) address of the anonymous blogger and, in turn, a court order requiring the Internet service provider to disclose the blogger's identity.²¹ The anonymous blogger filed a John Doe action seeking an emergency protective order to prevent Cahill from seeking his identity from the Internet service provider.²²

The trial court had applied a good faith standard to determine when a defamation plaintiff can compel the disclosure of an anonymous defendant.²³ That was not sufficient, the Delaware Supreme Court concluded, because a good faith standard might still have a chilling effect on speech.²⁴ The court said, "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."²⁵ The court, therefore, adopted the higher summary judgment standard, holding that to obtain discovery of an anonymous defendant's identity the defamation plaintiff must "introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff's control."²⁶ In adopting the higher standard, the court concluded that it is "the appropriate test by which to strike the balance between a defamation plaintiff's right to protect his reputation and a defendant's right to exercise free speech anonymously."²⁷

While the Delaware Supreme Court specifically stated that its decision did not turn on the fact that the allegedly defamatory speech appeared in a blog,²⁸ the characterization and perception of blogs may influence the way courts frame and determine the legal issues involving blogs. Noting that blogs are "generally not as reliable as the Wall Street Journal Online," the Cahill court characterized blogs primarily as a "vehicle[] for the expression of opinions" and "not a source of facts or data upon which a reasonable person would rely."²⁹ A reasonable person reading blog statements, the court continued, will not necessarily "assume that the statements are factually based and researched."³⁰ Accordingly, "[w]hen one views ... allegedly defamatory statements [in a blog] in context - both the immediate context and the broader social context - it becomes apparent that many of the allegedly defamatory statements cannot be interpreted as stating actual facts, but instead are either `subjective speculation' or `merely rhetorical hyperbole.'"³¹

A recent defamation case involving an Internet "gripe" site emphasizes the significance of the context of the speech at issue. In Penn Warranty Corp. v. DiGiovanni,³² a disgruntled customer operated a Web site that criticized a company's products and services. The Web site included allegations that the company is "blatantly dishonest," is "crooked," "has committed `fraud,'" and "has been `running scams,'" and included facts about the customer's small claims lawsuit against the company.³³ The company filed suit alleging defamation, among other causes of action. Focusing on the Web site's "context," the court concluded that the statements were not defamatory, because, in part, the customer's opinion was accompanied by a recitation of facts on which the opinion was based. The court noted that the Web site "presents to others as a personal statement by its maker" and that "when viewed in its full context," the statements reflect only "personal opinion."³⁴

In contrast to these courts' characterization of blogs largely as sources of opinion, not fact, a new ruling by the Federal Election Commission (FEC) aligns blogs more closely with traditional news media. On Nov. 18, 2005, the FEC issued an advisory opinion concluding that blogs operated by Fired Up! LLC (Fired Up) are the "online equivalent of a newspaper, magazine, or other periodical publication" exempt from campaign finance limits and regulation pursuant to the statutory press exemption.³⁵ According to the FEC, the blogs qualify because their primary function is to "provide news and information to readers through ... quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites [sic] and through Fired Up's original reporting."³⁶ Furthermore, because Fired Up is not owned or controlled by any political party, political committee, or candidate, the costs incurred to operate the blogs are exempt from the definitions of "contribution" and "expenditure" under the Federal Election Campaign Act of 1971.³⁷

While the characterization of blogs will continue to be controversial, each instance of an allegedly false and defamatory blog posting should be considered within the context of the specific blog at issue. The Cahill court's casual dismissal of blogs as "merely rhetorical hyperbole,"³⁸ rather than statements of fact that can be proven false, ignores the case-by-case factual inquiry traditionally applied in a defamation case.³⁹ The court's characterization of blogs also ignores the inescapable reality that blogs are an emerging form of legitimate and widespread communication of both fact and opinion,⁴⁰ and that they can cause reputational harm just like more traditional forms of mass communication.

As corporate, media, and political blogs spread in popularity and if they prove their reliability, an allegedly defamatory posting may be viewed differently from the "Smyrna/Clayton Issues Blog" in Cahill. As with all types of speech, moreover, the courts probably will view an allegedly defamatory blog posting in its immediate context - that is, along with other statements in that blog, rather than in the broader social context of blogs generally. Given their variety, blogs may defy characterization.

