SOCIAL MEDIA, DEFAMATION AND THE NEW JERSEY
REPORTERS’ SHIELD LAW – PART ONE
EVERYONE IS AWARE OF THE UBIQUITOUS NATURE OF INTERNET COMMUNICATION, whether via email, social media such as Facebook, or blogs. As is the case with so many aspects of modern life, the legal system is faced with the task of applying time-tested principles to new ways of disseminating information and opinions. Given the speed with which means of internet communications are evolving, on the one hand, and the slow and deliberate pace of legal reform on the other, there will always be a gap between new issues and their resolution. One key set of issues the system is now wrestling with pertains to the use of internet media to defame someone.
THE UNITED STATES IS UNIQUE IN ITS DEVOTION TO FREEDOM OF EXPRESSION under the First Amendment to the Constitution. Every democratic society has to balance the right to free expression against the harm that can be caused by malicious, hateful or provocative communications, and the US balance tips the further than any other country in favor of freedom of expression. However, there are limits.
The basic definition of DEFAMATION is publicizing, in writing, purportedly factual information about someone that is both false and detrimental to that person’s reputation. If a statement is in fact true, it is not defamation no matter how detrimental. If it is expression of opinion, rather than a statement of fact, it is not defamation. For example, to write that Chris Christie is overweight is not defamatory because it is true. To write that Chris Christie is a bully is not defamatory because it is a matter of opinion. To write that Chris Christie is wearing a yellow tie today is not defamatory even if false because it is not detrimental. However, to write that Chris Christie has been convicted of taking bribes is defamatory because it is a statement of fact which is false and detrimental to his reputation. It’s harder to defame Chris Christie than your next-door neighbor, because in order to facilitate free discussion of public issues, the law provides a person who is in the public eye with less protection against false statements than an ordinary private citizen.
One of the time-tested legal principles is that people have the RIGHT TO EXPRESS THEMSELVES ANONYMOUSLY. The theory is that the benefit to society of people being able to express unpopular views without fear of persecution or harassment is greater than the detriment to victims of anonymous defamation. Traditionally, the scope for anonymous defamation was limited from a practical point of view: somebody posting unsigned flyers around a neighborhood defaming someone cannot not do as much harm as a newspaper publishing defamatory material, but the newspaper’s identity is well-known. On the internet, however, defamation can be at the same time anonymous, far-reaching and harmful. How can a victim get redress without knowing who is harming him? How can society let the victim find out who it is without destroying the protection for anonymous expression? In recent years, courts and legislators have had to address these questions.
New Jersey courts addressing these issues engage in a BALANCING ACT between the values of protection of anonymity and provision of redress to those injured. Any plaintiff filing a lawsuit against someone he believes has anonymously defamed him must first address the question of who, exactly, is responsible for the defamatory material. He might know only the identity of the ISP, but federal law provides immunity to ISPs for defamation posted by others. The New Jersey Supreme Court has held that subscribers have a reasonable expectation of privacy in the information they provide to an ISP, so the ISP will only give out the information if ordered by a court. To get such an order, the plaintiff has to meet high standards.
First, the plaintiff has to post a notice advising the offender that he is seeking to discover his identity. Then, he has to convince the court that the offensive posting is in fact defamatory (factual statement which is false and detrimental and in the case of a public figure, malicious or reckless). Once those requirements are met, the court engages in its balancing analysis, considering the facts of the particular situation. The balance is weighted in favor of the protection of anonymous speech. So far, the cases in which courts have ordered an ISP to identity a subscriber have involved special facts. In one such case, the court concluded that the anonymous poster was probably an employee of the plaintiff who was posting confidential and proprietary information belonging to his employer. Without something additional, it is unlikely that a New Jersey court will order disclosure of the poster’s identity.
A related issue is to what extent bloggers relying on anonymous sources are protected from disclosing them by New Jersey’s Reporter’s Shield Law – more about that next week.
DISCLAIMER – This article is for general information only and is not intended to provide legal advice or to address specific legal problems. This article does not create an attorney-client relationship. For legal advice concerning real estate transactions and all other legal matters, consult an attorney.
