More than 70 percent of the online adult population in this country uses social media, either to comment on life as the world rolls by or to influence the direction of the roll, according to a recent Pew Research Center study.
People chime in on, and with, what they had for lunch, opinions on Obamacare and contributions to breadedcats.com, where followers post pictures of cats wearing bread hats. We are a long way from the Gutenberg press: Just about anybody can get a blog up and running, and some people operate multiple Facebook sites for themselves, their businesses and their pets.
Periodically, someone on the Internet highway gets hit with a suit for defamation or harassment. For example, in Espinoza v. County of Orange, the February 2012 verdict was against an employer on a harassment claim arising from an anonymous blog maintained by the plaintiff’s co-worker. More recently, in Walsh v. Latham, a complaint arising from Facebook posts survived an anti-SLAPP motion.
Some litigation arising from online publications can be attributed to plain bad judgment. But most of the law related to defamation was developed in the pre-Internet age, and even for the cautious, the law related to protections given to online posters and publishers is not always clear.
On Jan. 17, in Obsidian Finance Group LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014), the Ninth Circuit offered some guidance on First Amendment protections for those who blog on matters of public concern, holding they have the same level of protection the U.S. Supreme Court has recognized for commercial print and broadcasting media.
Defendant Crystal Cox’s blogs, obsidianfinancesucks.com and summit1031sucks.com, had a tone familiar to any regular Internet user. One post that gave rise to the defamation suit read: “You are a Cruel, Evil, Discriminating Liar. And I intend to Expose every Dirty deed you have ever or will ever participate in … “
The district court concluded most of Cox’s posts constituted hyperbolic opinion and were therefore not actionable. However, one post, containing factual allegations, went to the jury. Because Cox had not offered evidence of her status as a journalist, the trial court did not instruct the jury that the plaintiffs were required to establish negligence or actual damages. Cox appealed after the jury awarded $2.5 million, arguing the court should have instructed the jury in accordance with Sullivan and/or Gertz.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that a public official suing a media publisher for defamation has to show the statement was published with “actual malice,” that is, “with knowledge that it was false or with a reckless disregard of whether it was false or not.” The court subsequently applied the same standard for claims by public “figures,” in Associated Press v. Walker, 388 U.S. 130 (1967).
In Gertz v. Robert Welch Inc., 418 U.S. 323 (1974), the court held that someone not a public figure—aka a private citizen—only had to show a media publisher’s defamatory statement was made negligently. In Gertz, the defendant publisher had described the plaintiff as a “Communist fronter” and implied he had a criminal record. The Supreme Court granted certiorari “to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen.” The court held that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”
In Obsidian Finance, the Ninth Circuit noted “every other circuit to consider the issue has held that the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers.” The plaintiffs argued that Gertz applied only to publications concerning matters of public concern, and the Ninth Circuit concluded it was not necessary to decide whether the Gertz rule applies only to matters of public concern because it found that Cox’s blogged allegations that a court-appointed bankruptcy trustee had committed tax fraud qualified. “Because Cox’s blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently.” The court remanded the case for a retrial, so that a jury could decide the case using the Gertz negligence standard. Given this ruling, lawyers defending bloggers from defamation claims should assert the Sullivan and Gertz standards, and be sure to request appropriate jury instructions.
Sailing the Internet After Obsidian Finance
Online commentators may still have a hard time figuring out what constitutes a matter of “public interest.” In Gertz, the Supreme Court noted the “tension” between “the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury” and “[t]he need to avoid self-censorship by the media.”
In our current Web-based world, exactly how that tension will be resolved by courts under various factual circumstances remains to be seen. Some recent decisions have suggested that online posters will be given somewhat more free rein because nobody takes blogging rants seriously anyway: “[B]ecause Rogers’s alleged defamatory statements appeared in a section of the Craigslist Web site entitled ‘Rants and Raves,’ the reader of the statements should be predisposed to view them with a certain amount of skepticism.” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696-97 (2012).
Now that Obsidian Finance seems to have given bloggers the same status as major media with respect to defamation standards, can a blogger or Facebook user refuse to divulge his or her sources? In O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006), the court held that an online newsmagazine publisher could invoke California’s shield law in refusing to disclose the source of information about a new Apple product, but the court did not suggest a casual Facebook user could expect the same protection or say when a blog becomes a periodical.
If the area seems complicated to courts and lawyers, it’s got to be more so for the do-it-yourself Yelper or Facebook user. The law related to online publications promises to become ever more complicated and may give rise to a new generation of “night lawyers” historically employed by major media to comb through the next day’s edition to screen for potential claims in the making. For now, the best advice for clients may be: If you think your post is going to aggravate somebody, run it by your lawyer first.
Sigrid Irias, principal at Irias Law, has more than 25 years of experience in civil litigation. She is an adjunct professor at UC-Hastings College of the Law and can be reached at email@example.com.