Wednesday, April 22, 2015

The Internet, Evidence, and Defamation

The Internet is changing so much around us for the better. The accessibility of information is incredible, from Google to search able JCC orders, to RSS feeds of the latest appellate decisions. There are assortments of blogs and journalism about the world, the news, the workers' compensation marketplace and more. It is an incredible tool that has changed our lives and continues to evolve. 


There are downsides to this vast flow of information. The information on the Internet can be difficult to verify or source. Sites like Wikipedia allow virtually anyone to change information. Recently, Business Insider reported that professionals have been hired in some cases to edit client's Wikipedia pages to benefit company's public image. Public relations firms accused of manipulating public opinion.  

Despite the somewhat fluid nature of the information on the Internet, courts may use material from Wikipedia to reach their decisions. See Truje-Perez v. Arry's Roofing. The New York Times notes that court reliance on Wikipedia is not anything new. In a 2007 article, they noted over 100 opinions had cited Wikipedia. In a 2012 article, the ABA and Wall Street Journal note about 100 Wiki citations in just the Federal Appeals Courts in the preceding five years. 


That ignores the argument that appellate courts ought to stick to the evidence of a particular case. Appellate courts are courts of error, whose role is to review the application of the law in a particular case. The role of hearing and determining facts belongs to the trial court. It is there that evidence should be introduced. 


An appellate court researching facts in any way, beyond what was presented by the parties at trial, is curious at best. Where is the due process in an appellate court performing research and identifying facts and figures of which neither party is aware and which neither presented at trial? Neither party in that instance can examine such facts introduced on appeal by the reviewing court, challenge their validity, or present contradictory or impeaching material. 


Beyond these concerns in the broadest context, an appellate court doing its own factual research by relying upon open-source Internet data like Wikipedia, with its propensity or at least potential for accuracy issues is more curious still. 


The Internet thus has the potential to convey information, or disinformation. Between these two is the potential for misinformation. I thought of this recently when a news story popped up one day regarding an Indiana soccer rivalry. Apparently a student was arrested, and his picture was posted immediately to the world wide web. Students rooting for a rival team copied the mugshot from the Internet and had it reproduced on t-shirts to wear to the big game. Shaming the other team's star was apparently intended to gain advantage. 


A couple of things in this story caused curiosity. First, how did they get the mugshot? Well, information is all over the Internet. It turns out that includes mugshots. I decided against linking to sites and feeding them "hits." Essentially, once you are arrested, there is a mugshot taken. The companies that own these sites apparently request these pictures from the authorities, and post them on the Internet. You can visit these pages and look at pictures, search by zip code or town, and see the photo, the charges, and more.


Where is the due process? News media are usually careful to to make clear that someone has "been accused." They usually stress that "accused" or "arrested" is not the same as "conviction."  Some of the mugshot websites now contain similar disclaimers such as "all are presumed innocent." Interestingly, some of these sites are willing to remove a person's mug shot, or "unpublish" for a price. One prominently notes that "if you were found guilty, you still may qualify to be unpublished."

Do these mugshot photos crop up in the litigation process? Anecdotal instance may lead us to conclude that they may. As with photographs from other social media platforms, parties in litigation are likely being asked to identify/acknowledge prints of their photographs and asked about the activities that are depicted. Some might argue that the use of some such information is more likely to offend or embarrass than to lead to admissible evidence. 


In the news business, there is concern with potential liability for defamation. Defamation is to falsely injure "the good reputation of another." The United States Supreme Court defined some standards for this in 1964 in New York Times v. Sullivan. The court became involved because there are issues of freedom of speech and of the press and competing interests of protection of privacy or personal liberty.  

The Sullivan Court explained that the First Amendment protects speech. And "public" figures are not protected from false speech unless it was published with "actual malice." In cases that followed, the Court refined who is a "public figure." The Court concluded in Gertz v. Robert Welch Inc., that private persons may sue for defamation without proof of actual malice, that is without proof that the statements were both false and either published knowingly or with reckless disregard for the truth. 

So we have a dichotomy in the area of defamation. A private person may recover defamation damages more easily than public figures, like Lindsey Lohan


In the age of print and broadcast media, that is the 20th Century, the spectre of defamation may have constrained the publication of information. When the publisher has potential liability for what is published, there will be protocols, practices, and processes in place for fact verification. More so, however, the print and broadcast media of the past were limited by space. There are just so many pages in a newspaper and so many minutes in a broadcast. Editors made decisions about what was sufficiently important to include. 


The Internet has vastly expanded the ease of publication. The Internet has virtually unlimited space. The mugshots are not defamatory, they are factual information. An arrest was made. However, the Internet providers that publish these are not constrained by the space and accessibility limitations of the print media. The availability and accessibility make this kind of publication easy. With the potential for advertising on each site "page" and the benefits enjoyed by those who attract "hits" or "page views," the incentive is to publish as many pages as one can. 