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Social Media – Reporter Shield
SOCIAL MEDIA, DEFAMATION AND THE NEW JERSEY
REPORTERS’ SHIELD LAW – PART ONE
EVERYONE IS AWARE OF THE UBIQUITOUS NATURE OF INTERNET COMMUNICATION, whether via email, social media such as Facebook, or blogs. As is the case with so many aspects of modern life, the legal system is faced with the task of applying time-tested principles to new ways of disseminating information and opinions. Given the speed with which means of internet communications are evolving, on the one hand, and the slow and deliberate pace of legal reform on the other, there will always be a gap between new issues and their resolution. One key set of issues the system is now wrestling with pertains to the use of internet media to defame someone.
THE UNITED STATES IS UNIQUE IN ITS DEVOTION TO FREEDOM OF EXPRESSION under the First Amendment to the Constitution. Every democratic society has to balance the right to free expression against the harm that can be caused by malicious, hateful or provocative communications, and the US balance tips the further than any other country in favor of freedom of expression. However, there are limits.
The basic definition of DEFAMATION is publicizing, in writing, purportedly factual information about someone that is both false and detrimental to that person’s reputation. If a statement is in fact true, it is not defamation no matter how detrimental. If it is expression of opinion, rather than a statement of fact, it is not defamation. For example, to write that Chris Christie is overweight is not defamatory because it is true. To write that Chris Christie is a bully is not defamatory because it is a matter of opinion. To write that Chris Christie is wearing a yellow tie today is not defamatory even if false because it is not detrimental. However, to write that Chris Christie has been convicted of taking bribes is defamatory because it is a statement of fact which is false and detrimental to his reputation. It’s harder to defame Chris Christie than your next-door neighbor, because in order to facilitate free discussion of public issues, the law provides a person who is in the public eye with less protection against false statements than an ordinary private citizen.
One of the time-tested legal principles is that people have the RIGHT TO EXPRESS THEMSELVES ANONYMOUSLY. The theory is that the benefit to society of people being able to express unpopular views without fear of persecution or harassment is greater than the detriment to victims of anonymous defamation. Traditionally, the scope for anonymous defamation was limited from a practical point of view: somebody posting unsigned flyers around a neighborhood defaming someone cannot not do as much harm as a newspaper publishing defamatory material, but the newspaper’s identity is well-known. On the internet, however, defamation can be at the same time anonymous, far-reaching and harmful. How can a victim get redress without knowing who is harming him? How can society let the victim find out who it is without destroying the protection for anonymous expression? In recent years, courts and legislators have had to address these questions.
New Jersey courts addressing these issues engage in a BALANCING ACT between the values of protection of anonymity and provision of redress to those injured. Any plaintiff filing a lawsuit against someone he believes has anonymously defamed him must first address the question of who, exactly, is responsible for the defamatory material. He might know only the identity of the ISP, but federal law provides immunity to ISPs for defamation posted by others. The New Jersey Supreme Court has held that subscribers have a reasonable expectation of privacy in the information they provide to an ISP, so the ISP will only give out the information if ordered by a court. To get such an order, the plaintiff has to meet high standards.
First, the plaintiff has to post a notice advising the offender that he is seeking to discover his identity. Then, he has to convince the court that the offensive posting is in fact defamatory (factual statement which is false and detrimental and in the case of a public figure, malicious or reckless). Once those requirements are met, the court engages in its balancing analysis, considering the facts of the particular situation. The balance is weighted in favor of the protection of anonymous speech. So far, the cases in which courts have ordered an ISP to identity a subscriber have involved special facts. In one such case, the court concluded that the anonymous poster was probably an employee of the plaintiff who was posting confidential and proprietary information belonging to his employer. Without something additional, it is unlikely that a New Jersey court will order disclosure of the poster’s identity.
A related issue is to what extent bloggers relying on anonymous sources are protected from disclosing them by New Jersey’s Reporter’s Shield Law – more about that next week.
DISCLAIMER – This article is for general information only and is not intended to provide legal advice or to address specific legal problems. This article does not create an attorney-client relationship. For legal advice concerning real estate transactions and all other legal matters, consult an attorney.