The Communications Decency Act

The Communications Decency Act of 1996 ("section 230")⁴¹ is a powerful federal law that may provide bloggers with some immunity from defamation and other tort actions. Under the federal statute, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."⁴² Accordingly, section 230 "precludes courts from entertaining claims that would place a computer service provider in a publisher's role."⁴³

The statute defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet...."⁴⁴ An "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."⁴⁵

Although no appellate court has directly decided this issue, bloggers may find some protection under section 230. The unique circumstances of a blog, however, raise questions about when section 230 immunity may apply.

A blogger can be, simultaneously, a provider and a user of computer interactive services subject to immunity - as well as the speaker or content provider potentially liable for the speech on his or her blog. A blogger is a user of an interactive computer service when she creates a blog through an interactive computer service, such as www.blogger.com. A blogger may be a provider of an interactive computer service if she allows third parties to add comments or other material to her blog. For example, reader comments or entries by guest bloggers could be considered information provided by a third party, and the blog host would not be held liable for defamatory material. However, a blogger is the speaker, or content provider, when she posts original work or substantially edits the work of others. When a blogger is acting as a speaker, moreover, the blogger is almost always potentially liable for false and defamatory speech.

Section 230 has not yet been judicially construed in the context of a blog, but the policies underlying Congress's enactment of the law may encourage courts to extend immunity to bloggers. First, "[s]ection 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum."⁴⁶ Encouraging "robust" discourse by bloggers, therefore, is consistent with the purpose of section 230 and, not incidentally, the First Amendment. Yet, it cannot be said that Congress intended to provide absolute immunity to those who communicate on the Internet.

Second, "[a]nother important purpose of [section] 230 [is] to encourage service providers to self-regulate the dissemination of offensive material over their services."⁴⁷ Under section 230, a service provider is immune from claims stemming from "the exercise of its editorial and self-regulatory functions."⁴⁸ If section 230 applies, therefore, a blogger would be encouraged to exercise his editorial function and remove from his blog potentially defamatory comments made by third parties.

For bloggers, the primary issue is whether the process of selecting information for their blogs means that information is still "provided" to them as required for section 230 immunity. It is not clear whether section 230 immunity applies to bloggers who actively gather material and then republish it on their blogs.

The U.S. Court of Appeals for the Ninth Circuit has addressed the question of when information is "provided" under section 230 in the context of a listserv. In Batzel v. Smith,⁴⁹ a third party sent an allegedly defamatory email to the manager of a listserv, without knowing that the email recipient operated a listserv and would publish his email. Addressing the meaning of "provided" under section 230, the court adopted an objective standard:

"[A] service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other `interactive computer service.'"⁵⁰

The Batzel court remanded the case to determine whether the email was "provided" within the meaning of section 230.⁵¹

Assuming other courts follow the Ninth Circuit's lead in Batzel, the reasonable person standard could provide immunity to bloggers who actively gather information on the Internet and then republish it on their blogs. Bloggers have a strong argument that almost any information posted on the Internet was, by definition, provided for republication on the Internet and that a blogger should enjoy immunity for his or her use of that third-party material.

Editing the work of others before republishing it on a blog, however, may transform the blogger into the speaker and, thus, subject the blogger to liability for any false and defamatory speech. Precisely when the transformation from provider to speaker occurs, however, is not clear. A New Jersey state appellate court recently held that the operator of a bulletin board Web site was immune under section 230 even though he edited a message to remove profanity and helped "shape[] the content provided by others."⁵² It remains unclear whether a blogger exercising similar editorial control should enjoy section 230 immunity. Undefined as well is the level of editing that transforms the blogger into the speaker and subjects him or her to liability.

Conclusion

Blogs are changing the way people communicate. By their nature, however, blogs may not fit neatly in the private/public figure distinction in defamation law, established more than 30 years ago, or the framework of the Communications Decency Act, passed fewer than 10 years ago. Although the law has yet to catch up with this new technology, everyone should be aware of their blogging rights and responsibilities as well as the rights of those they criticize and discuss in blogs.

As a practical matter, every blogger should know and understand basic defamation standards and the parameters of immunity applied pursuant to section 230. Future blogging defamation cases likely will refine the parameters for liability and immunity with courts basing their decisions, at least in part, on the context of the blog at issue.

Until further clarification by the courts, however, bloggers should "speak" as though they are potentially liable for false and defamatory speech in their postings, including for other persons' work that is substantially edited by the blogger. Based on the stated purposes of section 230, bloggers probably can assume they would enjoy immunity for republishing, without editing, information found already on the Internet. Perhaps the best legal advice to bloggers, though, is to know that the law is becoming aware of the technology, and that courts, albeit slowly, are beginning to establish the contours of the legal landscape for blogs.

