Theo and John's Final Project

This has been an excellent project for both of us. It forced us both to think outside of our comfort zones and to expand what may have previously been limited opinions. I would quickly like to finish the sentiments that I was attempting to express last time. In the matter of a subject based website receiving a report of defamation, I do not believe that the website should only and always side with the business. That would defeat the entire purpose of the website, for nearly every business would always report any negative report to be defamatory. I also do not believe that the party accused of defamation should be voiceless in this conversation. John is right that the burden of proof has always rested on the accuser, not the accused. However, in this case, I think that we must view the defamatory statement as somewhat separate from its author. Upon receipt of a report of defamation, the statement should be taken down and presumed guilty, its author should be viewed as its attorney; he/she should have the opportunity to defend it, and if it turns out to be false, to walk away at the end of the day, assuming that this is not a regular occurrence. Both sides should have a chance to speak, but in the interest of protecting businesses, the comment must be taken down initially. One comment can cost a business vast amounts of money; assuming that the author is not actually harmed, the mental anguish that arises from having a post deleted pales in comparison to the fiscal losses that can be the result of a defamatory review.

I like John’s statement that “We can’t lump all speech on the Internet into a single can—there’s just too much variety, too many differences.” It reminds me of a fundamental problem with internet related legislation; the internet moves so incredibly fast that courts and legislatures have been repeatedly ineffective at controlling it. These official processes and proceedings take so long that they are very often outrun by rapidly changing technology that rends anything they do obsolete before it is even enacted. Attempting to qualify each section of internet policy with its own branch of legislation is ultimately unrealistic. By the time one item was passed, it would not matter any more and there would be a new issue that required out attention.

This project has been particularly fascinating to me because of the way we have organized ourselves for its completion. In these articles, I took a strong conservative position, arguing that online speech must be monitored, controlled, and potentially removed depending on its content. While I did not approach the position of ignoring the first amendment altogether, I advocated that we qualify it to a rather extreme point as it pertains to internet speech. I said that websites should be heavily incentivized to police their own content and remove statements that are defamatory or libelous. In reality, I am not at all a conservative when it comes to internet policy. I believe that freedom of speech in all its forms is one of our most important and unviolable constitutional rights. In my opinion, websites should not be required to police what their users posts; rather people should understand what they are looking at. If you are reading an anonymous review that is claiming that a contractor stole from their client, chances are you should take that review very lightly. I believe that section 230 is an essential shield for the internet to continue its current rapid pace of growth. Like John, I believed that touching internet speech was a clear violation of the first amendment. However, this project forced me to stand from the other side of the table, and unreservedly argue the opposite opinion, and overall, I have expanded my opinions greatly. I now believe that some regulation of internet speech is necessary in order to preserve its integrity. We must greatly limit its scope, but their must be some form of oversight.

I know that here I must sound like a bit of an internet pessimist. I am absolutely not. I think that no matter what path the internet takes, it will only be beneficial to us. Never before has there been a better entity to demonstrate the idea of a perfectly competitive market than internet domains. There is absolutely no obstacle to changing the way you do something online. If facebook was to begin maliciously filtering posts, people would immediately and easily begin changing their social networking habits. Already, a multitude of capable competitors to facebook, reddit, yelp, etc. exist. This existence forces these companies to adhere to their users’ interests. It is too easy to build a website, too easy to move to a new one, too easy to change for the internet to be a negative force. In our legislature, we require representatives in the House to seek reelection every two years in order to hold them to the people. If they violate our wishes, they will be removed from office. The internet works the same way, but with seconds instead of years. If websites violate our wishes, we can and will change. They will seek to exist unless they give us what we want. This gives us, the users, immense control over the internet, far more than the website creators. Public opinion controls the internet; this explains why it both moves so fast, and can never be a negative force in our lives. We can always just use it differently.

