Tuesday, July 22, 2008

Oh No, We're Gonna Get Sued

A long time ago, my father-in-law used to send us videotapes of The Late Show With David Letterman. In the show, Dave would make a joke about some business or person and a little choral piece that said, "oh no, we're gonna get sued" would play. Dave could get away with jokes at the expense record company weasels, famous stupid people, or corporations because he's a comedian, has a legion of lawyers, and deep pockets from which to pay them. Comedians can say things in the service of humor that others may not get away with.

Bloggers, on the other hand, cannot say just anything they want. In fact, not only can they not say whatever they want but they can't allow their commenters to say just anything either. A recent article which I came across via Digg mentioned that lawsuits against bloggers are on the rise. The thing about the article which caught my attention was the fact that the first person mentioned was being sued for something someone else said, not for something he himself wrote. The reason this fact struck a chord with me was that a very similar situation has happened to me.

About a week or so after I shuttered my former blog, I received notification via comments from a law firm based in a European country. They were threatening me because of an anonymous comment made about one of my posts. The post in question was about an automated movie rental service which had just opened up a branch near my home. In my post, I spoke positively about the service in terms of its convenience, easy to use on-line reservation system and low rental fees. I mentioned looking forward to using it. The post itself could have been seen as a mild endorsement of the service.

Some time later, an anonymous person commented that the service was a rip-off and linked to an article which mentioned business practices by the company which were shady or unethical. I allowed the comment through because the article looked genuine despite the fact that I didn't feel the situation related to people who used the service like myself but rather to people who purchased the franchise. For all I knew, it was true, though I also wondered if someone had a grudge against the company after a bad experience.

The letter from the law firm that I received stated that I would be held liable for the slanderous comment if I allowed it to remain. It also said I was not to share the correspondence from the law firm with anyone. In other words, they didn't want me to post their threat. I will say that the anonymous comment about this company's untrustworthy nature felt like it may have been far more factual after that letter. What sort of company trolls the internet looking for anything negative said about it and threatens to sue anyone who says such things? In my book, it's a company with something to hide which labors long and hard to keep covering up the truth.

I discussed the situation with my CH and he advised me simply to delete the threatening comment from the law firm and ignore it. Since I'd already been through a lot of hassles about my (former) blog because of in-laws who read into what I wrote and saw (imaginary) attacks against a particular in-law, I'd had enough hassle with my blog, so I simply decided to delete the entire post and all comments. I figured that, if I was going to be bullied into removing a negative comment, I wasn't going to leave the positive post sitting there. I also decided that I'd no longer use the movie rental service once the pre-paid card we had to buy when signing up was used up.

Neither my CH nor I felt that a person could or should be sued for what someone else said. After all, I didn't say anything negative about the company. It turns out, however, that we are responsible not only for what we say on our blogs, but for what we allow others to say as well. When I received the threatening letter about the comment on my blog, I thought it was simply meant to scare me into removing the comment and nothing would come of it regardless of what action I took. The article linked above makes me reconsider that conclusion. I'm not sure if a European law firm can sue me while I'm blogging from Japan, but I can't say that I'm glad that I didn't test the possibility.

My feelings about the fact that bloggers can be sued for their content are mixed. On the one hand, I believe people shouldn't be able to say whatever ugly things they wish about someone, particularly if the intent is clearly a wish to harm rather than offer an opinion, experience or personal conclusion about a service, product or person. In general, I believe that freedom of expression ends at someone else's (reasonable) right to privacy and respect. If bloggers make the effort to ensure their subject's real names cannot be inferred either by making associations between the blogger and the subject, or by association with their work, then I'm all for freedom of expression. Of course, writing that a company is disreputable and linking to an article about it is completely within the realm of free speech.

There's something oddly legitimizing behind bloggers getting sued, particularly for comments or content that appear on their site but are not from the blogger herself. Suing bloggers is a way of saying that they are publishers (and not piddly, insignificant hacks) and therefore are responsible for their content just as any other publishing or media entity is. This may seem like a warped way of looking at the situation, but being threatened with legal action for your blog's content says that blogs matter. They matter enough to invest in lawyers to try and shut them up.

