CA Court: Message Boards Are Opinions, Not Facts

Masem writes: "According to this Newsbytes story, a CA appeals court has issued a ruling that says that typical messages posted to internet message boards can not be considered as libel or slander, as they inheritently are framed as opinions and not as statements of fact. The case stems from rather negative comments posted by defendants about a computer reseller company on the internet; the company sued for libelous comments; lower courts did initially rule for the company, but the appeals court has overturned this. While not every message posted in a public forum is safe, the court's decision seems to convey that unless the message is framed as a form of fact, then any message posted to a public internet forum should be considered as opinion, and thus cannot be considered as a libelous comment."

Comments

Thank heavens!

[peacefinder]

Well, that should relieve everyone on Slashdot no end! :)

hehe...

[TechnoVooDooDaddy]

why am i suprised every time a court makes a ruling that makes sense?

seriously, good work there in CA...

Re:hehe...

[ChazeFroy]

Actually an interesting aspect of this ruling is what if somebody posts confidential intellectual property or illegal material to a message board...DeCSS for example?

New disclaimer:

[rjamestaylor]

"Comments are owned by the Poster."

Change to

"Comments are Opinions owned by the Poster."

Besides, the best defense may just be, "Hey, this is Slashdot -- you were expecting facts?"

;-)

Re:New disclaimer:

[Bonker]

+5 Funny, yes, but damned good advice all the same. Are you listening, Taco?

Changing the line to something like

"All comments are the opinions of the owner and not the property of Slashdot"

might just save you a world of grief down the line.

Re:New disclaimer:

[TekPolitik]

If the "context" is framed (that's what the disclaimer does; frames the context unambiguously) then this ruling does, in fact, apply.

The content can counter the disclaimer depending on form. For example, if you say "John Doe raped Jane Bloggs", that will be read as an attempt to state facts rather than an opinion. On the other hand, if you say "I believe John Doe raped Jane Bloggs", it's probably a statement of opinion put together with the disclaimer. If you say "Jane Bloggs was raped. In my opinion, the most likely culprit is John Doe", then the disclaimer isn't even necessary.

You need to be careful though - in the United States, opinion is absolutely protected in the same way truth is protected, because "there can be no such thing as a false opinion." Here in New South Wales, opinion has unqualified protection under the Defamation Act 1974 (NSW) s32. But on the Internet you need to make sure that the web site you publish on is in a jurisdiction that has this unqualified protection of opinion, but as long as it's in such a jurisdiction, and you make no attempt to limit the persons who access your web site, a defendant in another jurisdiction won't be able to touch you, even under their local laws (Kostiuk v. Braintech (1999) 171 DLR (4d) 46).

You also need to make sure that when making comment you provide the statement of fact that backs it up. For example, if you say "Joe is a person incompetent to hold a position as a public official", you might be nailed in some places. On the other hand, if you say "Joe cannot read. A person who cannot read is incompetent to hold a position as a public official", the provided it's true that Joe can't read, your OK (in fact in this case you'd be OK most anywhere in the English speaking world).

It's best to make it absolutely clear what part is opinion (or "comment" in defamation terms) and what parts are facts when you're saying something you know somebody might claim is defamatory. This is critical (although less so in the US) - failure to make clear the separation between facts and comments can kill the "fair comment" defence. In some jurisdictions you also have to prove your facts, so it's better to say "I received this email which purports to be from X and says Y" rather than "X sent me this email that says Y".

Of course it's easier just not to say anything bad about other people, but much more boring.

IANALY,TINLA

Yeah, but...

[cburley]

isn't this ruling just one court's opinion??

good except...

[mickeyreznor]

it would have been nice if they extended this ruling to include personal web pages, which have been under attack constantly by lawsuits claiming libel and slander, etc.

Re:good except...

[DrSkwid]

simple solution

set up your webpage to look like a message board

and if anyone tries to post throw up a 500 server error page :)

IMHO

[pete-classic]

Note to self: start every comment "IMHO . . ."

new UBB tag

[LMCBoy]

How about a new tag for HTML/UBB/whatever:

<fact>Linux rules, M$ drools!</fact>

This tag would lend the enclosed text more credence, but also hold the poster responsible for its content.

heh.

Good news for Fuckedcompany.com

[Nerftoe]

Fuckedcompany.com recently received a subpoena from the lawyers of Printcafe.com to cough up "records" of the anonymous posters who made slanderous comments on the site. Some of the comments were directed to the CEO's wife. It seems that Pud (owner of FC) doesn't keep records of the IP addresses of those who frequent the site. Pud said that it was too bad that he already had finished up his book, because they would have received a mention.

