February 1, 2007

An Assualt on Web Writers?

!!! UPDATE !!! State Rep. Rob Briley says he will withdraw his anti-blogger legislation on Monday. See his statement at the end of this post. !!! Also: The state Senator backing the anti-blogger legislation has been identified. See the update at the end of the original post...

Tennessee State Rep. Rob Briley has filed legislation that could, if it becomes law, require bloggers and other website publishers and writers to remove within two days from their website any statement that someone alleges is defamatory - and if they fail to remove the statement within two days that failure will "create a presumption of malice intent." The contested statement does not actually have to be defamatory for the web writer to be required to remove it or face that legal presumption of guilt.

Special thanks to Donna Locke for tipping me off to the existence of this legislation, which is so broad that it includes statements made by commenters on a blog, not just the blog writer. And alleged but unproven-as-defamatory statements must be removed within 15 days of publication even if the subject of those statements doesn't complain.

In addition, the legislation appears to seek to make web hosting companies legally liable for defamatory or alleged-defamatory statements that appear on website that is hosted on space rented on their server.

And here's the worst part: According to the Electronic Frontier Foundation's excellent primer on Online Defamation Law, under most states' defamation laws "a public figure must show 'actual malice' - that the defamatory statement was published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet."

But in Tennessee, if Briley's bill passes, a public official would not have to prove "actual malice," because the law would presume malice if the alleged-defamatory statement was not removed within two days.

Frankly, to me Briley's legislation appears to be an attempt to give public officials and others a legal club to threaten bloggers and online critics in order to silence them or cause them to tone down their criticism, though I could be wrong.

Briley, a trial attorney, was recently named chairman of the House Judiciary Committee, through which this legislation would have to pass to reach the House floor for a vote.

Briley's legislation, House Bill 0136, would add the following section to Tennessee Code Annotated Title 29, Chapter 24, Part 1, the section on libel and slander:

An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent.

First, it both presumes that any statement alleged to be defamatory is defamatory, and also presumes "malice intent" on the part of of the blogger or website owner if they don't remove it within 2 days of receiving a complaint, or within 15 days if no one complains.

Second, the phrase "any defamatory statements" includes statements written by blog commenters, as well as the blog's author - which, if it becomes law, likely will lead a lot of bloggers to stop allowing readers to post comments.

Third, the legislation's reference to a "licensee of a web site" is vague - "licensee of a web site" isn't an Internet term - but I'm fairly sure it refers to a web hosting company that rents the server space to the blog or site where the alleged-defamatory statement is published.

Which means that the person who thinks they have been defamed by something on a blog would not even have to contact the author of the blog but could merely demand the web hosting company to remove content from a website it doesn't own and which it has no involvement other than facilitating digital bits and no knowledge of the facts of the case and statement.

This is not some theoretical legal exercise to me. I'm a journalist by instinct, education and experience so I believe strongly in the values of truth and getting the facts right and not intentionally publishing things that are libelous, slanderous or defamatory. That's why on my blog you will find extensive sourcing and linking to source materials and documents. I try to get things right, and I don't permit readers to post comments that engage in personal attack.

So it was rather jolting a few months ago when I received an email from the office manager at an Austin, Texas, tech company that read:

"There is a posting on your website [link] regarding our CEO. This was done maliciously by an employee that was terminated. Could you please remove the posting?"

Although I did not write the offensive and defamatory comment, and had no malice toward the company or its CEO, the comment had been on my site for more than 15 days before the company notified me. Under Briley's legislation, instead of contacting me the company could have sued me and the jury would have been instructed to "presume" that I had malice intent. (They were, I should add, extremely nice about the whole thing.)

Current Tennessee law treats newspapers and other offline publications much more fairly. TCA 29-24-103 reads:

Notice of action against periodical - Effect of retraction.
(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b) (1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of such notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

I have emailed Rep. Briley several questions about his legislation and will bring you his response here in an update to this post. Also, if I have misunderstood his legislation or current Tennessee law I'll clarify the information in an update to this post. If you are a legal expert on Tennessee defamation law in general and especially as it applies to published writings reporting, commenting on or criticizing public officials, I would welcome your comments and expertise.

Briley's legislation currently has no Senate sponsor. You can follow the progress of HB0136 through the legislative process at this web page.

Meanwhile, here is an excellent article on blogging and defamation law from the March 2006 edition of Wisconsin Lawyer, titled "The Shifting Legal Landscape of Blogging.".

Update: After a good night's sleep I woke up with the recollection that this isn't the first time Rep. Briley sponsored a legislative assault on your digital freedoms. Back in 2003, Rep. Briley and then-Sen. Curtis Person pushed legislation based on "model legislation" provided to them by the Motion Picture Association of America via a lobbyist for the cable television industry that would have severely curtailed your freedom to use digital media - hardware and content - in the way you see fit, undermining your privacy rights, your "fair use" rights under federal copyright law, and your First Amendment freedom-of-speech rights. Opposition to the legislation ranged from conservatives and libertarians to the Tennessee chapter of the liberal American Civil Liberties Union.

