Are you responsible if some anonymous poster writes a comment about someone on a blog and it is defamatory? It is certainly true if you own the blog and you write a posting on the blog that you are responsible for the legal consequences of your authorship, but if a third party writes a comment post (and there are many more comment posts than there are blogs for sure) will the owner of the blog be responsible or be protected under the provisions of § 230 of the Communications Decency Act?

In a law review article published by Professor Glenn Reynolds (sometimes known as the Blog Father and author of the blog InstaPundit) he makes some interesting observations about why defamation law should be diluted on the internet in the age of the instant blog. Why? Because an article that has been published on the internet can be easily countered by a blog by the person who feels he or she has been defamed. While he makes some good points I would not concur with this reasoning because, as my grandmother used to say, “two wrongs don’t make a right”. If someone publishes defamatory information (and the legal definition of publication means it can be spoken to one third person, not just in the New York Times) a response to this wrong statement does not eradicate the incorrect statement made elsewhere. The point of bringing a defamation action is to get a judgment that states that the person made a defamatory statement, not to allow them to continue to make such statements and even, perhaps, to profit over such statements as being a “discussion”.

Professor Reynolds’ article is worth reading and he does review case law back to the seminal 9th Circuit Carafano v. Metrosplash.com case (also known as the Star Trek Actress case) which is still quoted as one of the leading cases in the interpretation of ISP liability limitations under the Communications Decency Act which can be used to apply to the comments area of blogs because such comments are not under the control of the blog publisher. He also rightfully points out something that I often come across in my practice that the mere statement of opinion does not rise to the level of defamation even if such an opinion is, as stated in Penn Warranty Corp. v. DiGiovanni, 810 N.Y.S.2d 807 at 814 (2005), “offensive, vituperative or unreasonable”.

I agree with many of his observations about the transient nature of blogs and how the internet, while empowering everyone to post slanderous statements also reduces the impact of these statements because anyone can start a free blog and also link their blog entry to the original offending post, thus making the publication more of a dialogue rather than a statement of fact.

When blog writers do act as “reporters” stating “first hand fact” the policy analysis is much similar to that of the historical approach of American defamation case law but Prof. Reynolds does point out that blogger libel is somehow more similar to slander because of the ability to link back to original posts and to post comments that can link to the offending material, thus avoiding the problem that occurred in published defamation remarks, i.e. there was no link between the original publication and any later retraction making it nigh impossible for a researcher to later discover the defamation.

One thing that I have to question is the professor’s belief that most bloggers could not afford to defend a defamation action or that they are somehow “judgment proof”. I don’t really understand this aspect of his analysis because I know it is possible to file a defamation action in a small claims court or court of limited monetary jurisdiction like NYC Civil Court (called county or district court in some other jurisdictions). These courts allow for the prosecution of cases by plaintiffs without constant legal counsel (some advice may be necessary) and they can often be started through the mail. The fact that most blogger defendants may not be rich should also not be a deterrent for someone who is a victim of libel because a judgment is usually good in most states for 20 years and sometimes people get their money plus interest many years after the fact so much like tenants sue landlords for rent overcharges victims of defamation have an easy way to seek a smaller award of damages through these “user friendly” lower courts.

If the offending blogger is trying to hide his or her identity one might still resort to long arm jurisdiction even to establish the identity of a party as defamation rest on publication of the libel in the jurisdiction of the plaintiff which with today’s internet is clearly possible though that is also an open question of law and while there were cases (like the famous Gutnick v. Dow Jones case from the Australian Supreme Court) the recent trend in the U.S. is to limit jurisdiction to the place of publication, see the Second Circuit case Best Van Lines v. Walker (decided June 26, 2007). One can ask for service of process by some more modern means, such as sending an email to a defendant or even posting the summons on the offending blog.

Free speech advocates can and do argue that it should be hard for bloggers to be sued for their writings based on some of the professor’s theories. However I would like to point out that not all victims of defamation are going to be bloggers and even if they do they won’t all feel a warm fuzzy feeling when they post a comment somewhere if their blog has little traffic and the blog where the defamation occurred has major traffic (and possibly is a deep pocket defendant with a lot to lose). With the costs of litigation in federal court (and the need to find the forum of the defendant to properly file a suit that will not be dismissed for lack of jurisdiction) it may be better for most victims of internet defamation to take the “self help” approach being advocated by the professor, or to file a smaller claim (which may none-the-less represent a significant amount of money to the plaintiff) in one of the lower courts.

Reynolds, Glenn Harlan, “Libel in the Blogosphere: Some Preliminary Thoughts (Final Version)” Washington Law Review, Vol. 84, p. 1157, 2006 Available at SSRN: http://ssrn.com/abstract=1030527

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