Dangerous article -- chaning the line

[www.sorehands.com]

It must be read carefully. You have to keep in mind, that the ruling may change the line between fact and opinion, but not that much.

The analysis of fact and opinion has been based on context and content. This ruling recognizes the context portion or the analysis. And states that it being in that forum makes it as from a disgruntled stockholder as opposed to someone in "the know" or with authority.

Even on a web posting, libel can still be found.

/. is still safe

[EccentricAnomaly]

Deep, Deep, down in the sprawling dungeons below Redmond, Washington:

"Yes, Yes, my precious"

"Uhhh... Mr. Gates?"

"WHAT are you doing here!"

"Uhhh... sir, I was sent my the legal team... ya know, Nazgul, Balrog, & son... it seems a court ruling in California put a crimp in our plan to rid oursleves of that vile website, slash-"

"DON'T say that word!! ...well, I guess we need to go to plan B... Send forth the flying monkeys!! Muhahaha!!"

"Uh, sir.. we don't have any flying monkeys... all we have is Dancing Monkey boy..."

"Crap... forget this, I'm just going to stay down here and play with my invisibility ring"

This ruling (would) make no sense

[cryptochrome]

There's a big difference between a negative opinion and libel - an opinion is a personal statement meant to negatively impact the object, while libel is a FALSE written statement meant to negatively impact the object.

So while it's true that most of what you find on message boards is bullshit, and should thus be regarded as such without further verification, it can still be libel. All that matters is that it's a lie presented as fact to hurt the object.

However, what the defendants were accused of is TRADE libel - apparently they were saying things like "this stock sucks" clearly within the context of opinion. It could be considered libel within some contexts - but not within that of a message forum. Anyone getting stock tips off one of those is pretty dumb. So in their limited case, it seems they were not commiting libel.

cryptochrome

Re:This ruling (would) make no sense

[tchuladdiass]

There was a case back a year or so ago (I don't have the linke, but it was popular enough to be on some TV news magazines) about a teenager that had to pay 6-figure fines to the SEC for pumping up stocks on message boards then dumping them when the price went up. I wonder if this case will allow him to get is money back?

Re:This ruling (would) make no sense

[thelaw]

probably not. the stock-price-inflater's action qualifies as willful manipulation of financial markets, which, of course, is illegal. :) even if he'd lost money it would have been illegal.

on the other hand, if he'd been making derogatory comments specifically for the purpose of manipulating the markets, and the appeals court said it was okay, then he might get his money back.

is this the 9th appeals court? they seem to have a history of being reversed...

jon

Re:This ruling (would) make no sense

[Glint]

The most interesting implications for this will be in the area of "libel per se."

Despite popular belief, truth is not a complete defense against libel. If the comment is sexual in nature (e.g. "This prostitute is not a virgin," "This hairy-palmed fifteen year old masturbates feverishly") then it can be brought to court as libel without the plaintiff having to prove or disprove anything.

The reason that I am more familiar than I would like to be with this is because I wrote a satirical "news" story on my LiveJournal once about a fictional kid who masturbated too much, and I assigned the kid a pseudonym that happened to be the real AIM screen name of a person I knew in real life. Stupid, I know. Even though only seven words were devoted to linking the pseudonym to the fictional character, the kid eventually found it and his mother threatened to sue. The story has since been erased.

If a similar thing happened on a message board after this ruling, I wonder if the poster could still be brought up on libel charges?

- Adam

Rational dudes?

[KarmaBlackballed]

I checked the date, but today is not April 1st. How is it possible that there are two postings on Slashdot today where California, the state with blackout summers and crazy laws, has issued court rulings that make sense! This is crazy. The world must be ending.

If this shows a trend, I may have to move out that way.

Tell that to vwforums.com

[swordboy]

Check out this article. A VW dealership is suing for a post on a message board. Both the poster and the message board have been named in the trial.

Huh

[BillyGoatThree]

IANAL, but I bet this means we can all stop saying "IANAL".

This makes so much sense, it is funny.

[AtariDatacenter]

And for a great example of a case of this going on right now, head on over to Fucked Company where some dot.bomb is trying to get FC to reveal the names of some anonymous posters who said bad things about the company and the CEO's wife.

lawyers for jim ellis vw can't be happy

[pangloss]

Given the page views at vwvortex, i'm sure many have heard of the lawsuit that the Jim Ellis VW dealership in Atlanta, Georgia brought against George Mantis. The dealership sued Mantis recently, alleging that the comments Mantis posted to a VW web forum were libelous/slanderous.

