Accuracy and Libel Policy
Why a Policy?
The Davis Community Network, like other community networks and freenets was born of a desire to develop infrastructure for community. Some may not have anticipated that the organization would, itself, ever provide information. If we build the technical infrastructure, the argument might have gone, "they will come" -- that is the community will use the infrastructure to build their own information resources.
The role of the organization has developed, though, with the emergence of the World-Wide Web and DCN's involvement with the local web. When it first provided a web server and allowed customers to publish via their subscriber accounts, DCN was developing infrastructure. However, when it obtains, organizes and serves election finance information, DCN is a publisher.
This change in role was not accidental, though it may have taken some by surprise. Many in DCN believe that it's necessary to help build or even invent the public sphere in cyberspace and that the organization should exercise leadership in this area to counter the commercial and centrifugal pulls of the Internet.
If DCN is to develop and continue its work as an information provider, it must concern itself with the ethical and legal obligations of a publisher. Among these obligations is the need to avoid libel and to protect the organization and community from the damage that could be caused by libel.
Libel Background
Libel is defamation in print, written speech that damages the reputation of an individual or entity. Most of the legal and ethical discussion about libel to-date has been concerned with traditional print media. But, libel law clearly pertains to electronic publishing as well and some new issues are raised by modes of publishing -- such as electronic bulletin boards -- common in cyberspace. Such issues have already been considered in at least two oft-cited court cases.
Any statement in print -- electronically or on paper -- is potentially the source of a libel charge if might lower the estimation in which the community holds an individual or product. Consider our example of election finance reporting. Reporting a contribution to a candidate could easily damage the reputation of the candidate or contributor. In fact, that's why we report them. If the sources of funding for campaigns did not in any way affect the reputation of the candidate or contributor, they wouldn't be a matter of such intense public interest.
There is only one absolute defense against a charge of libel: that the statement was provably true. Every other defense is conditional. The defense of provable truth will often be unavailable to DCN -- or at the least very difficult to pursue. We only rarely will be the original author of the information we publish. Campaign financial data, for example, comes from the campaign treasurers and passes through the office of the clerk.
There are a variety of conditions under which a publisher's obligation to prove truth is relaxed. In some cases, persons charging libel must themselves prove the information false. In other cases, they must also prove the publisher careless, reckless or even malicious as well as untruthful. These additional defenses are part of the US legal tradition and are derived from the First Amendment. They are not available in many other countries. [The world-wide nature of internet publishing may lead to some interesting cases.]
DCN will, in general, only wish to publish material in areas where it will be able to claim one or more of these additional protections. Legal exposure to the organization is otherwise simply too great.
Fortunately, there is a close correspondence between the areas of relative protection and those in which we, as an organization, have a legitimate interest in publishing.
Discussion about matters of great and legitimate public interest is often -- but not always -- afforded some protection. When matters are of public concern, the burden of proving the falseness of the published material in a libel case generally switches from defendant (the one being sued for libel) to plaintiff. In many states, the plaintiff will also have to prove at least careless error on the part of the publisher.
Libel defenses expand in certain, well-defined, public arenas.
Comment and Opinion
The "Libel Manual" portion of The Associate Press Stylebook and Libel Manual notes:
The publication of defamatory matter that consists of comment and opinion, as distinguished from fact, with reference to matters of public interest or importance, is covered by the defense of fair comment.
The Manual goes on to add, "Of course, whatever facts are stated must be true" and that "even statements of opinion may constitute libel if 'sufficiently factual to be proven true or false.' "
Since the distinguishing of claims of fact and opinion can be so difficult, DCN should not rely on the distinction in determining its degree of libel exposure.
Public Figures
A public figure who charges libel not only may need to prove the falseness of the charges but that they were made with "reckless disregard for the truth" or actual malice. Since this is a very high standard, we can conclude that careful publishing of information about public figures is well-protected.
However, there are many misconceptions about the definition of a public figure. The Manual notes: "public figure means people who seek the limelight, who inject themselves into public debate." A public figure is not simply a person of interest to the public, but one who, in the words of the Supreme Court, has injected themselves into a public controversy "in order to influence resolution of the issues involved in it." Returning to our election finance example, we may suppose that we are very well protected -- so long as we handle facts carefully and without malice -- in reporting campaign contributions.
Privileged Materials
Reporting of public and official proceedings is privileged -- it is accorded the highest level of protection. This privilege is diluted or lost if the reporting is not careful and accurate.
The definition, though, of public proceeding may differ from common sense. The AP Manual states that "conventions of private organizations are not 'public and official proceedings' even though they may be forums for discussions of public questions." So, if we publish a summary of a League of Women Voters policy forum (or the minutes of a Telecomm summit), there is no privilege -- even if public officials are present. DCN should probably restrict its reporting of such forums to the areas protected as "Fair Comment and Criticism."
