The fall of libel and the rise of privacy – Michael Cameron

1 03 2011

As traditional libel actions fall by the wayside, there seems to be an increase in actions over material posted on the internet – at least in the USA. New York-based media lawyer Michael Cameron* surveys the landscape, as seen from the MLRC conference in October 2010

What if the world no longer needed libel lawyers?

This was the frightening concept that greeted attendees at the biennial Media Law Resource Centre (MLRC) media law conference held in Virginia in October 2010.

On the face of it, the news was grim for the women and men who make their living litigating over the reputations of the good, bad and unappealing.

However, the outlook in the longer term may not be that bleak, given the burgeoning phenomenon of digital defamation and the privacy implications of social media.

In 2009, out of the hundreds of filings in various state and federal courts, just nine defamation matters went to trial in the USA, a staggeringly low number in historical terms.

Traditional media outlets are enjoying a rare peace. Even the venerable New York Times, the organisation whose defence of a libel suit brought by a man named Sullivan in 1964 established the modern jurisprudence on the subject, has hit a purple patch.

As of early October, the New York Times did not have one outstanding libel claim against it in the entire country.

What could account for the apparent demise of the libel plaintiff? Where have the aggrieved complainants gone?

Among the potential answers mulled over by conference attendees was the recession and the cost of bringing an action against a media company and the disincentive this must be for potential plaintiffs – in a land where costs are rarely granted to the victorious party, even if damages are awarded.

Another suggestion: in the four decades since New York Times v. Sullivan, public figure plaintiffs have finally worked out that they are on a losing bet in this country and taken their grievances to more plaintiff-friendly surroundings.

A more plausible theory held that complainants had more options available to them in the digital age.

Internet publication provides media companies with the ability to quickly redress an erroneous slight on someone’s character, at little cost or inconvenience.

Media entities are using a variety of web-based mechanisms to assuage the potential claimant.

The Times, for example, will attach an “Editor’s Note” to the web version of an article to allow the subject of the article a form of redress.

The Editor’s Note is a curious hybrid – neither a correction nor an apology, but an opportunity for the aggrieved to get on the record their version of the facts.

Other conference attendees report that their clients will happily and quickly remove an article in its entirety from the web at the slightest whiff of litigation.

The attempt by people to clear their names on the web, or at least massage the results of a Google search, is an issue occupying more time for in-house counsel.

And it has created a whole new industry of reputation-restoration firms.

The latest example is the threatened class action announced by a British firm called KwikChex against the website TripAdvisor.

The self-described “reputation management company” is seeking to achieve some form of redress for those hotels it says have been unfairly reviewed on the popular travel site.

The dangers created by user-generated content were a popular discussion topic at the three-day conference.

There was much concern over the future of the Communications Decency Act in the US, in particular section 230 which in essence allows media websites the ability to publish unedited contributions from readers with no liability for the content of those contributions.

Unlike the law in the UK or Australia, a website publisher in the USA cannot be held liable for defamatory comments, if those comments are published without editorial oversight.

This protection does not extend to websites that solicit particular comments or edit comments in such a way to make them more prominent.

In the TripAdvisor controversy, it has been suggested that the website may not be automatically protected by section 230 because of its editing process which gives prominence to particular hotel “horror stories” above other entries.

The proliferation of social media websites is also creating a lot of business for libel lawyers.

While there is a relatively small amount of settled case law, the anecdotal evidence suggests an increasing number of actions involving social media websites (e.g. Facebook, Twitter, etc) over the last two years.

A proportion of the recent cases involve consumers who have taken to social media websites to complain about goods or services.

Typical is a case in Michigan: T & J Towing v Kurtz. Justin Kurtz, a college student in Kalamazoo was angry when a local towing company removed his car from his apartment complex car park.

Kurtz claims he was legally parked. He did what many other college kids would do: he expressed his anger on social media, setting up a Facebook page called “Kalamazoo Residents against T & J Towing.”

The group has more than 10,000 members, many of whom have added their own towing horror stories. T & J Towing filed a defamation suit, claiming it had lost business as a result of the Facebook page.

The Twitter craze is also creating business for media lawyers. “Tweets” may be limited to 140 characters or less but they are still getting people into trouble.

Reality TV star Kim Kardashian (pictured) found out the perils of twittering after she tweeted to her four million “followers” in December 2009:

“Dr. Siegal’s Cookie Diet is falsely promoting that I’m on his diet. NOT TRUE. I would never do this unhealthy diet! I do Quick Trim.”

And also:

“If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!”

Dr. Siegel has begun defamation proceedings in Florida State Court against Kardashian for, among other things, describing his product as “unhealthy.”

Dr Siegal also alleges that Kardashian was motivated by commercial reasons, as she is a spokesperson for Quick Trim (a rival dieting product).

The digital age is also creating new privacy issues.

People who are angry over private facts being publicly revealed on social media web sites appear to be increasingly turning to the courts.

In a Californian case, Moreno v. Hanford Sentinel, the plaintiff wrote disparaging comments about her hometown on her MySpace page:

“The older I get, the more I realise how much I despise Coalinga”.

Her old high school principal saw the rant and submitted it to the local newspaper for publication.

The plaintiff brought a claim for invasion of privacy, claiming the newspaper publication damaged her family’s business and caused them to leave town.

The court rejected the claim, finding that someone who posts to a social networking has no expectation of privacy.

This stands in contrast with Pietrylo v Hillstone Restaurant Group, a New Jersey case in which two employees were sacked after their manager found their comments on MySpace.

The manager had convinced a third employee to hand over the password to the private MySpace page.

A jury returned a verdict in favor of the plaintiff, finding that the employer had violated state computer privacy laws and the federal Stored Communications Act.

The jury also found the company liable for invasion of privacy.

The differences in intergenerational notions of privacy was another interesting topic.

Can people who post their inner most secrets on their Facebook page have an expectation of privacy? How many participants do you require before a “private” networking site becomes public?

The conference is a co-production of the Newspaper Association of America, National Association of Broadcasters, and Media Law Resource Centre.

It brings together in-house media law advisors and outside counsel from across the USA, Canada, Great Britain and Australia, as well as a smattering of lawyers from continental Europe and Asia.

For First Amendment-loving Americans, the conference provides a chilling overview of the latest media law excesses in Britain.

The issue of privacy continues to vex those American lawyers advising clients across the continents.

Delegates were awed by the efforts of privacy advocates in Europe – including one case in which a young German woman was deemed to have a right not to be filmed on a public street while drunk.

Dutch authorities are also mulling over the prosecution of a local newspaper for publishing a photo of a child, the lone survivor in a Libyan air crash, on a hospital gurney in Tripoli.

While others might think this was an event worth celebrating, under Netherlands law the newspaper was required to seek the unconscious child’s permission prior to publication.

There was some light relief.

In recounting the infamous Max Mosley lawsuit against News of the World, one English delegate pointed out that the Formula One boss emerged victorious from his privacy trial in part because the newspaper had said the prostitutes filmed with him were wearing Nazi uniforms when, “as everyone knows” the uniforms were in fact from the Luftwaffe in the early 1930s – a time when German airmen were not required to be members of the Nazi Party.

*Michael Cameron is in-house counsel for the New York Post.

The Gazette of Law and Journalism is Australia’s leading online media law journal.  It has, since 1986, been covering court cases, legislation and policy issues that affect the media.  It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.

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1 03 2011
The fall of libel and the rise of privacy – Michael Cameron … | World Media Information

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