Read an Excerpt
Blogging & Tweeting without Getting Sued
A Global Guide to the Law for Anyone Writing Online
By Mark Pearson Allen & Unwin
Copyright © 2012 Mark Pearson
All rights reserved.
ISBN: 978-1-74269-710-9
CHAPTER 1
DOWN TO BASICS: THE LEGAL RISKS OF GOING GLOBAL IN A FLASH
Twitbrief: Ups and downs of instant worldwide publication. #impulsiveness #liability #jurisdictions #FirstAmendment #publicinterest #malice
When sixteen-year-old Texan teenager Alison Chang flashed a 'V' sign in a travel snap taken by her church youth counsellor, she would never have imagined her image would be posted on a bus stop on the other side of the world, triggering an international legal dispute over privacy, libel, contract, negligence, copyright and jurisdiction.
The multinational conglomerate Virgin Mobile had lifted the picture from the photo-sharing site Flickr as part of a billboard advertising campaign in Australia. It had plastered the slogan 'Dump your pen friend' above Alison's head and had put the caption 'Free text virgin to virgin' right under her image.
Alison's mother, Susan, sued on her behalf, along with the photographer, Justin Ho-Wee Wong, on a range of grounds in the US District Court in Texas. Mrs Chang claimed her daughter had been distressed after friends told her about the image, and said the captions had embarrassed the family in their church community. She said Alison had suffered 'humiliation, severe embarrassment, frustration, grief, and general mental anguish' through the misuse of her likeness.
Alison certainly seemed surprised when she was alerted to the Virgin campaign in a Flickr forum. Writing under the pen-name 'Aleeviation', she posted: 'hey that's me! no joke. i think i'm being insulted ... can you tell me where this was taken?'
But after a two-year legal battle and considerable media attention, the court held it had no power to rule on the matter because the Singapore-based Virgin Mobile did not have enough of a connection with the state of Texas.
* Ancient laws for a digital era
There are many wonders of the Internet and social media we already take for granted. Just a few years ago a newspaper or magazine publisher would have to spend millions on printing presses and transport to reach an audience in just one city, and a reader would have to write a letter to respond to a story. Now, for next to nothing, we can reach a global audience on a hand-held device and start a conversation within seconds.
Our words and images transcend the world's borders and time zones and allow us to develop professional and personal relationships we could never have imagined last century. Magically, our creations are at once published instantly and archived forever. The downside is that these twenty-first-century digital marvels are mostly being regulated by the laws of a bygone era designed for traditional methods of publication: when newspapers were published in a single place, by a named person at a predictable time and the next day were used to wrap up the trash.
The decision in the Virgin Mobile case was bad news for Alison Chang's mother and the church photographer and might appear encouraging if you are worried about your legal liability in other places. But there have been several recent court decisions running counter to this one, so don't think you can post whatever you like from the sanctuary of your own country without any fear of legal consequences elsewhere.
Sometimes the same posting can trigger separate legal actions in different places. Courts and prosecutors might be at odds over whether the laws of one state or another apply to your online publication or social media posting. This legal area is known as 'conflict of laws' — and it is a specialised field of expertise. Sadly, legislators and judges throughout the world — with their nineteenth-and twentieth-century rituals and precedents — are way behind the pace of technological change and are finding it hard to adapt to the cross-border issues caused by Web 2.0. That's why we are getting differing decisions.
Some judges have tried to inject some predictability into their assessment of your liability from afar. A landmark case centred on a dispute between two companies over the use of the name 'Zippo'. One was a manufacturing company and the other an Internet news service provider. A Pennsylvania court developed a sliding scale to help it decide whether the web news service had enough commercial dealings in that state for the court to have jurisdiction. Lawyers will usually need to show some level of connection between you and the place of the legal action against you before a court can hear the matter. If you are selling your services in that jurisdiction, if you are blogging for a larger organisation trading there, or if you happen to be visiting there, it might amount to enough of a connection to make you answerable to the laws of that place.
