Friday, May 22, 2009

Toughest job in the world

Gawker's libel lawyer.

Doesn't "Sometimes we get a tip that's just so fun that we can't bear to check it and find out that maybe it was just made up by some loon and/or convicted sexual predator" + publishing that tip = we have "reckless disregard of whether it was false or not"?

UPDATE: Fred von Lohmann of EFF suggests in the comments that Gawker is protected here by Section 230 of the CDA. Is he right? I'm not so sure.


  1. Of course, if by "publishing that tip," you mean republishing material provided by a third party, then CDA 230 is an absolute defense to defamation claims. So actually, I think being Gawker's libel lawyer isn't as hard as being its copyright lawyer, where you have to figure out the fair use questions (because they aren't going to be taking it down when they get a DMCA notice).

  2. Fred --

    Do you really think this is such a slam-dunk for Gawker on the Section 230 defense?

    This isn't like a prototypical 230 case, where, say, a blog accepts comments and isn't responsible for them. This is a news organization that decided to write a story about Ms. Chang. Gawker itself published this story, with "evidence" in the form of an anonymous quote provided by a tipster. Does this make Gawker an "an interactive computer service" within the meaning of 230? I'm not so sure.

    Think of this example: an on-line only publication writes the following story: "John Smith molested his 5 children over a period of 7 years, his neighbor said today. 'I saw it with my own eyes, right over the fence,' said neighbor Bill Jones, who has lived next door to Smith for 10 years on this quiet suburban street..." Only Jones is completely lying, and Smith is innocent. Is the publication completely immune under 230? My intuition says that can't be, but I'm willing to be convinced otherwise.

    I can't think of any cases that really explore the boundaries of Section 230 immunity in the context of news organizations' reliance on sources. Did you have one in mind?

  3. Fred probably has in mind cases like Batzel v. Smith, 333 F.3d 1018, and Barrett v. Rosenthal, 40 Cal. 4th 33, which may represent the high-water mark of Section 230's protection of electronic publishers. In both those decisions, the courts applied Section 230 outside of its original context as a protection for ISPs to account for the automatic nature of publishing on the Internet and applied it to traditional, human-mediated editing and publishing that happened to use electronic distribution. Fair Housing Council v., 521 F.3d 1127, has fortunately backed off of that standard somewhat, although it's still a bit unclear how the en banc majority's "contributes to the illegality" standard is to be applied in defamation cases.

  4. I don't see how this is 230 republishing when Gawker gets a series of tips, and picks and chooses which ones to republish based on their hopes for hit counts.

    Ted F.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.