A System for Fighting Digital Defamation

October 2, 2009

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Part I of this two-part series argued that it was inappropriate for colleges and universities to assume responsibility under in loco parentis for protecting college students from anonymous digital defamation, and that institutions should instead empower students by educating them on available strategies and resources.

In this essay, we discuss a disaggregated solution for addressing digital defamation and the resulting disaggregated harms it causes. By establishing a database-driven Web-based litigation system, we can empower students and level the playing field so that interested students can defend themselves, and hopefully deter future digital defamation.

The Digital Defamation Problem

Juicy Campus, the anonymous gossip site that closed its doors in 2009, and its replacements, such as College ACB and Campus Gossip, allow anyone with an Internet connection to post almost any content about a student, true or otherwise. The sites themselves do not necessarily target students. Instead, these sites become a clearinghouse for disaggregated, defamatory statements that cause emotional distress. The sites structure themselves by college and then by topic or victim, making it likely that the poster lives within a few miles of the victim.

Gossip may be posted freely and anonymously across these gossip sites, but it has actual victims and real costs. After reading degrading statements about themselves, victims often feel helpless, and some engage in, or consider engaging in, self-harming activities. Victims of cyber-sliming can fight back -- but for hundreds or thousands of dollars a month. Those with financial ability can hire Web services such as Reputation Defender (a service that, for a fee, minimizes the search ranking of negative postings about the client while boosting the search ranking of positive information) or specialist attorneys (who, for a fee, will investigate and file the necessary lawsuits to clear one’s reputation).

Lawsuits can be effective. Two years ago, two Yale students saw some success in identifying and pursuing those who smeared them on the Web site AutoAdmit. If they had not been represented by lawyers without charge, their partially successful pursuit would have come at significant cost. Recently, a model, represented by counsel, successfully sued Google in New York state court to reveal the identity of an anonymous blogger who called her a “skank” on a Google-hosted blog. With the blogger’s identity revealed, the model dropped her suit.

Yet many college students who fall victim to such anonymous defamation cannot afford high-priced reputation-clearing services or legal representation, and can fall victim to these brutal attacks with few options for fighting back. While the weapons for anonymously hurling invective across cyberspace have decreased in cost to where they are almost free, the solutions for, and protections from, defamation remain costly. To that end, we envision a system that allows victims of defamation to fight back, at a lower cost, with the hope that the market further lowers the costs of such protection to a level that deters anonymous cyber-sliming.

A Disaggregated Solution

Due to the disaggregated nature of anonymous defamatory attacks against students, even colleges who would welcome their role in loco parentis cannot take on these Web sites or their anonymous posters. Due to mirror sites and easy off-campus Internet access, blocking access to such sites is ineffective in the long term. Rather, the most effective and practical method is for colleges to educate students on how to protect themselves against digital defamation.

To that end, we propose a disaggregated digital solution to this disaggregated digital problem: a database-driven, Web-based litigation system that would allow students to file suit using fill-in-the-blank legal forms. When student affairs staff members are approached by student victims, in addition to offering counseling, they can direct the student to a system where the student can engage in self-help.

Establishing such a system will come at significant cost – a cost that can only be borne by a large organization possessing the funds to develop and host the site and the staff to keep it updated as laws and standards change, to provide technical support to student victims, and to ensure that it does not violate state rules against improper practice of law.

Possible candidates include the Anti-Defamation League, national student advocacy groups and national student affairs professionals groups. Other candidates include law school clinics whose students could design such a site and assist student victims in reclaiming their reputations. Likewise, for-profit private sector entrepreneurs may find an opportunity here.

The system’s goal is to educate students about the general laws of defamation, and guide them through the process of bringing a lawsuit in the proper court. While most lawsuits would be for false and libelous defamation, even true statements can sometimes be so vile that they qualify under certain state laws governing intentional or negligent infliction of emotional distress (I.I.E.D.).The beauty of a database-driven system is that it could equally provide for an I.I.E.D. claim in those states where such a claim is allowed.

Defamation suits must be brought in state court except in rare, complicated cases. Which state’s court is appropriate depends on several factors. Since most of these claims will result from postings in forums dedicated to the college or university that the victim attends, that state’s courts will likely assert jurisdiction over the matter.

Gossip sites like Juicy Campus or College ACB “do business” in any state in which they establish a forum for gossip at a college located there. Further, the publication would occur in that state (among others) while the victim, and most likely the harasser, live in the same state. Like all lawsuits, these suits will not succeed every time, and some courts may decline jurisdiction. But, for many students, the system will take them down a path toward discovering the identity of their harassers and pursuing legal remedies against them.

The System for Fighting Back

The first step a student must take after viewing a cruel gossip post is to analyze the content of the post -- honestly. Although something is hurtful, it might not qualify as defamation. Truth is not defamation. Additionally, laws typically require that the poster had to know, or reasonably should have known, that the post was false when he or she posted it. Further, the post must be a factual statement; opinions are usually fair game. The student must differentiate between “John Jones is a drug addict” (claim of fact) and “John Jones acts like a stoner” (opinion).

Admittedly, this is a difficult line to draw for Constitutional scholars, and it will not be easy for college students without assistance. A well-designed system could include a “wiki”-style guidance document where those who bring successful cases or bring significant knowledge of defamation law can help students determine if a statement meets the definition. As cases progress, sharper definitions of defamatory statements may emerge. If the student concludes that the comments are really opinions, but they are “extreme and outrageous” enough to cause severe distress, the student might still have a claim against the poster for I.I.E.D.