Some people may feel that the best course of action when threatened by lawyers to remove or alter content is to fight so that the right to freedom of expression remains intact. Many people may feel that they should stand on principle and battle it out and such people may feel that I was a coward for simply deleting the post and all the comments rather than "standing up for what's right." After all, if everyone just rolled over like I did, we'd be well on our way to being censored. To this I'd say that some things in life are worth fighting for on principle and some are not.

If my former blog had been a different entity and served another purpose, I may have fought the good fight. The blog wasn't about exposing bad business or reviewing companies that provided services. It was simply a modest creative outlet for me (as is this blog). Its role in my life was that of an aside, not a core component of my existence and any particular post was relatively insignificant in the scheme of things. I couldn't see investing my time, emotional energy, or money in defending an anonymous commenter's opinion just to prove a point. If that makes me too tired or cowardly to stand up for the rights of people to freely express themselves, then so be it.

I often have the impression that people spend far too much of their time and energy proving points that have no impact in the larger scheme of things rather than directing that energy toward positive and constructive outcomes. In such cases, it's more about ego than about ethics. There are things in this world that are very important and I think some battles are very worthwhile, but many others are just ways of distracting ourselves from the fact that we aren't involved in more meaningful pursuits and deluding ourselves into believing we matter so much that we deserve the power to do whatever want.


Liz Stone Abraham said...

You've made so many interesting points here, but for now I will just say thank you for this cautionary tale. While I it's hard to imagine anyone caring that much about what I write in my blog (I'm not worthy, blah blah), your story forces me to see how someone might happen upon it one day and take serious issue with something there. Blogs may seem nothing more than vainglorious ephemera to the majority, but as you point out, companies are beginning to take notice.

Wally Wood said...

What you seem to be talking about is libel. According to my AP Stylebook, "Words, pictures or cartoons that expose a person to public hatred, shame, disgrace or ridicule, or induce an ill opinion of a person are libelous. Actions for civil libel result, mainly, from news stories that allege crime, fraud, dishonesty, immoral or dishonorable conduct, or stories that defame the subject professionally, causing financial loss either personally or to a business."

Because I am not a lawyer, you should take the rest of this cautiously, but I think there are a couple issues: If another blog libels a company and you quote the libel, you can still be held. Libel laws vary all over the world, so it would be interesting to see if a European law firm was going to go after you under Japanese law (because you live in Japan), English law (which I believe is more strict than American), or some international law I've never heard of.

Under American law, for what it is worth, truth is the defense for libel. If a company sells you shoddy merchandise and refuses to honor its money-back policy, you can blog about it as much as you want. The company may still threaten you (someone can always threaten you), but you can defend yourself.

CMUwriter said...

@ Wally Wood: That is all true, and points I was going to bring up, but the company would have to prove actual malice in court, that is the company would have to prove that Orchid was purposely trying to cause them to have a bad name and lose money. I think that would be hard.

@ Orchid: After reading that post I have come to one of two conclusions. The first is your family members don't know about this blog, and it is a secret blog, which makes it just that much more exciting for me to read. Or secondly, you just don't give a good rip and started a new blog, regardless of that specific family member's wishes. I don't know which one could be true, or if it is something entirely different, but I am glad that you're blogging again, although I need to comment more.

Orchid64 said...

Thanks to all for the comments. :-)

Re: CMUwriter's comment. I think it would have been very hard to prove any intention to damage them since my original post was positive.

Also, this is essentially a "secret blog". That is, I haven't told anyone except the people who I e-mailed about it or chose to let in on it. That's not to say that others can't find it as searches will bring a few people my way.

However, I have not told my in-laws about it and I have no plans to. While I don't plan on slagging off on anyone in a semi-anonymous state, I also don't want to feel like someone is looking over my shoulder while I write and scanning for notions they can twist and contort into digs at them. So, it's sort of a public secret. ;-)

'badmoodguy' is mike said...

Regardless of whether the libel is true or not, if the offended person/company has deep enough pockets to push the issue they can tie something like this up in court for all eternity and financially ruin the blogger.

Threats are meaningless, really, unless acted upon. It is the acting upon the threat that can be the big problem. We live in a very litigious society, at least here in America, and this kind of thing is not unheard of.