Say one day you leave a flame-breathing angry comment on a website. Could you then be sued for libel?
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Whenever you leave a comment, you are tacitly agreeing to that site’s terms of service. The ToS usually prohibits libel and defamatory remarks, and states that your identity will be given up in court if pressed.
ToS is the same reason you can’t sue Flickr for losing your pictures or Gmail for losing an email. (Well, you could, but you couldn’t win.) Both have a ToS that says they’re not liable for lost data.
The website that hosts your comment is responsible for the defamation and, thanks to that ToS, can go after the individual commenter.
Commenters can also be directly sued.
In most cases, the offending comment is simply purged from the site and from public search engine results.
Don’t remember consenting to anything of the sort? That’s because ToS agreements are usually hidden within the legalese portion of a site. On the NOW site, it lives in a section literally called Legalese.
This month, blogTO announced it was being sued for a presumably libelous comment.
The blog’s publisher, Tim Shore, has repeatedly told me and others that he can’t comment on anything related to the suit. But on Twitter he’s revealed this mystifying bit of information:
“Anyone recommend a good lawyer? blogTO is being sued by a local business for comments some of our readers left about them on our site.”
So the site is being sued over a commenter’s remarks? Not exactly clear. But it could be the case. blogTO doesn’t have a terms of service at present. Instead, a small disclaimer says, “Comments and entries represent the viewpoints of the individual and no one else.” Whether this is enough to seek damages from the specific commenter is for the judge to decide.
There are obvious problems with ToS agreements. If, say, someone in Somalia libels a person in Canada, or vice versa, who will show up to face the charges and in which jurisdiction?
Earlier this year, (former?) Aerosmith singer Steven Tyler tried to sue a bunch of anonymous bloggers for impersonating him, sharing private facts, making false statements and other online infractions.
But when none of the anonymous bloggers appeared before the judge – did they even know they were supposed to? – the case was thrown out. Anonymous commenters would likely experience a similar fate.
Of course, there’s also the highly publicized case of the so-called skank blogger, which involved a New York City woman who sued Google, the owner of blogging software Blogspot, to reveal the identity of the blogger defaming her.
She won the case, but it doesn’t technically set a precedent. What if the skank blog were on another blog network not owned by Google, but by an anonymous company in Venezuela? It’s less likely that offending bloggers on such networks can be identified.
Threatening a blog with a lawsuit most times works like a cold shower – the blogger feels the libel chill and purges any objectionable content from his or her site.
But as the Internet becomes more crowded, that trend is reversing itself and lawsuits are actually going to court. So culpability in libelous commenting or blogging on Twitter and all kinds of other sites will need to be worked out. It’s a media law grey area that needs to become black or white very soon.
joshuae@nowtoronto.com