Thanks John, Professor Malone, and all of our non-existent readers- its been fun…

We’ve spoken a lot about libel, free speech, and Internet exceptionalism over the last blog posts that we’ve written.  After long thought, I’ve come to a few (tentative) conclusions.  But before I get to those, let me just address a few modifications I would make to Theo’s statements about how to address the problem of Internet libel.

First, I like his idea of dividing up content into user-based and subject-based.  We can’t lump all speech on the Internet into a single can—there’s just too much variety, too many differences.  Setting up a distinction between users and subjects is a crucial step to treating Internet speech seriously and making an effort to build a workable legal system.  I would agree with Theo that we can’t allow the subjects reviewed or scrutinized to edit the speech regarding them—to do so would contradict the reason for having such a system in the first place.

But, while I agree with Theo’s notion that there should be a system for allowing others to report defamatory content, I would be disinclined to have that system lean towards supporting businesses that claim to be defamed.  I believe that the system of Internet libel should follow the system of regular libel—the plaintiff has the burden of proof.  While the sites should certainly allow for plaintiffs to make their case, they should not be inclined to support the plaintiff’s point of view; to do so would be paramount to assuming the guilt of the poster, rather than taking the position that is held throughout our justice system: innocent until proven guilty.  I see no reason to allow those who claim to be defamed on the Internet greater leeway than those who claim to be defamed off of it; if we’re going to legislate libel on the Internet, we should legislate it so that it doesn’t contradict any of the fundamental pieces of our justice system.

Aside from that, I’d also advocate for a more stringent review system than simply: person reports defamatory content, website exams truth, website makes decision—the user who is accused of posting such content should have the opportunity to put forward his or her own case, rather than making the conversation one solely between the plaintiff and the website.  If I’m going to be accused of defamation, I’m going to want to be able to defend myself from that claim.  Any process of content review should involve the original poster; while the final decision should be left up to the website, that decision should not be devoid of the poster’s input.

And now, for my conclusions: I came into this discussion convinced that to touch speech on the Internet was to violate the First Amendment, that in order to keep the Internet free we mustn’t touch it, that things written online just aren’t the same as things published offline.  Needless to say, I think my perspective has changed.  I’ve come to understand that in order to preserve the sense of fairness that our society is founded upon, we cannot declare the Internet a no-man’s land, devoid of law or justice.  If we’re going to keep the Internet free, we have to make sure that the Internet stays fair, and in order to do that, we have to respond to libelous speech, not ignore it.  I’m still not convinced that the only solution to dealing with Internet libel is through the legal system, but I do know that it is a solution, and one that isn’t quite being utilized to its full potential just yet.  I think that in order to combat libelous speech, we have to have a system that allows one to combat it, and that system doesn’t really exist yet.  We don’t have to alter Section 230, we don’t have to make the Internet less free, but we do have to make it so that individuals unfairly victimized by anonymous or known posters can respond to that victimization, and in order to do that we have to have some form of oversight.  I think the ideas that Theo and I kicked around are a good to start to that process, but by no means the final end.  I hope that our discussion has led to a little more enlightenment of the issues that we’re facing; it’s certainly enlightened.  Theo, Professor Malone, it was good working with you both.

I agree with John in much of what he just posted. Freedom of speech policy regarding the internet is immensely complicated because it is absolutely imperative that websites like Reddit, Youtube, and even Facebook are not held entirely responsible for the content that users post on their sites. It would be impossible for them to actually vet every single post or video that is posted to the site and potentially catastrophic to their functionality. Users do not want their content to be edited by some arbitrary editor who works for the website that they are using. They want to maintain the integrity of their individual posts and wholly reject any sort of editing. Imagine if Facebook was required to actually look through each individual post to check the veracity of each thing that was written. Section 230 is essential. However, that does not mean that we cannot encourage websites to make every effort to effectively watch what people post. For instance, Youtube does use computer software to take down copyrighted material that is illegally posted on its site. In addition, the site makes every effort to accommodate to users who believe that their content has been violated by another user. Youtube has received criticism for their policy of removing content prematurely, but that is to be expected with their high volume of content.

