Newspapers are free to libel and invade privacy using their websites
By Michael E. Abrams
Editor, Florida Wildflowers
Current law defines Internet Service Providers as "common carriers" with no more obligation to police their associated websites than the telephone company has to monitor what is carried over its lines. Under the Digital Millennium Copyright Act, at least under copyright law, if carriers are notified by me or anyone else of copyright infringement, they have a choice, but not an obligation, to disable the website pages involved. Some argue that the use of the DMCA for this purpose is beginning to have a chilling effect on First Amendment rights. But copyright holders are the originators of materials, and they are getting ripped off in many respects.
It's no wonder that Google and its new purchase You Tube were sued in 2007 by Viacom for $1 billion for copyright infringement for running videos that apparently don't belong to them. It's big business, and that means money.
In our little world, we discovered that someone had been ripping us off in the name of "Madonna" for five months. Madonna's "personal blogspot" registered to Google took a copyrighted photograph from our wildflower site, and used our original ideas (and prose) from us without so much as crediting the source.
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Who is Madonna? I don't know who runs the unsigned Madonna "personal" website, because the the person or corporation or whoever does this is, as you might expect, doesn't post a real name. Try to find out who owns the site by going to "whois" and all you find is that "blogspots" are all registered to "Google." At the bottom of the website to the left, you will see "Kabbalah Lesson 12" on "madonna's personal blog" with picture and information taken from our copyrighted essay The Kaballah and the Passion Flower without permission. It was running from May 21, 2007 to September 26, 2007, and while it apparently has been removed by its anonymous owner, it still can be found by anyone who goes online and searches Google for "Madonna and passion flower" and clicks on Google's "cache." We admire Madonna, the "queen of pop" but we don't admire plastic Madonna imitators who steal our stuff. The website owner says that many people "don't get the joke" of what he or she is doing with a Madonna website, and we sure don't get the joke when our copyright is violated and our original ideas are simply taken without crediting us. We don't get the joke when essays about the Kabbalah signed "M" are put onto the website to try to make readers think that Madonna actually has some sort of input into this spurious website. Madonna has an interest in Kabbalah, to be sure. She wears the spririual red string. She even went to Israel to attend a seminar on Kabbalah. But the idea of relating the passion flower to the Kabbalah is original with us. She's a very intelligent lady and her own person. We think Madonna and her attorneys ought to be just a little miffed at what goes on in her name, but maybe celebrities don't have the time to sue these parasites who put up such websites. We went to talk to a lawyer about this. Apparently the only way we can find out who runs the website is to sue Google and sue "John or Jane Doe" and hope that Google comes forth with the names. |
Google should share the negligence
Google has a set of forms by which to complain about such stuff, but that does not answer what I consider (and a jury might consider) to be the legal obligation of Google to take responsibility and at least share the negligence.
The argument can be extended for libel or invasion of privacy and the damages actual or implied that may accrue when such sites are put up. By law, Google is considered a common carrier by the courts, and, as a chartered libertine, simply is immune, even though it was an accessory.
In Australia, recently, under stricter laws, ISPs are now looking for any copyrighted materials. Some ISPs aren't allowing the posting of pictures on these blogs, because, naturally, many of the pictures are in violation of copyright. And, as we say, in other countries, ISPs are legally responsible.
The Tallahassee Democrat
The newspaper I subscribe to, The Tallahassee (Fla.) Democrat, shows how the loopholes are applied.
It placed a print story on the web about a police officer accused of child abuse, and left out the name of the officer, at the request of the sheriff's department, to protect the child, we think. Anyway, the Democrat allows live comments on its web pages and one reader wrote in a name -- which immediately, we think, tied a person (the real offender or not) to the child abuse story.
We questioned the editor, Bob Gabordi, about the Gannett chain paper's responsibility. He responded by email and in a column that the newspaper regards the web response space as an ISP, and is not responsible for its content, except in the "good Samaritan" exception to prune out, say, obscenity. The actual writer is the only one legally responsible, wrote Gabordi.
Mr. Gabordi is a very good editor, but ethically adrift in this case.
Unlike Mr. Gabordi, the writer in the "comments" section is anonymous, and only the newspaper knows who this is.
Let's say a court orders a newspaper to divulge the name of someone who posts a libel. How many newspapers are going to comply without a fight? How many will quickly abandon their flags and produce names of web posters or readers?
Did the writer provide the correct information when he or she signed up to provide comments?
Wittingly or unwittingly, the newspaper erects a shield against responsibility and, in effect, provides a forum for the writer to take potshots at anyone. even if the writer is a ghost, or let's stretch it, one of its own reporters who doesn't like how his story was edited.
The scales of justice must rebalance themselves
Who is responsible for libel, for invasion of privacy, for copyright violations?
In the printed paper, the newspaper is responsible.
In a web version, some important ethical and legal principles are flung down and danced upon.
Newspapers around the country, infatuated with the Internet, are in a flight from ethical standards. What can never appear in the regular pages of newspapers now appears anonymously on their websites, with immunity to the news organization. As we have said, shooting arrows blindly into the air will only result in someone being hit.
We don't think a jury anywhere will buy editors' current arguments.
Sooner or later, the courts will make a legal distinction between news media websites and ISPs.
Meanwhile, Madonna has always justified our love. The material girl apparently didn't steal our material. We like Madonna. We like the fact she has adopted an African child out of poverty, and that she seems to have a social conscience in this way. It's these plastic Madonnas we don't like.
M.E. Abrams
Sept. 28, 2007