If you haven't already, I highly recommend you have a read (although the length of the thread at this point easily rivals some of the longest ever seen even on /.). It started out with a few disgruntled customers, and when the dealership tried to snuff the thread by serving papers to both Mantis and VWvortex, it became a giant stink, with international media coverage and even a grassroots legal defense fund. If you look at the timestamps about 7 pages in, you really get a sense of how fast and across how many vectors information can travel.

FYI: The dealership seems to be backtracking now, and supposedly will be in settlement talks this Friday. Hopefully this translates into an even stronger position for Mantis to deal from.

Have a nice day.

[rice_burners_suck]

Disclaimer: The following comments represent opinion only and should NOT be regarded as statements of fact, slander or libel:

Microsoft SUCKS ! Windows SUCKS ! MSN SUCKS ! Internet Explorer SUCKS ! Passport SUCKS ! .NET SUCKS ! [insert name of Microsoft product here] SUCKS !

The following, however, are statements of fact:

Linux ROCKS! FreeBSD ROCKS! NetBSD ROCKS! OpenBSD ROCKS! Darwin ROCKS! Amiga ROCKS! BeOS ROCKS! IceWM ROCKS! vi ROCKS! Opera for Linux ROCKS! Qmail ROCKS! csh ROCKS! [insert name of UN*X program here] ROCKS!

Oh well.

The bogus libel suit attack

[Zeinfeld]

The FC attack is not the only attack against an anonymous online user where a lawsuit appears to have been used in an attempt to discover someone's identity so that extra-judicial harassment may be applied. There are a growing number of cases in which profitless (and on occasion revenueless) dotcoms have been trying to silence critics using spurious lawsuits.

My favorite amongst these is the ZixIt/Visa lawsuit. The CEO of ZixIt said in a con call that 'shareholders should sell if there are no ZixCharge partners by the end of the year'. So the end of the year comes and no partners, coincidentally ZixIt filled a suit against Visa claiming that anonymous posts on the Yahoo message board by a Visa employee had somehow interferred with the business relationships of the company.

The lawsuit is still in progress, only Visa are now subpoenaing the records of the discussion board from Yahoo. The only explanation for this would be if they suspected that ZixIt employees were posting to the board. ZixIt is no longer revenueless, they sold 9,500 seats at something like $25 a seat last quarter, the ZixCharge product has never launched, although this may in part be due to the ZixIt payment site having been hacked a few months back. Kinda hard to promote a secure payments scheme after that eh?

During the arguments over the Paula Jones lawsuit the one that I thought was least good was that the President should not have to spend time answering vexatious lawsuits. While I think that the lawsuit was cooked up by the GOP from start to finis, I don't buy that argument. The Congress and President should have to face the same risks of bogus lawsuits as the rest of us, that might encourage them to do something about the situation.

Fiction =/= Truth

[Liza]

Let me see if I got this -- Adam was *threatened* with a lawsuit, therefore truth is not a complete defense against libel?

Um. First, it's pretty easy to sue someone. Anyone watch West Wing last night? It was an old rerun where they talk about lots of lawsuits against the President, from crackpots who want the government to stop letting aliens broadcast through their fillings, to someone blaming the President for the fact their spouse didn't wear a seatbelt and died in a car accident. Lunatic lawsuits are not uncommon. They might lose, or you might give in because hiring a lawyer to defend you is expensive. But in this case, Adam wasn't actually sued.

Second, Adam wrote about a "fictional kid" who masturbates to much and had the personally identifiable information as a real person, who presumably doesn't do what he described the "fictional kid" doing. In other words, truth wouldn't be a defense, because Adam wasn't telling the truth.

Now let's pretend for a moment that the "fictional kid" with a real kid's AIM name really is a compulsive masturbator. Then his story wouldn't be libel, but he still might get sued.

Invasion of privacy, and in particular "public disclosure of private facts" is against the law in most states in the US. The law varies from state to state, but the tort "invasion of privacy" in most places is something like:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts, 652B (emphasis added)

I think in most cases, the publication of a claim that a person is a compulsive masturbator would meet the "highly offensive to a reasonable person" standard.

Truth is a complete defense against libel. But that has nothing to do, as far as I can tell, with Adam's situation. I could be wrong - state law on this varies. But that's how I see it.

Liza