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| MAIN | GUIDE | PREFLIGHT | LIBEL | ||
held to your words Vicious rants and intimate confessions can do more than get you fired or tossed to the curb. They can get you sued. The Internet might be the new frontier, but it's still subject to age-old laws, including libel. (And while this article is based on U.S. law, every country has its own regulations.) Before you tell your first secret, it's a good idea to know your limits. What's Libel? The word libel is probably less well-known than its cousins, slander and defamation. They're related, but there are differences. Libel is written and slander is usually oral. In both cases, if it's unfairly critical of someone, it's defamation. Another key difference between libel and slander, however, is that it's easier to get dragged into a libel suit, and harder to get out unscathed. In a libel case, the burden of proof falls more on the defendant — that is you, the author. The simple act of publication tends to bias courts against the author, presuming the material is false, malicious, and potentially damaging. Three Elements of Libel A libel case requires three elements: Publication, identification, and defamation. And as an online diarist, there's a good chance you've automatically qualified for the first two. Publication: Here's the deal. If you wrote it, and someone else read it, it's published. This includes password-protected journals and entries, and "secret" entries sent only by e-mail. One reader is all it takes, even if it's your best friend, your mother, or a complete stranger. Clearly, then, it is pointless to demand that people you know steer clear of your diary. Or to insist that your journal is just for you, a "private space" to work things out. Much as we might romanticise the web, its use brings both untold power and serious responsibilies. If your words leave your computer, it's published. You're a publisher. Deal with it. Identification: If the person being libeled can be identified — or can identify him or herself in your writing — it's strike two. People who journal under their real names, and talk about and name the people around them, obviously meet this criteria automatically. But watch out. Some things web journalers to do to protect themselves are laughably ineffective. Using nicknames for your friends and family, for example, usually accomplishes nothing in the legal department. Why? Because even qualifiers like "my boss" or "my stupid bitch neighbor" can convert "Farthead" to "Jason Q. Private" under libel law. So too can separate entries taken together. If "Weenie" is described as a coworker in one entry (a category that could otherwise include hundreds of people), as a Jesus freak in another, and as the owner of a butt-ugly green Honda in a third? Congratulations. You might as well put her picture up too. Journaling under a pseudonym? Once again, you may giving yourself a false sense of security. So you don't give your name, or specify the city where you live, or even your sex. Maybe you also assign the people around you one-letter nicknames. Are you covered? Most likely not. As in the above example, not only can you "out" yourself over time — very likely, unless you don't mention anything about any person or place, ever — once again the "one person" rule applies. If anyone can figure out who you, or they, are from your writing, that's all it takes. Let's put it this way. If, somehow, someone you wrote about found and read your journal (even not neccessarily knowing who wrote it), could they figure out they were reading about themselves? Chances are they could. And remember, once legal action is taken, your identity can be established through everything from e-mail accounts to IP logs (ISPs and web hosts won't hesitate to turn over logs when faced with an expensive lawsuit). Defamation: Textbooks often define it as "a false statement to a person's discredit." Certainly wrongly accusing someone of a criminal act (i.e. saying your mechanic beats his wife) qualifies. Saying something that directly attacks someone's professional standing often does as well (i.e. that your doctor is incompetent). Unfortunately, even just calling a roommate a slut, or a teacher an asshole, might sound to some sufficiently defamatory. There are loopholes, exceptions, even some protections (see below). After all, your accuser must prove injury, and quantify the damage done. But if it's come to the point of legal action, things have probably already gone too far. After all, the case might stand a snowball's chance in hell in court, but the fact that you've been sued at all is trouble enough. A pending lawsuit can force you to take your journal down, or even keep you off the internet altogether. Defenses Against Libel Truth: The granddaddy of escape clauses is truth. If what you say is provably true, then the plaintiff supposedly has no case. But even this can get messy. Is the truth something still being debated? (That is, was your ex actually convicted of DUI, or is the matter still pending?) And, is the truth actually information that should have remained private? (For example, your friend's confessed addiction to internet porn.) Finally, there's malice. You might state the truth and nothing else, but if the context makes it clear you're doing so to hurt that person... Bzzt. Just knowing you're right may not be enough. Fair Comment: If you state a fact, and then comment on it, some would say you're protected. For example, you can note that your cousin is a member of the National Rifle Association, and then go on to say that you therefore think he's an idiot. However, there's a good chance your criticism will stray pretty far from the fact in question... and thus you're more likely to fail the malice test. Privilege: If you're repeating something said in open court, or on the floor of Congress, you're safe. This one's fairly rock-solid, but sadly, it's also one you probably won't ever get to grapple with. Public Figures: If the person you're writing about is a public figure, he or she is often fair game. Politicians, celebrities, leaders, public advocates or activists... you can call them every name in the book. Of course, these people also usually know this, and aren't likely to sue anyone for libel. When it comes to journals, you're almost always dealing with private citizens — everyday folk unfairly and publicly attacked. It bears noting, though, that even public figures can win libel suits sometimes. Look up Carol Burnett some time. And one interesting twist has developed here, when it comes to the Internet. Some legal experts argue that people who publish on the web, or even post on bulletin boards or participate in chat rooms, are "public figures." The good news is that if you attack another journaler, you just might stand a chance with a net-savvy attorney. The bad news is... well, by this standard you're a public figure too. Be Web Wise The fact that you can press a few buttons and be heard around the world is amazing. Exhilarating. And the ability to do so anonymously, facelessly, even namelessly, is empowering. But also frightening. It's no secret that people are less inhibited on the web, and you should be aware of this tendency when you start to tell your everyday stories. Don't just ask yourself if it's something you'd let your mother read. Ask if it's something you'd let everyone — enemies included — read. Otherwise, your audience might someday drop to exactly twelve. While it's an unpopular view, I've always maintained that it's not if someone finds your journal, but when. The web is rife with more than enough examples to prove this true. Instead of nicknames and pseudonyms, you might consider writing as yourself, and just exercising a little common sense. Ryan Kawailani Ozawa is the founder and lead editor of Diarist.Net. He is not a lawyer, but still knows enough to help you stay out of trouble. He can be reached at webmaster@diarist.net. |
| Updated: 3 December 2000 | © 2000 Diarist.Net | Contact: webmaster@diarist.net |