While libelous material is very different from copyrighted material, perhaps websites like Yelp could implement a policy similar to Youtube’s. For example, in the Perez case, if Yelp notified Dietz about her review, and Dietz was able to submit a formal request to Yelp claiming that the review contained false facts, perhaps then Yelp would be able to properly evaluate the claim and take down the post if it was in fact false. Currently, these websites have the option to do so, but very little incentive. While Section 230 is necessary to help these websites, perhaps its scope does in fact need to be limited so that certain types of websites are incentivized a little to police their own content.

Perhaps then, user-contributed information websites should be divided into two large categories: those that host information on user’s pages, or on subject’s pages. For example, Reddit and Facebook posts and profiles are created by users, and then comments are all directed onto the pages for those posts/profiles. Facebook profiles act as the container for all information  pertaining to that user; Reddit posts store all comments regarding their content, but the initial poster or user has complete control over what appears on their profile/post. On the other hand, Yelp or IMDB reviews function somewhat differently. They allow viewers to post on the pages of their subjects, but do not allow the subjects to have any impact on the content. Yelp reviews are, and must be, not editable by the business that is getting reviewed. This is essential because it must be possible for readers to post negative reviews when they choose to, but it is also dangerous. Because the only party in this case that has editing power is the host itself, Yelp or IMDB, the burden falls upon them to edit when necessary. Until now, they have shirked this responsibility, claiming that they cannot edit user’s posts in order to preserve the integrity of their site.

The burden of editing needs to be reinforced for these types of sites. I am not suggesting that websites should be required to sift through each individual post before posting it, but it should be possible to report false claims that appear on the yelp page of your business and yelp should be inclined to act on the behalf of the business. In our legal system, the traditional axiom is that we would rather let ten guilty people go free then let one innocent be convicted. This ideal should be extended to review policy; we should place the value of removing libelous reviews far higher than the danger of accidentally removing actually legitimate posts. If a user’s post is deleted because their material was believed to be false, they might be upset, but chances are they will be largely unaffected by it. On the other hand, one false review can be so caustic to a business that it could ruin it. Review sites should make it very possible for businesses to report false statements, and should evaluate these reports critically, but with an inclination to help the business.

If a user is posting their comment under their own name or account, on their own profile or blog post, then the website that hosts it should not have to be involved in the process, as is already customary. The legal system can still get involved, but the host should be free from involvement. The difference is that when the comment appears on the page of someone else, who has no ability to remove a possibly defamatory statement, someone needs to be responsible for removing it. Short of going to court, the only possibility that I can see is the website itself. They must be incentivized to be responsible.

In principle, I agree with Theo’s statement that we have to regulate all or none of online speech.  A patchwork of regulation won’t work—things will inevitably slip through the cracks, and we’ll end up with a system with as much potential for abuse as we have now.  However, I’m not really certain how one goes about regulating online speech better than the way we have now.  As Section 230 stands, you can’t hold websites responsible for the content users post—they can’t be treated as “publisher[s] or speaker[s]” of content provided by people other than the site owner.  So the result of that legislation is that websites don’t have to worry about libel as long as they aren’t posting the libel themselves.  That means that those who do want to take users to task for libel means they have to go after the individual users themselves.  And why that’s all very good for keeping websites free and open, it’s not so good for those affected by libel.

Why?  Let’s look at the infamous AutoAdmit debacle, where two female Yale Law students had their entire reputations defamed online by scores of online anonymous commenters.  On that website, the two students were defamed at least as much as Perez’s contractor, with false claims of sexual promiscuity and venereal disease being bandied about freely.  Because of Section 230, the founders of the site are largely immune from any legal obligations, allowing them to keep up the libelous material for as long as they want.  The two law students have absolutely no bargaining power with the website—they can only target the individual posters, a task made rather difficult by the website’s lack of IP logging.  In this case, it seems clear to me that Section 230 proved immensely detrimental to the two students’ attempts to defend their reputations—they couldn’t get the website to take down the offending material, and suffered the consequences of it.  For them, Section 230 was the enemy, a wall that kept them from achieving a just objective.

