Saturday, July 24, 2010

Henderson NC Blogger comments cause Libel lawsuit

A cutting edge lawsuit is happening in Henderson North Carolina, testing the responsibility of bloggers to be responsible for what they publish, and an injured person’s ability to get the courts to force the blogger to disclose the identity of those who have written unlawful statements.

This brouhaha started when an 85 year old lady was arrested, making the headlines "Arrest made in elder abuse case".

On August 13, 2009, the 85 year old Thompson was arrested and charged with:

• Three counts of exploitation of a disabled person/elder;

• One count of felony larceny for the theft of electricity from Progress Energy;

• and two counts of possession of a stolen electrical meter.

The core issue is whether the landlord had a "doody" to oversee the operations of the old folks home. Here is an example of a bathroon at the boarding house, quite crappy:

Can elderly abuse charges extend to a landlord?

The discussion strayed beyond the core story to the property owner who was accused of culpability in the crime.

The landlord (a former Henderson public figure) responded by suing for Libel and demanding that the identities of the people who published libelous comments be disclosed.

The judge ruled that the comments were indeed libelous, and the names of some of the commenters were published in the Henderson newspaper.

This article note that an NC judge has ruled that a blogger, just like a newspaper, is responsible for what they publish, and ordered the blogger to disclose the identity of the alleged wrongdoers:

“The court stated in the June 28 order that it balanced the anonymous posters' First Amendment rights to free speech against Hester's basic case for defamation and found that the subpoena should not be quashed.”

It’s not easy to find a bloggers identity and many people misunderstand section 230 of the DMCA, a law which immunizes online service providers (like AOL and NCOL) from liability.

Many people misunderstand and believe that a blogger is an online service provider.
Much case law has suggested that bloggers, like any other publisher are responsible for what they publish.

In this case, the injured party is a former Vance County commissioner.

IANAL, but I’ve heard that it’s hard extremely hard for a public figure to win a libel lawsuit because limited purpose public figures have the burden to show that the comments were made with malice, quite a hurdle . . .

Responsibility of the publisher?

I'm not a lawyer, but the evolving law on this issue and section 230 of the DMCA only absolves a publisher of responsibility only when they take a totally "hands-off" approach, and allow any and all comments, no matter how offensive and nasty.

As I understand it, once the online service provider starts taking an active role in monitoring the blog comments, they become responsible for anything that they publish that is unlawful.

In the instant case, it appears that the host of the web site "Home at Henderson" is indeed screening comments:

34.why did my post get deleted? Comment by LUCY!!!! — August 14, 2009 @ 11:14 am

36.Lucy, I sent you an email. Read it. Comment by Jason Feingold, Ed. — August 14, 2009 @ 12:24 pm

It will be very interesting to see how this turns out, especially in light of the constantly evolving case law surrounding this complex and important social issue . . . .