Intent to harm vs. freedom to publish

Libel in the time of Weblogs 

Malice: a legal term describing the intent to harm. “Actual malice” is required to establish libel against public officials and is usually needed for punitive damages. It involves material that was known to be false.

As “libel law" develops in the Weblog age, defining what “publishing” is becomes more important. Libel is published written defamation (false statements of fact that damage one’s reputation).

But is it published

 “Distribution” isn't the same as “publishing.” Amazon can list an excerpt from a book in their advertising without concern for it being false and damaging; they are distributing the information, not publishing it.

But if a newspaper publishes a guest editorial that damages someone’s reputation by asserting a “fact” that is clearly untrue, it potentially subjects itself to libel suits and damages. It published something that it knew, or should have known, was false as well as damaging to the victim. It demonstrated actual malice.

Does a blogger “publish”? Probably. But, are comments following her posts “published” or “distributed?” The answer is obscure. Is the blogger responsible for the comments within her post? Probably to some degree; it’s not clear.

Defamation must damage

Defamation has to cause damage to be actionable in court whether it’s done in a newspaper or online. So, a blogger who asserts that “Mayor Righeimer eats worms” is probably safe from libel suits. (It’s also about as relevant and demonstrable as most of the constant complainers’ other assertions.)

However, blogging untruthfully that (hypothetical name) Bob Sanchez sells heroin as his second job, might result in an expensive suit if the accusation caused Bob’s customers to cancel their orders. In this case the phrase “in my opinion” might not protect the blogger – her statement of fact is verifiable and wrong. If she posts, “the Mayor has poor taste in neckties” she’s stating an opinion.

Defamation might be expensive

Say she posts, “Bob Sanchez should be fired from his primary job because his second job involves illegal drug sales.” If Bob gets fired; can he get libel damages from her when a court clears him of illegal dealings? The answer is; maybe. We’re getting more case law in this field.

There are some interesting twists, too, in the reputations of the publisher and the victim. If the victim has a scurrilous reputation, such as a physician who recently lost his medical license for egregious misbehavior, his recovery of damages is unlikely. The idea is that the victim’s reputation was difficult to damage more with a blog post. The same assertion about the Chair of the Water Department might be actionable.

The blogger’s reputation probably matters, too. If the blogger is generally applauded as a reasonable source of information, she may be able to damage a Fair Board members’ reputation with her post. If she is generally considered to be a “nut case” or “loose cannon” her ability to damage an honored citizen with a post is less. So a blogger might avoid libel trouble if she’s not taken seriously by most Costa Mesans.

A field with constitutional overtones 

And, the clash of the issues of personal dignity and First Amendment rights, as expressed by Justices Stewart Potter and Hugo Black, seem to be critical to internet libel cases.

Libel is growing in importance in blogging and social media, and the rules aren't yet clear.