And yet, for most of us, Section 230 is a shield.  It prevents disgruntled, powerful individuals from taking down speech they don’t like.  It’s an essential part of keeping the Internet open, of ensuring continued freedom of the Web. It’s why the Internet is what the Internet is—without the immunity promised to websites by it, how many websites would dare to allow untrammeled user content?  There’d be significantly more self-censorship, individual sites taking it upon themselves to regulate the comments users posted.  For some sites, like YouTube, Reddit, etc., that’d be an impossible task.  But, even with all these benefits, the downsides are clear: defending yourself against all of that anonymous speech is nigh impossible; if you’ve got a dedicated group of malicious individuals, there’s not a whole lot you can do to stop them.  And now we’re talking about regulating the entirety of Internet speech in regards to libel—the question is: how?

If the current system of individual takedown notices, individual suits against individual users, isn’t working (and it isn’t), where do we go after?  If it’s impossible for YouTube to regulate its own site, how is the government supposed to regulate the entire Internet?  With the current infrastructure we have, the government is no more equipped to regulate online speech than it is equipped to regulate offline speech; like Theo said, the Internet is just too big.  There’s too much content for efficient regulation, so we’re left the system we have today: one where individual lawsuits are costly, ineffective, and rare.  In the majority of cases, the individual whose reputation is damaged doesn’t have the resources to go after the person doing the damage; instead, they have to just sit there and take it.

For many people, that’s not enough.  There has to be another way, right?  And yet I can’t see a way that won’t either drastically tip the scales in favor of greater freedom or more restrictions.  If we force websites to self-regulate, we risk an era of self-censorship, of a Web without any kind of inflammatory comments, a Web without freedom.  If the government to regulate it, it’ll fail, unless such drastic actions like SOPA are taken.  Or, we can simply throw up our hands and declare all online speech to be immune, the “nothing” option, which will simply exacerbate the problems already in existence.  Given these options, I’m forced to conclude that the only way to continue regulating speech on the Internet is the system we have now—patchwork, largely ineffective, more a Band-Aid than a cure, but a better alternative than other options.

I think John brings up a very interesting subject to be addressed in this post: should the doctrine of Internet exceptionalism be applied in the case of free speech hosted on the internet? I believe the answer to this question must be a reserved “yes” for several reasons. First: The internet is a transformative technology due to its ability to scale dynamically. On any given day, the same blog post can be read by three people or three thousand people. Realistically, there are barely any ways to accurately predict the amount of traffic that something online will get, which greatly differentiates online media from what exists in the print world. In the print world, it is possible to divide speech into categories based on the degree of their reach; independently-produced libelous writing that does not reach very many readers has very little impact and thus can often be ignored legally, despite its illegality. We hold newspapers and official publications to higher standards because we can predict with reasonable accuracy that they will spread their ideas to large numbers of people. Thus we have stringent rules in place in order to make sure that all of their “factual” statements are in fact, factual. We tend not to regulate your average person’s speech because what they say tends not to really matter in the grand scheme of things. This has created a perception that the first amendment dictates that an average person can say whatever they want, which is not altogether true.

The internet changes this immensely. What we say online is instantly viewable to virtually anyone in the world. In addition, it is now so easy to search for and find information that what someone says online can have huge effects. Before, even if there was a libelous review of a restaurant in a newspaper, it was realistically unlikely that very many people would actually read the review before choosing to go or not go there. Perhaps if they were looking for a place to go without any ideas, they might look for a recommendation, but otherwise they would rely on hearing opinions via word of mouth or would just go ahead and try out the place. Now, however, most people will go on yelp or another review site both when choosing a restaurant blindly and when deciding whether to go to a particular one that they already had in mind.