Under Briley's 2003 legislation - which, thankfully, did not pass - the cable industry would have been given the power to declare any device it chose "unauthorized" to be hooked up to the cable outlet in your house. One practical result of that would have been that the cable company, which wants to make money renting digital video recorders, could declare the TiVo, a DVR that it doesn't sell, to be unauthorized, forcing you to buy or rent your DVR from the cable company. The cable company could also declare any wireless Internet hub to be "unauthorized," preventing you from using a WiFi device to access your your cable broadband Internet service from more than one PC in your home - unless, of course, you'd paid the cable company more money.

Interesting fact about that 2003 legislation: It would have made the mere possession of any device the cable company deemed "unauthorized" as proof of intent to defraud the cable company.

That sounds a bit like that "presumption of malice intent" provision in Briley's current legislation.

Why does a trial lawyer like Rep. Briley want to make it more difficult for defendants to mount a defense? Oh, wait. Nevermind...

Update: Rep. Briley's brother David Briley, a member of Nashville's Metro Council, is currently running for mayor in Nashville. Like Rep. Briley, David Briley is a trial lawyer. He and his brother are law partners. I don't know where Councilman Briley stands on this piece of legislation his brother is pushing in the state legislature, but I do know that Briley is a favorite for many Nashville political bloggers. I would urge him to issue a statement regarding this legislation.

!!! UPDATE !!!: Rep. Rob Briley posted the following in the comments at about 11 a.m. today:

Bill:

Thank you for pointing this bill out to your readers, and I also want to thank you for your thoughtful and complete analysis of this legislation. I will be withdrawing the bill on Monday evening when the House meets to hear the Governor's State of the State address. It was never my intent to file this legislation. It originated in the Senate and was brought to me by a Senator to see if I would consider filing it. While reviewing a number of bills that I had been asked to review, this particular bill was inadvertently placed among those that I had agreed to and intended to file. I mistakenly signed the bill jacket and it was filed by my staff. Even before the bill number and jacket was returned to my office (which it still not has as of this posting), you were able to find the bill on the Legislature's web site, analyze the bill, and post your story. I think those facts are a credit both to your diligence and to the openness our current system.

Again, this is not legislation that I intended to file, and I will be withdrawing it at the next available opportunity. I have always supported people's constitutionally protected freedoms, and I will continue to do so.

I hope this clears the air on HB136, as much as it can be from my end. I will follow up with you on Monday evening to confirm that it has been withdrawn. Thanks for all you do,

Rob Briley

If I was a local newspaper reporter who covers the state legislature and I wanted to get in on a story that the blogospere broke and pushed to its conclusion in less than half of a 24-hours news cycle, I'd be trying to find that out.

Update, 12 p.m.: Well, John Rodgers at the Nashville City Paper did just that - he followed up on my report and revealed in a breaking-news report posted on the paper's website minutes ago that the state Senator pushing the anti-blogger legislation is none other than Jamie Woodson, a Knoxville Republican. Perhaps Woodson, an attorney, ought to go have lunch with a certain prominent Knoxville law professor and blogger who understands the consitutions, state and federal, better than she does. Anybody know if there's a back-story on her battling with bloggers?

Update: 1 p.m.: Jay Bush, in the comments below, has the back-story that may explain why Sen. Woodson is pushing anti-blogger legislation. Bush:

Anyone who's followed the "Harber-gate" story in Knoxville will know why Jamie Woodson sponsored this bill. Former GOP political operative Tyler Harber had an anonymous blog called "www.caswalker.com" dedicated to attacking Woodson when she was running against Billy Stokes in the 2004 Republican primary. Apparently there was some pretty vicious personal stuff on there.

Update: It's late afternoon now, not even 24 hours since I first got Donna Locke's email alert. I'm still rather amazed by the speed with which the blogosphere took down a piece of bad legislation. Most of the work was done while the mainstream media slept - I wrote most of my original post while watching the Late Late Show with Craig Ferguson.

To its credit, the blog-friendly Nashville City Paper spotted the story in the blogosphere and jumped on it, quickly producing and putting on its website a good piece of journalism that advanced the story by identifying the senator who authored the legislation.

Knoxville News Sentinel reporter/blogger Michael Silence also posted information and links on his KNS-hosted blog.

I've checked the website of The Tennessean several times today, and it's been silent on the story - nothing posted to its "breaking news" items at the top of its web page and nothing on its politics blog. Perhaps they'll do a follow-up tomorrow or in the days to come, though there would seem to be not much left that has been unreported. Still, I'd like to think that The Tennessean would find a legislative assault on freedom of speech to be newsworthy. After all, the legislation clearly was aimed at bloggers, but it would have impacted newspapers too.