Some became troubled or offended by the postings that are made on such sites, and some of those have sued. A few recovered on the theory that websites were "publishers." See Stratton Oakmont v. Prodigy Services, 1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995) rehearing denied 1995 WL 805178 (Dec. 11, 1995).

After the Prodigy Services decision, Congress passed the Communications Decency Act of 1996. This includes specific language regarding "publisher" states:



"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" (47 U.S.C. § 230)


The next year, The Federal Fourth Circuit Court of Appeals interpreted that statute in Zeran v. America Online, and concluded that "by its plain language, section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." The court held that these sites cannot be held responsible for the comments of their posters. The Fourth Circuit is Maryland, North and South Carolina, Virginia, and West Virginia.

So, the evolution to a digital world has not been seamless. Judicial application of existing law in the 1990s led to new legislative provisions. That refined the rights of websites and provided protection to those who would provide a platform for publication of information by private individuals. The evolution has not ended, however. 


In 2013, Kevin Bollaert was arrested for running a "revenge porn" site on the Internet; in February 2015 he was convicted. His crimes included identity theft and extortion. He was prosecuted after California passed a law criminalizing the posting of "identifiable nude pictures of someone else online without their permission and with the intent of causing serious emotional distress or humiliation." 


In a similar manner as the mugshots websites, he operated two websites, one which allowed anyone to post any person's picture, and sought to be protected under 47 U.S.C. § 230. The second site offered a service that would remove those photos from the first site for a fee. There will be those who will argue that Mr. Bollaert's websites were merely a platform, upon which third parties posted material. 


However, as we have seen in other examples, the change to a new paradigm like the Internet does not necessarily prevent liability under existing laws, such as extortion. 


This conviction may seem at odds with the federal immunity recognized in Zeran. The arguments on appeal are likely to submit that 47 U.S.C. § 230 protected Mr. Bollaert's right to maintain websites upon which the public posted this material. The operators of other Internet platforms may watch the review of this prosecution and the application of section 230. Is the immunity in that law in conflict with the California law? 


In another recent incident reported by the Washington Post, a lady was dissatisfied with services provided by a dog training expert. The lady took to Yelp to inform other consumers about her experience. The posting she made has led to a lawsuit against her by the dog training business, seeking $65,000 in damages. The owner alleges that the lady's comments were "false and damaged her small business." 


This example is slightly different. Yelp, the platform owner, is not being sued regarding the dog-training posting. However, it is interesting that Yelp did remove that negative customer review from the dog training business' Yelp listing. Anyone that has visited these sites like Yelp will know that there are a great many negative postings on many company pages. Why and how website providers like Yelp conclude it is appropriate to remove some comments and leave others is curious. 


The courts will continue to struggle with the frontier that is the Internet. Issues of privacy and defamation will remain in conflict with the freedoms of expression that define us. There will remain opportunities for information on the Internet to be amended and refined, perhaps even manipulated. Pictures will continue to be posted on the Internet following arrests, without the benefit of time, discovery, and defense. In the court of public opinion, it may continue to be difficult for people or businesses to defend their honor and reputation. 


Mr. Justice Brandeis, almost one hundred years age, explained the remedy for offensive speech, in Whitney v. California, 274 U.S. 357, 377 (1927). The freedom of expression in most instances will prevail. Justice Brandeis said "if there be time to expose through discussion the falsehood and fallacies, to aver the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."


Justice Brandeis could not have foreseen the Twenty-first Century paradigm that is the Internet. But today, anyone can publish on the Internet. We may individually lack the market penetration of Wikipedia, Yelp, and others. But anyone can use these same providers to post their own perceptions, though these providers ultimately decide whether your postings remain or are removed.


Additionally, anyone can write and publish what they wish in a forum such as this blog. The opportunity to have "your turn" is at your fingertips. The defense of "more speech" has perhaps never been as accessible. Admittedly, the danger remains that our individual speech may be lost in the vast cloud that is the Internet. 


The access to Internet "equal time" may be perceived as sufficient in the abstract, but is it sufficient when one is the victim of cyber-publishing ("bullying") by persons unknown? As social media evolves and expands, will admissibility rulings in workers' compensation proceedings take into account reliability of source, authentication of publication, and afford the due process of cross-examination? Will appellate courts do their own research after the due process of trial and make decisions on that research from the world wide web?


The Internet will challenge us all. As it evolves, we will have access to information, concerns about authenticity, questions about sincerity of posters, and doubts about fairness. It will be interesting to many, but possibly humiliating, embarrassing, or otherwise damaging to some. 

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