The combined effect of all of this is that what your average person says online carries far more weight and is far more reaching than what your average person says offline. Therefore, it is necessary that we regard individual online speech with the same legal lens that we do other forms of speech that are capable of reaching vast amounts of people. Online posts have to be judged with the same scrutiny as newspaper articles because they operate the same way.

Now, the question here is whether or not the internet is exceptionalist, and previously, I answered “yes”. I would like to qualify that response: the law regarding speech on the internet does not need to be different from that of non-internet speech, just the way that we enforce the law. Our strictly legal definition of libel is a good one: maliciously printed false factual information. If we enforce anti-libel law, we benefit society by making factual statements separate from opinions; we make factual statements trustworthy and allow society to actually believe and rely on some of the information that they read. The difference is, where in the real world we cannot and do not need to monitor the content of all factual speech, online we have an obligation to do so. The internet is too big, too fast, and too unpredictable to try and limit prohibition of libelous speech.  It is impossible to predict who will read a libelous post on a review site or even a blog. It could be a few or a few hundred thousand; we cannot accurately predict what will happen, nor can we effectively monitor it, due to our tendency to create “viral” media that rapidly acquires large numbers of viewers. Anyone can host their own blog that could get more viewers than the New York Times and delude many people with false facts. We have to regulate all of this speech, or none of it, because realistically the internet is too fast to try and regulate it on a case by case basis. We have to hold internet speech up to the law because otherwise, we will lose the ability to trust the internet. Websites like yelp are immensely useful, but if people are able to post false statements of fact, then they will lose their purpose. Similarly, blogs are an excellent way to distribute valuable opinions and it is immensely important that people be allowed to freely express their opinions, but at the same time, we have to restrict the spouting of false facts; otherwise blogs will lose all of their credibility and value.

Though I’m not wholly convinced that treating online comments as fair game for libel lawsuits is a good idea, Theo’s arguments have led me to consider alternate solutions to simply letting the current situation of online immunity for statements stand.  Given the facts of Perez’s case, it doesn’t seem right or just to allow Perez to defame the contractor’s good name without cause, no matter how much she may dislike the man personally.  I agree with Theo that there is a line to be crossed in online commenting, and that once you begin to make statements of fact that aren’t actually factual, you cross that line.  Given what I know about Perez’s case, it seems she crossed that line, and in order for the contractor to gain just redress, we cannot simply wave our hands and declare Perez immune from litigation simply because her comments were posted online.  So, in light of our discussion, I’d agree with Theo (with reservations).  We can’t allow libel to take place online without some way of addressing that libel.  The question is, are the current laws we have in place to deal with libel sufficient for dealing with online libel as well?  Theo seems to think so; I’m not wholly convinced.

I hesitate to declare the axiom of Internet exceptionalism here, but I think it’s something worth considering.  Are online comments identical to offline ones?  Can we say that libel online is exactly the same as libel printed?  Is a website like Yelp equivalent to a newspaper like the New York Times?  In the early days of the Internet, I’d say no to all these questions.  The Internet then was limited, specialized, used by few, and certainly not ubiquitous.  Now, it is, if anything, more ubiquitous than printed media within American society, more relevant, more widely used than anything before.  What you say on the Internet lasts longer than what you say off of it, and anyone can read it.  So given this, libelous statements on the Internet can be at least as dangerous as libelous statements not on the Internet, because of the ubiquity of the Web.  In this sense, Theo is right that Yelp functions like a newspaper in providing ideas, because it does have the power to materially affect the businesses reviewed within it, as we see in Perez’s case.

