A law student who launched an anonymous blog dedicated to criticizing his former law school is getting a crash course on defamation law. As the National Law Journal reports, the law school is trying to “publicly unmask and sue him for defamation.”
This law student blogger may learn the hard way that, despite a widely held perception that speech over the Internet is anonymous and unregulated, those who make libelous statements about others on the Internet may be sued successfully. In Batzel v Smith (9th Cir 2003) 333 F3d 1018, the Ninth Circuit found
no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world.
In fact, recent case law indicates that ISPs and website operators may be required to divulge information about the identity of persons making defamatory statements, although the process by which those identities must be disclosed is the subject of ongoing litigation. In the case of the law student blogger, his web host mistakenly let his identity slip out, but the court has sealed it for now.
The First Amendment still plays a role in cyberspace, of course. To protect the First Amendment right to post anonymously on the Internet, courts require that a prima facie case for defamation be shown before they will issue a subpoena for the disclosure of the identity of an anonymous poster. Krinsky v Doe 6 (2008) 159 CA4th 1154, 1172, 72 CR3d 231.
In addition, under the protections of the First Amendment, opinion is an absolute defense to defamation; only false statements of fact are actionable. Shahvar v Superior Court (1994) 25 CA4th 653, 30 CR2d 597. Not surprisingly, the law student blogger is claiming that his allegedly defamatory statements were simply his opinion, and thus aren’t actionable.
For more on the always interesting issues surrounding the trifecta of defamation, the First Amendment, and the Internet, check out CEB’s Internet Law and Practice in California, chap 20. On defamation law generally, turn to CEB’s California Business Litigation, chap 11, and California Tort Damages, chap 8.
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