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Net libel suit raises free speech issues

A contributor to a Net mailing list is appealing a small claims ruling against her that she libeled a fellow Netizen by calling him a liar online.

During a typically passionate discussion on the Net, Stacy McCahan called someone a liar--and to her surprise, she was slapped with a $5,000 libel lawsuit.

At the height of the controversy over San Francisco's famed Critical Mass bicycle-ride protest last year, the debate naturally spilled on to the Net. McCahan freely joined some of the arguments, never dreaming it could lead to the legal wrangling.

In February, McCahan quickly lost the case in small claims court--where the hearings are brief and decided by an attorney acting as a judge. The plaintiff, Ken McCarthy, a Web consultant and freelance journalist, argued that McCahan's post was archived on the Net for any one of his potential clients to see, possibly killing his chance of landing accounts.

On March 26, the San Francisco Superior Court will hear McCahan's appeal, which no doubt will bring to light the bigger issues in the case.

Legal experts say the case is not the first lawsuit to address online libel, and it won't be the last. But it does cement a growing realization by Net users who are accustomed to shooting from the hip: what they say in chat rooms, email, or on Web sites is not exempt from the laws of the offline world.

"Some people would compare the Net and chat rooms to sort of the 21st century speaker's corner in [a park]," said Kevin Goering, a media lawyer at Coudert Brothers.

"Maybe people don't put much stock in what they read on the Net, so it may not cause damage. But on the other hand, it could go out to millions of people," he added. "Clearly, a lesson to the wise is that you can't just say things, pass information along, and not be held accountable."

Although some legal experts say Net libel cases date back to the early 1990s, they are gaining more notice now as droves of people are coming online.

Still, online speech increasingly is being held up to legal scrutiny. For example, last month, a Los Angeles man was found guilty of civil rights violations for sending racist death threats via email to 59 Asian college students.

As with the hate email case, McCahan's defense will rely partly on an examination of Net culture and the implication the outcome of the case will have on free speech.

Online forums are know for their heated exchanges, in which many of the speakers are anonymous. In this spirit, McCahan's attorney will argue that she has a constitutional right to speak her mind and the truth as she knows it. Based on a past conversation with McCarthy, she believed him to be a liar, she says.

"While this is a small claims [case], there are some large principles involved--mainly the First Amendment," said Karl Olson, McCahan's San Francisco attorney. "The major thrust of what we are going to say is that on the Net, in chat rooms or on mailing lists, people expect to see what the U.S. Supreme Court has referred to as uninhibited, robust, and wide-open debate."

McCarthy's claims likely will echo a higher-profile lawsuit unfolding in Washington against Net gossip columnist Matt Drudge and America Online. They are being sued over an allegedly libelous column about White House adviser Sidney Blumenthal, who wants the court to award him $30 million.

McCarthy's accusation is similar to Blumenthal's. McCarthy will argue--as he did in small claims court--that McCahan knowingly made a false statement about him, which could damage his reputation.

To win a libel case, public figures such as Blumenthal have to prove the statement in question is a lie, and that it was told with malice. McCarthy's burden of proof is less stringent.

The dispute between the two Netizens started when McCarthy, identifying himself as a journalist, sent McCahan an email message asking for further details regarding a post she made to the "sf-critical-mass" mailing list. McCahan was one of the Critical Mass riders who worked out an agreement with San Francisco Mayor Willie Brown last July to ease the traffic congestion caused by the monthly ride--in exchange for new bike lanes and other concessions.

McCarthy says he was working on some investigative articles about Critical Mass for his Web site, E-media, and emailed McCahan three times requesting an interview with her. The two then exchanged one email, and later had an argument on the phone, both say.

Then, on July 30, McCahan posted to the "sf-critical-mass" mailing list a message entitled "Ken McCarthy is a liar--be warned." Her post accused McCarthy of inaccurately stating the details of their phone conversation in another post to the list, which actually had been forwarded to the mailing list by another man, according to McCarthy.

The he-said, she-said battle ended six months later, when McCahan received notice that she was being sued for libel.

"That statement of hers was listed as the sixth article that came up on HotBot when my name was searched," McCarthy said today.

As of later today, however, the post no longer turns up on HotBot searches.

"There is potential economic damage to me. All I have is my reputation. There are a million guys now who can claim to do what I do," he added. "The Internet is not this alternate reality--it should be subject to the same laws and rules of conduct as the real world."

McCahan thought he made false characterizations of her online as well, but she would have never thought to sue him. The experience has made her afraid to communicate with others on the Net. "I'm totally afraid to get involved again. I feel like my constitutional rights have been violated," she said.

Goering says court decisions in any libel case can have a chilling effect on speech.

"Some courts may be tempted to say--which would be dangerous--that the Internet has more potential for damage, and so you need stricter rules. That could deter free speech," he said.

"Courts may soon find it necessary to redefine who is a public figure on the Net," he added. Other legal experts say all Net users could be considered public figures, which would make libel suits more difficult to win because plaintiffs would have to prove the defendant had brought them harm on purpose.

"Some people on a mailing list or online may be public figures [within the medium]," said Lance Rose, author of NetLaw.

He said new and old Net users must realize that when they speak online, they become publishers. Despite analogies that the Net is like a living room where people can create "virtual communities," Rose says it isn't a safe haven from the law.

"What's really happening is that we're still in the middle of the process of people pouring online. These people have to develop a better sense of where there are socially when they are talking online," he said. "You should consider yourself to be publishing to the world and be careful about what you say."