* You're published where your material is viewed
The High Court of Australia became the world's first senior judicial body to rule on the time and place of web publication in a trans-Pacific dispute in 2002. In Dow Jones v Gutnick, judges had to decide whether Australian businessman Joseph Gutnick could sue US-based publisher Dow Jones in his home city of Melbourne over the Internet version of its weekly financial magazine Barron's. The magazine had 550,000 subscribers internationally, of whom only 1700 had Australia-based credit cards. Well known UK-based lawyer Geoffrey Robertson QC argued for the publisher that the article had been 'published from' New Jersey when it was 'uploaded', but the court ruled it was actually published every time it was 'downloaded' anywhere throughout the world. The decision gave Gutnick the right to sue for defamation in Victoria, his place of primary residence and the location where he was best known.
In the same year as the Gutnick decision, a New York District Court considered whether material was actually 'published' when it was posted to the Internet. In Getaped.com Inc v Cangemi, a motor scooter business claimed parts of its website had been copied. Cangemi argued the website was not a publication, but rather a 'public display' or performance. But Judge Alvin Hellerstein said, 'when a webpage goes live on the Internet, it is distributed and "published".'
* The long arm of cyberlaw
The Dow Jones v Gutnick decision shows just how long the arm of cyberlaw can be. In that case it stretched all the way from Melbourne, Australia, to allow a businessman to take suit against a publisher based in New Jersey, in the US. The same kind of thing happened in 2011, when a Californian court ordered US-based Twitter to hand over the name, contact details and location of a British-based local government councillor whom South Tyneside Council had accused of anonymously posting defamatory comments.
When lawyers talk about the 'where' element of an action, the legal term they use is 'jurisdiction'. The word can have a range of legal meanings, but for our purposes it applies to the location of your publication and whether a particular country's laws or courts have any authority over it — and you.
Early last century that was all fairly straightforward. Most media organisations were focused on audiences within well-defined geographical areas. Publishers and readers were covered by the same laws and court systems — at provincial and national levels. Even when a television network broadcast or a newspaper circulated across state borders, the media companies and their lawyers were usually only dealing with two sets of laws. However, the second half of the twentieth century introduced interstate and international media organisations — national daily newspapers such as USA Today and international broadcasters such as CNN and BBC World. Now, with the advent of the Internet and social media, you have to consider the legal implications of publishing everywhere, every time you upload your writing.
This does not mean the security police from a remote regime are likely to come knocking on the doors of bloggers in western democracies, arresting and extraditing you for punishment under their traditional systems of law. They do not normally have the legal authority to act outside their own borders. However, you might be called to account for your postings under their laws if you happen to travel there. And citizens in other countries can go to court and get a declaration against you in your absence, perhaps ordering you to pay a certain sum in damages for something you have published.
That happened to US citizen Bill White in 2003 after he had posted numerous highly defamatory allegations against former colleague Dr Trevor Cullen and others. Each time White's defamatory websites were taken down as the result of complaints, White had changed Internet service providers (ISPs) and published them again. Cullen took his action to the Supreme Court in his home state of Western Australia and won a declaratory judgment of $95,000. White did not defend the case and the damages had not been paid at the time of his death in 2004.
Under international treaties, nations with equivalent laws to those in your own country can seek to extradite you from your homeland to face trial and punishment for serious publishing offences such as the trafficking of child pornography or terrorism. This means foreign governments and lawyers might seek information about you from ISPs or social media networks based in another country, even for non-criminal actions such as defamation or privacy infringement.
* How hospitable is your host?
While the strict letter of international law might not give a country power to act, some governments and litigants put pressure on ISPs and multinational websites over content. For example, in late 2010 YouTube took down footage of a Turkish politician in a hotel bedroom with a female staffer after an Ankara court declared the video-sharing website would be blocked in Turkey if it did not comply. In another case, Yahoo! Holdings in Hong Kong surrendered information to Chinese authorities about reporter Shi Tao, who worked for the daily Dangdai Shang Bao(Contemporary Business News). He was jailed for ten years from 2005 for 'divulging state secrets abroad'. In 2008, the heavy equipment rental company Gremach sued Google's Indian subsidiary for defamation and obtained an order from the Bombay High Court demanding Google reveal the identity of an anonymous blogger called 'Toxic Writer' who had criticised Gremach on Google's platform Blogger.com.
Internet service providers' commitment to protecting users from hostile civil and criminal actions seems to vary according to where they are based and the commercial and political pressures of the moment. While some will take a stand on your behalf in the name of Internet freedom and privacy, you can never rely on them to keep your identity secret.
