Today's ISN Sponsor: Repent Security Incorporated
www.cnet.com
Net libel suit raises free speech issues
By Courtney Macavinta
March 13, 1998, 1:40 p.m. PT
During a typically passionate
discussion on the Net, Stacy McCahan
called someone a liar--and to her
surprise, she was slapped with a
$5,000 libel lawsuit.
At the height of the controversy over
San Francisco's famed Critical Mass
bicycle-ride protest last year, the
debate naturally spilled on to the
Net. McCahan freely joined some of the
arguments, never dreaming it could
lead to the legal wrangling.
In February, McCahan quickly lost the
case in small claims court--where the
hearings are brief and decided by an
attorney acting as a judge. The
plaintiff, Ken McCarthy, a Web
consultant and freelance journalist,
argued that McCahan's post was
archived on the Net for any one of his
potential clients to see, possibly
killing his chance of landing
accounts.
On March 26, the San Francisco
Superior Court will hear McCahan's
appeal, which no doubt will bring the
bigger issues in the case to light.
Legal experts say the case is not the
first lawsuit to address online libel,
and it won’t be the last. But it does
cement a growing realization by Net
users who are accustomed to shooting
from the hip: what they say in chat
rooms, email, or on Web sites is not
exempt from the laws of the offline
world.
"Some people would compare the Net and
chat rooms to sort of the 21st century
speaker's corner in [a park]," said
Kevin Goering, a media lawyer at
Coudert Brothers.
"Maybe people don't put much stock in
what they read on the Net, so it may
not cause damage. But on the other
hand, it could go out to millions of
people," he added. "Clearly, a lesson
to the wise is that you can't just say
things, pass information along, and
not be held accountable."
Although some legal experts say Net
libel cases date back to the early
1990s, they are gaining more notice
now as droves of people are coming
online.
Still, online speech increasingly is
being held up to legal scrutiny. For
example, last month, a Los Angeles man
was found guilty of civil rights
violations for sending racist death
threats via email to 59 Asian college
students.
As with the hate email case, McCahan's
defense will partly rely on an
examination of Net culture and its
implications on free speech.
Online forums are know for their
robust, heated exchanges, in which
many of the speakers are anonymous. In
this spirit, McCahan's attorney will
argue that she has a constitutional
right to speak her mind and the truth
as she knows it. Based on a past
conversation with McCarthy, she
believed him to be a liar, she says.
"While this is a small claims [case],
there are some large principles
involved--mainly the First Amendment,"
said Karl Olson, McCahan's San
Francisco attorney. "The major thrust
of what we are going to say is that on
the Net, in chat rooms or on mailing
lists, people expect to see what the
U.S. Supreme Court has referred to as
uninhibited, robust, and wide-open
debate."
McCarthy's claims likely will echo a
higher-profile lawsuit unfolding in
Washington against Net gossip
columnist Matt Drudge and America
Online. They are being sued over an
allegedly libelous column about White
House adviser Sidney Blumenthal, who
wants the court to award him $30
million.
McCarthy's accusation is similar to
Blumenthal's. McCarthy will argue--as
he did in small claims court--that
McCahan knowingly made a false
statement about him, which could
damage his reputation.
To win a libel case, public figures
such as Blumenthal have to prove the
statement in question is a lie, and
that it was told with malice.
McCarthy's burden of proof is less
stringent.
The dispute between the two Netizens
started when McCarthy, identifying
himself as a journalist, sent McCahan
an email message asking for further
details regarding a post she made to
the "sf-critical-mass" mailing list.
McCahan was one of the Critical Mass
riders who worked out an agreement
with San Francisco Mayor Willie Brown
last July to ease the traffic
congestion caused by the monthly
ride--in exchange for new bike lanes
and other concessions.
McCarthy says he was working on some
investigative articles about Critical
Mass for his Web site, E-media, and
emailed McCahan three times requesting
an interview with her. The two then
exchanged one email, and later had an
argument on the phone, both say.
Then, on July 30, McCahan posted to
the "sf-critical-mass" mailing list a
message entitled "Ken McCarthy is a
liar--be warned." Her post accused
McCarthy of inaccurately stating the
details of their phone conversation in
another post to the list, which
actually had been forwarded to the
mailing list by another man, according
to McCarthy.
The he-said, she-said battle ended six
months later, when McCahan received
notice that she was being sued for
libel.
"That statement of hers was listed as
the sixth article that came up on
HotBot when my name was searched,"
McCarthy said today.
As of later today, however, the post
no longer turns up on HotBot searches.
"There is potential economic damage to
me. All I have is my reputation. There
are a million guys now who can claim
to do what I do," he added. "The
Internet is not this alternate
reality--it should be subject to the
same laws and rules of conduct as the
real world."
McCahan thought he made false
characterizations of her online as
well, but she would have never though
to sue him. The experience has made
her afraid to communicate with others
on the Net. "I'm totally afraid to get
involved again. I feel like my
constitutional rights have been
violated," she said.
Goering says court decisions in any
libel case can have a chilling effect
on speech.
"Some courts may be tempted to
say--which would be dangerous--that
the Internet has more potential for
damage, and so you need stricter
rules. That could deter free speech,"
he said.
"Courts may soon find it necessary to
redefine who is a public figure on the
Net," he added. Other legal experts
say all Net users could be considered
public figures, which would make libel
suits more difficult to win because
plaintiffs would have to prove the
defendant had brought them harm on
purpose.
"Some people on a mailing list or
online may be public figures [within
the medium]," said Lance Rose, author
of NetLaw.
He said new and old Net users must
realize that when they speak online,
they become publishers. Despite
analogies that the Net is like a
living room where people can create
"virtual communities," Rose says it
isn't a safe haven from the law.
"What's really happening is that we're
still in the middle of the process of
people pouring online. These people
have to develop a better sense of
where there are socially when they are
talking online," he said. "You should
consider yourself to be publishing to
the world and be careful about what
you say."
If you wish to receive ISN directly, mail majordomo@sekurity.org with "subscribe isn".
ISN is a non-profit list designed to keep Security Professionals aware.
Received on Sun Mar 15 17:14:15 1998