Open Forums
Here's where events in cyberspace have actually set some legal precedents.
Open forum examples include USENET, bulletin board, and HyperNews forums. Recent court decisions suggest that the liability of the provider of such a forum depends on the degree to which they edit (or represent themselves as editing) the content of the forum.
In Cubby v. Compuserve, Compuserve was protected by the fact that they did not edit the content of their forums and did not represent the forums as edited or pruned. Compuserve had no opportunity to review forum materials before they became available to on-line readers. Thus, the court found that Compuserve exercised no more editorial control than a bookstore or newsstand which is not aware of the complete contents of every publication it may carry. Requiring knowledge of every posting would restrict availability, an action which the state may not require without constraining speech.
However, in Stratton Oakmont v. Prodigy (often referred to as the Prodigy Case), the court found that Prodigy exercised editorial control over its forums by saying it would remove offensive or uncivil postings (and occasionally doing so). The key distinctions between Compuserve and Prodigy were: "First, Prodigy held itself out to the public and its members as controlling the content of its computer bulletin boards. Second, Prodigy implemented this control through its automatic software screening program, and the Guidelines which Board Leaders are required to enforce." Prodigy, the court found, actually wanted a "chilling effect on freedom of communication in Cyberspace ... but for the legal liability that attaches to such censorship." With editorial control comes liability, the court argued, suggesting that forum operators choose their level of liability when they choose their level of editorial control.
One conclusion we can draw from Prodigy is that where it is not feasible for DCN to examine every posting for defamatory content, as in a lively online public forum, we should not pretend to do so.
When DCN opens public forums, it must either largely keep its hands off or make it very clear what editorial responsibility it is taking. And, we must exercise that responsibility completely if we take it at all.
Organizational Policy
Differentiation of Roles
DCN must distinguish clearly between cases where it is the publisher of content and cases where it is the conduit. This distinction must be clear to the DCN Board and volunteers. We should also make it clear to the community since not all may be familiar with the conventions of cyberspace.
Subscriber web areas are the subscriber's responsibility (as regards libel) and not DCN's. DCN should, none-the-less, help the public understand the difference between content published by DCN and content carried by DCN. Use of distinctive styles for our own pages will help.
Forums are a sensitive area. DCN must distinguish for itself and for the public the difference between forums that we edit and those that are open.
Restriction to matters of strong and legitimate public interest
DCN should restrict its publishing activities to areas of strong and legitimate community interest. This not only affords us some protection from libel charges, but its also in accord with our mission statement.
Close Supervision of Publishing Activities
Secure mandate from IPC/Board
Where DCN volunteers embark on new publishing activities, they should seek a mandate from the DCN Information Providers' Committee. The mandate should set the boundaries and conditions of the publishing activity. If a proposed publishing activity enters a new arena, the IPC should seek approval from the DCN Board of Directors. If timeliness is an issue, the DCN Executive Committee may provide conditional approval for a new publishing activity.
IPC/Board must approve chairs
The chair or leader of any DCN publishing activity must be approved by the IPC, or in new arenas, the Board. If the chair or leader resigns, approval for the new leader should be sought.
Chairs must familiarize themselves with basics of libel law
It is the responsibility of the chair or leader of a publishing activity to learn the basics of libel law, such as those presented in the AP's Libel Manual. (This is currently less than 20 pages.)
Correction and Retraction
If anyone discovers that material published (not just carried) by DCN is in error, this should be immediately brought to the attention of the activity's chair or leader. If material is in error, it should be corrected or retracted as soon as possible. The correction or retraction must be placed to draw attention similar to the erroneous material.
Resources
The Associated Press Stylebook and Libel Manual, editor Christopher W. French, Addison-Wesley Publishing Company, 1987-.
Cubby v. Compuserve, United States District Court, Southern District of New York, 1991..
Stratton Oakmont v. Prodigy, Supreme Court, State of New York, 1995..
EFF "Legal Issues -- 'Cyberspace for Non-Lawyers' Course" Archive..
Materials on Cyberspace Law, The John Marshal Law School. See "Tort Liability."
"On-Line Service Provider Liability for Defamation,"; Florida Bar Association Computer Law Committee Online Journal, Summer 1996.
Cyberspace, the Free Market and the Free Marketplace of Ideas: Recognizing Legal Differences in Computer Bulletin Board Functions, Eric Schlachter, 1994. Note that this article was cited in Prodigy and appears to have provided the rationale for connecting level of liability with level of editorial control.