* Who carries the can?
Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. If you write for a larger organisation you share responsibility with your employer or client. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher — particularly if you are an impoverished freelancer.
In the twentieth century, large media organisations would usually provide in-house counsel to guide their journalists through any civil or criminal actions, as well as pay any legal costs and damages.
Most of the so-called 'legacy media' still do this today, so if you are a mainstream reporter or columnist thinking of going solo with your blog you might weigh this up first. Another advantage of writing for a large media group is that your work will be checked by editors with some legal knowledge and perhaps even vetted by the company's lawyers before being published. Either way, you might investigate insuring yourself against civil damages, although even in countries where this is possible premiums are rising with each new Internet lawsuit. Another option is to scout for liability insurance policies offered by authors' and bloggers' associations. Check out your options.
ISPs and providers of publishing platforms such as Twitter usually escape liability for their users' content, especially if they remain ignorant of its illegality. But jurisdictions vary on whether ISPs become responsible for the material once they have been informed that it is criminal or that it infringes upon someone's rights.
* Status update: it's posted and you're liable
The law might require your posting to reach just one other person for you to become legally liable for its content. (In the case of libel, it needs to be a third person beyond you and the person you are defaming.) You might think you are just corresponding with your cosy group of Twitter followers or Facebook friends — all with a shared sense of humour — but your remark can go viral very quickly when it is forwarded, retweeted or picked up by the mainstream media. That's exactly what happened when lawyer and academic Larissa Behrendt saw Indigenous Australian spokeswoman Bess Price appear on ABC television soon after watching a particularly graphic episode of Deadwood. She tweeted to her followers: 'I watched a show where a guy had sex with a horse and I'm sure it was less offensive than Bess Price.' As soon as the comments reached the mainstream media, Price threatened to sue. Behrendt apologised.
The lesson for us as bloggers or social media users is that our communication in cyberspace is not like chatting with a group of friends at a café. As soon as our postings come to the attention of our 'victims' or the authorities, the courts will hold us responsible for the original publication. Third parties will also be liable if they forward our message to others, but our responsibility for the act of publication rests with our first post.
Courts will consider the extent of republication when assessing damages. Sadly, if your words have gone viral you are likely to face a larger damages payout. But if others add to your words with more inflammatory material of their own, they carry responsibility for the new publication. Think twice before retweeting or forwarding the legally dubious material of others, because doing so makes it a new publication under your own name; at the very least you will share the legal liability with the original publisher. It is poor social media practice to retweet, 'like' or forward anything without first reviewing it thoroughly. That defamatory or criminal material might just be in the final paragraph of the article you have blindly re-sent, and you are suddenly liable for republishing it. The same has been applied to embedded links in your postings, particularly to criminal material. Some people have been held responsible for their hyperlinks to the offensive words of others. Canadian bloggers can rest a little easier, though. The Canadian Supreme Court ruled in 2011 that links to defamatory material will normally be safe as long as the libel is not in the actual letters of the URL.
* Are you being criminal, or just uncivil?
Lawyers and prosecutors will of course look closely at what you have published to decide whether your work is a criminal offence or might be subject to a civil suit. It is important to distinguish between these areas of the law.
Online publishers who commit crimes may face fines and a range of other punishments, which can include (depending on the country) execution, corporal punishment such as caning, imprisonment and community service. Serious publication crimes internationally include sedition, contempt of court or parliament, criminal libel, hate speech, breach of publishing restrictions, unlicensed publishing, fraud and various national security breaches.
Civil actions involve other people or corporations suing you for such things as defamation, breach of privacy, breach of confidentiality, misrepresentation, breach of copyright and breach of contract. If you lose a civil suit a court will order you to pay damages to the plaintiff or demand that you change your behaviour in some way. Judges do this by issuing an injunction to do — or refrain from doing — something. Such orders might insist you publish an apology or that you remove material from your website. Breaching or ignoring such an order becomes a criminal matter.
(Continues...)
Excerpted from Blogging & Tweeting without Getting Sued by Mark Pearson. Copyright © 2012 Mark Pearson. Excerpted by permission of Allen & Unwin.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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