The second step for a student is to see if they can determine who the poster is. If so, the path is easier. If not, the system would present them with a fill-in-the-blank “John Doe” lawsuit and subpoena for the gossip site hosting the comments. Using a database, the system can offer different forms and filing options depending on the state. Some states allow electronic filing while others require printing and mailing.

Once the victim sends the subpoena to the gossip site, the third step for a student is to provide some notice to the poster. One way is to post the subpoena in the same forum used for the defamatory post. If the site cooperates and releases the Internet Protocol (I.P.) address for the offending poster, the next step is to use the Internet “Who Is” database to determine the poster’s Internet Service Provider (I.S.P.), and subpoena that I.S.P. for the poster’s identity. If the I.S.P. cooperates and identifies the poster, the victim can amend the suit’s defendant to name the poster.

Some Reasonable Criticisms

It should be noted that this system is neither perfect nor free from criticism. For every success, there will be failures: paperwork lost, I.P. addresses destroyed or not captured, deadlines missed, and sites and I.S.P.’s uncooperative. It may be that few cases go to trial. Many will die on the vine due to technical or substantive problems. The successful cases, however, may result in large judgments, especially in the cases of the most malicious and untrue gossip. These cases, even if rare, may provide a deterrent against future libel. The examples of a few bright students who declare bankruptcy, cannot buy a home or have their wages garnished to pay a defamation judgment may dissuade future harassers.

A prime criticism to this system is the position that the Internet is a bastion of free speech and nothing should stand in the way of unabashed free speech. Yet, defamation and speech intended to inflict severe emotional distress is not First Amendment protected speech. States can and do regulate this type of speech. We are not seeking a new regime that silences free speech on the Internet; rather we hope to apply the same standards to the Web that govern in the real world.

Another criticism is that this system will only work to the extent that Web sites capture I.P. addresses and submit to jurisdiction. Further, some posters will use anonymizing software or post from locations that do not capture I.P. addresses. This criticism is valid, and admittedly, the system will not work entirely for every student.

However, while some sites may choose not to capture I.P. addresses, sites may begin to receive so many of these subpoenas that they comply for the sake of cost-saving efficiency. Alternatively, Congress or trial judges may begin to find bad faith in quickly deleting I.P. addresses simply to shield malicious posters from the legal system, and the legal and legislative marketplace may, thus, correct that difficulty.

Additionally, this system will not necessarily work for non-student defamation victims. The system is aimed at college students, because these sites construct forums for individual schools. Thus, it is likely that the poster and victim live in the same state (if not the same residence hall). It will not necessarily work for those targeted from other states or countries and may not help victims of attacks on personal blogs.

Further, contrary to the successful cases discussed above, courts in some states have declined to force anonymous posters to reveal themselves. Concurrently, the system will not protect against statements that do not meet the technical legal definitions of defamation or I.I.E.D., but nevertheless impose significant harm on victims. Of course, even if the system works and some victims win massive judgments, these suits may induce no more deterrence among students than did the music industry’s lawsuits.

Such a system also presupposes that a victim is willing to go on the record in suing the poster. The requirement to file openly may discourage some victims. The Second and Ninth Circuits of the federal court system, as well as many state courts, allow anonymous filing of lawsuits when, among other things, the matter is very sensitive or personal, there is a possibility of retaliation for filing suit, the prejudice to the defendant is less than the harm of identification, and when the public interest is served by such anonymity. Such a standard could be used in these cases, even recognizing the irony of filing an anonymous suit to expose an anonymous poster. At the same time, courts must be vigilant at the dismissal stage, to protect against those who seek to use the system as a weapon by filing false claims.

Establishing such a system will be expensive and difficult. It cannot be accomplished without the support of a large organization and volunteer attorneys or law students. Defamation cases are complicated and based on differing state laws. The same could be said about the thousands of pages of federal and state tax codes. Yet, companies like TurboTax and H&R Block offer database-driven Web services that allow most taxpayers to quickly and accurately file federal and state returns without ever opening the tax code.

Reclaiming a Reputation

We recognize that establishing such a system will not be an easy sell. Even considering the above, and other valid criticism, we believe that our system will empower the many student victims who have no method of fighting back against anonymous posters. It will not be perfect, yet we cannot let the perfect be the enemy of the good. Colleges and universities can educate students on ways to employ this and other disaggregated solutions; encouraging the development of this system and educating students on its use can be part of that mission.

The attractiveness of such a system is that it would help student victims help themselves. The individualistic nature of the Internet, where amateur journalists pen millions of blogs while Wikipedia entries outnumber traditional encyclopedia articles many-fold, is not well-served by a super-regulator censoring content to protect defamation victims.

Colleges cannot protect students from all of the dangers imposed by the Internet. Rather, student victims need an inexpensive, user-friendly tool to level the playing field. Developing and marketing such a system will grant victims a much-needed gift: the opportunity to take back their reputations and return to living their lives.

Bio

Benjamin Bleiberg is a judicial clerk in the United States District Court of the Eastern District of Pennsylvania. Joseph Storch is an attorney in the State University of New York’s Office of University Counsel. In addition to campus representation, he concentrates his practice on the legal issues surrounding emerging technologies. The views expressed here are their own and do not represent the views of the State University of New York or the federal court system.

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