Endnotes

¹In 1998, there were only a "handful" of blogs. See Rebecca Blood, Weblogs: A History and Perspective, <http://www.rebeccablood.net/essays/weblog_history.html> (last visited Nov. 28, 2005).

²Carl Bialik, "Measuring the Impact of Blogs Requires More than Counting," The Wall Street Journal Online, May 26, 2005, <http://online.wsj.com/article/SB111685593903640572.html>.

³John Doe 1 v. Cahill, 884 A.2d 451 (Del. 2005).

⁴47 U.S.C. § 230 (2004).

⁵See Daniel Lyons, "Attack of the Blogs," Forbes, Nov. 14, 2005, at 128.

⁶See Reno v. ACLU, 521 U.S. 844 (1997).

⁷Stoll v. Adriansen, 122 Wis. 2d 503, 517, 362 N.W.2d 182 (Ct. App. 1984); see Restatement (Second) of Torts § 558 (1977).

⁸See Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997) (also noting that some cases define a defamation claim as containing four elements).

⁹See It's in the Cards Inc. v. Fuschetto, 193 Wis. 2d 429, 437, 535 N.W.2d 11 (Ct. App. 1995).

¹⁰A public figure is "a private citizen who, by assuming a `role[] of especial prominence in the affairs of society ... [has] invite[d] attention and comment.'" Wiegel v. Capital Times Co., 145 Wis. 2d 71, 81, 426 N.W.2d 43 (Ct. App. 1988) (quoting Gertz v. Welch, 418 U.S. 323, 345 (1974)).

¹¹Torgerson, 210 Wis. 2d at 535-36; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

¹²Gertz, 418 U.S. at 344-47.

¹³New York Times, 376 U.S. at 270.

¹⁴See Larry E. Ribstein, University of Illinois College of Law, Initial Reflections on the Law and Economics of Blogging (2005), <http://law.bepress.com/uiuclwps/papers/art25>.

¹⁵Cahill, 884 A.2d at 455.

¹⁶Id. (quoted sources omitted).

¹⁷Id. at 463 (quoting Colgain v. Oy-Partek Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del. 2002)).

¹⁸Id. at 465.

¹⁹Id. at 454.

²⁰Id.

²¹Id.

²²Id. at 455.

²³Id.

²⁴Id. at 457.

²⁵Id.

²⁶Id. at 463 (emphasis in original).

²⁷Id. at 460.

²⁸Id. at 465 ("[W]e make no distinction between communications made on the [I]nternet and those made through other traditional forms of media in determining the standard to be applied.").

²⁹Id.

³⁰Id. at 466.

³¹Id. (quoting Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 896 (2000) (citations omitted)).

³²Penn Warranty Corp. v. DiGiovanni, __ N.Y.S.2d __, 2005 WL 2741947 (N.Y. Sup. Ct. 2005).

³³Id. at *3.

³⁴Id. at *5.

³⁵Federal Election Commission, Advisory Opinion 2005-16 (Nov. 18, 2005).

³⁶Id.

³⁷Id. (applying 2 U.S.C. § 431(9)(B)(i); 11 C.F.R. §§ 100.73, 100.132).

³⁸Cahill, 884 A.2d at 466.

³⁹See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990) (reviewing the "impression" and "general tenor" of the article to determine "whether a reasonable factfinder could conclude that the statements ... imply ... that [the plaintiff] perjured himself in a judicial proceeding.").

⁴⁰ "Yesterday's Papers," The Economist, Apr. 23, 2005, at 72.

⁴¹47 U.S.C. § 230.

⁴²47 U.S.C. § 230(c)(1).

⁴³Zeran v. America Online Inc., 129 F.3d 327, 330 (4th Cir. 1997).

⁴⁴47 U.S.C. § 230(f)(2).

⁴⁵47 U.S.C. § 230(f)(3).

⁴⁶Zeran, 129 F.3d at 330 (citing 47 U.S.C.

§ 230(a)(3), (b)(2)).

⁴⁷Id. at 331.

⁴⁸Id. at 331 (citing 47 U.S.C. § 230(b)(4)).

⁴⁹Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

⁵⁰Id. at 1034 (emphasis added).

⁵¹Id. at 1035. See Batzel v. Smith, 372 F. Supp. 2d 546 (C.D. Cal. 2005) (on remand, court granted defendant's motion for summary judgment on res judicata grounds).

⁵²See Donato v. Moldow, 865 A.2d 711, 720 (N.J. Super. Ct. App. Div. 2005).

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