Lawsuits aim at libelous bloggers

Rafe Banks III is an unlikely candidate for a leading role in cutting-edge media law.
A former district attorney, Banks is a partner in a general practice, four-lawyer firm in Cummings, Ga., a small city about 40 miles northeast of Atlanta.
But his role as a plaintiff in a suit against a former client who posted allegedly libelous statements about him on a website forum has thrust him into the forefront of emerging case law about Internet blogs.
Myles Eastwood, the Atlanta attorney who represented Banks, said Banks sued David Milum after he refused to retract statements on his website accusing Banks of taking bribes on behalf of drug dealers.
The accusations, Eastwood said, “went right to the heart of a lawyer’s trustworthiness. He just crossed the line.”
A 12-person jury deliberated six hours over two days before awarding Banks $50,000 in compensatory damages.
The verdict made him the first plaintiff awarded damages in a libel suit against a blogger, according to the Media Law Research Center in New York, which tracks lawsuits against bloggers.
The case, decided last year, is one of at least 50 similar suits filed over the past several years.
A blog – the shorthand term for weblog – is an Internet forum that uses inexpensive software allowing people without technical expertise to update and maintain its content. Over the past two years, the number of blogs has skyrocketed. According to Technorati, a San Francisco firm that tracks blogs, as of June there were 53 million blogs, with 150,000 new ones created every day.
Many bloggers may not be aware that they could face legal action for what’s posted on their forums. While most of the 50 suits filed against bloggers to date allege libel, several involve issues of trademark infringement.

‘Growing trend’
Ilan Barzilay, an attorney with Wolf, Greenfield & Sacks in Boston who specializes in intellectual property and electronic technology issues, said he’s not surprised by the spate of lawsuits.
“I see it as a growing trend,” he said. “A blog is a person’s way of getting opinions and thoughts out there, [but that] can be used against the author.
“If I don’t like somebody and post something on my blog, I have to be careful not to cross the line into defamation,” he warned.
Christine Corcos, an associate professor at Louisiana State University Law Center and editor of Media Law Prof Blog, noted that “a lot of people who start blogs have no idea that their comments could be defamatory.
“I think a lot of people are venting and they see a blog as a way to express themselves,” she said. “They don’t see the difference between a statement that’s protected as opinion and a statement that isn’t.”

Georgia case
During the trial in Georgia, Eastwood told jurors that Milum’s allegations stemmed from Banks’ refusal to return $3,000 in fees for representing him in a DUI case.
Banks had worked on the case in 1999 and 2000 before turning it over to another attorney. Milum was eventually acquitted of the charge.
Eastwood quoted a statement on Milum’s website after he made the bribery allegations: “Rafe, don’t you wish you had given me back my $3,000?”
Eastwood also told jurors that he sent a letter asking for a retraction, and that Milum not only refused to retract his accusations, but repeated them on his website.
Jeff Butler, an attorney from Augusta, Ga., who represented Milum, argued that his client was not nursing a grudge against Banks, but instead was exposing what he considered to be corruption in local government by providing information about bribes to allegedly corrupt judges.
But Eastwood countered that Milum simply posted accusations without any evidence to back them.
“I don’t think there should be a difference between a newspaper, a television or radio station, a magazine or the Internet,” Eastwood told Lawyers USA. “If somebody just decides he’s going to say something that completely tears down [someone else’s] reputation, he has to be accountable.”
Milum is appealing the verdict.
A Florida jury in October 2006 awarded $11.3 million to Sue Scheff, the operator of a Florida website that helps parents screen boarding schools.
Scheff claimed Carey Bock, a Louisiana parent, posted defamatory messages about her on an Internet forum.
Bock, who was a victim of Hurricane Katrina, did not appear in court to contest the case, and reportedly has no assets.
Lyrissa Lidsky, a professor at the University of Florida Levin College Of Law, said that because it was a default judgment, the case is unlikely to set a precedent.
Still, she said, it “could encourage other plaintiffs contemplating bringing suit against bloggers, message board posters or other online speakers.”

Journalistic privilege?
Two years ago, most blogs were web diaries posted by people providing commentary on their personal lives or public issues. But an increasing number of blogs have morphed into newsy websites that report business and political developments.
The blurring between blogs and news sites has raised legal issues about whether bloggers are entitled to the same constitutional protections as journalists.
In California, Apple Computer sued several website operators for posting confidential information prior to the release of a new product. During discovery, Apple subpoenaed a website’s e-mail provider, seeking messages that could identify the source of the leaked information.
A trial court ruled that Apple was entitled to try and determine the sources, and declined to determine whether the bloggers qualified as journalists under California’s shield law. But the California Court of Appeal reversed, holding that bloggers and webmasters are entitled to the same protections against divulging confidential sources as traditional media. Apple did not appeal the ruling. (O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006).)
Legal issues are also being raised about the use of blog postings in criminal cases.
Boston attorney Edward A. Prisby’s blog postings came back to haunt him after he called Cambridge, Mass. city councilor Anthony Gallucci – who rear-ended him in an auto accident – a “hack.” Prisby also suggested in his personal blog that the politician might have used his political connections to avoid a criminal investigation.
The Boston Globe reported that when Prisby was called as a witness at a hearing to determine whether there was enough evidence to charge Galluccio with drunken driving, he was confronted with his blog entry by the politician’s lawyers. They tried to discredit Prisby’s testimony by arguing that he had a grudge against Galluccio.
Legal guide for bloggers
Corcos said bloggers need to educate themselves about what they can and can’t post.
“Bloggers in general think they can put about anything in a post. They seem to think that defamation rules don’t apply, in the same way that some bloggers think copyright laws don’t apply,” she said. “They’re wrong.”
To help bloggers avoid legal problems, the Electronic Frontier Foundation has published a legal guide (http://www.eff.org/bloggers/lg/). The guide addresses a range of issues, including liability for defamation and privacy violations. It also discusses Sect. 230 of the Act, which is often cited as a defense by forum providers.
“People should get informed,” said Kurt Opsahl, a staff attorney for EFF who authored the guide. “You don’t want [them] to get overly concerned and start to chill their speech, but nor should someone be ignoring the legal issues.”