And yet, I would once again caution against declaring all online speech to be fair game for libel, if statements of fact are made within the speech.  Perhaps, for websites like Yelp, it is not unreasonable to allow for such speech to be treated as libel, because those websites are designed to provide supposedly factual reviews of other services, and if they do not provide such facticity, they are, then, libel.  But I don’t think it’s a good idea to treat the entire Internet as synonymous with Yelp, because I think there are great portions of the Internet (for instance, anonymous user-message boards) where not being sued is crucial to the ability for such sites to exist.  Therefore, if we are going to extend the ability to sue for libel to the Internet, I think we would need to decide whether we want to extend that to all of the Internet, or only to sites that have been shown to materially impact others reputations, or only to sites that satisfy some other standard that I haven’t been able to fabricate.  The point I’m trying to make that I think it’s a good idea to allow for some redress of libelous statements, and yet I think we also need to balance the interests of free speech while we formulate new policy on the Internet, and we need to do so in a way that both encourages continued free speech and discourages libelous speech.  I’d be interested in knowing how my partner thinks we can address such an issue, since I’m not quite certain how it’ll be resolved just yet.

John brings up some very interesting points in his post that I would like to address, but first, I am going to expand upon my previous comparison of a website like yelp to a newspaper in light of his refutation of my assertion that websites like yelp are beginning to blur the line between an individual’s opinion and a newspaper’s article. Our current legal structures do not seem to contain guidelines on how the courts should view these websites. This is altogether not that surprising; until very recently, such things would have been unable to even exist. What defines the uniqueness of a website like yelp as opposed to what the world had previously seen is basically the vast degree to which it is used. Previously, if someone wanted to tell people that a certain restaurant messed with the food or that a contractor was stealing from a client, there was not really all that much harm they could do. The second rule of libel law is that harm must be shown, and previously, it was actually quite difficult to harm someone with false ravings. Realistically, there were only so many people you could tell, most of whom would not really care about your claims. Consequently, while it may have been illegal to write down and attempt to distribute your reviews, it hardly ever mattered in terms of something like this, simply because of the lack of impact that a person could have by spouting false claims.

However, the Internet has rapidly changed this by making people’s reviews far more accessible and intransient. Now, if someone publishes a plausible but false “factual” review on yelp,  they can reach hundreds or thousands of potential customers and severely impact the business of the firm in question. While it is true that people do not entirely trust the opinions that they read on yelp, it is very difficult to disregard the statement that a contractor stole from a client once you have read it. In addition, it is so incredibly easy to find someone else using the same site, people will probably not even take the risk, all because of one false review.

“Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice.” This definition means that one cannot simply write anything on yelp and expect to be saved by the fact that yelp is meant to be an opinion based website. The opinions expressed on the site are perfectly fine, but as soon as a user begins to write statements of fact that are actually false, they are beginning to defame their subject. In this case, it is very likely that Perez seriously harmed Dietz’ practice with her false statements of fact. She had an opportunity to verify whether they were true, and the result of her attempt to investigate and the police’s investigation was nothing linking Dietz to her accusations. After that, it would have been perfectly legal for her rail on yelp for hours on end how much she disliked Dietz, how she thought he had done a poor job, how she was missing jewelry and though the police had not charged him she still thought it was him, but that is all she could do. Claiming that he stole from her when he most likely did not crossed the line. Previously, this line would not have been all that important – who would have really listened to her if not for a website like yelp? – but now she seriously harmed Dietz’ livelihood and reputation, which is clearly libel and defamation. Yelp reviews thus need to be treated with greater legal scrutiny than some might suggest.

I would like to extend this argument in light of John’s McDonalds example, for that brings up an excellent example of how this can be very dangerous: “If every online commenter who wrote a bad review of McDonald’s knew that they could potentially be facing a libel suit for that review, how many reviews would there actually be?” Forgetting McDonalds for a moment, lets look at the case of Anna Ayala, a woman who infamously and falsely claimed that she had been served chili at a Wendys with a human finger in it. In reality, she had planted the finger in an attempt to extort money from the fast food chain, and ended up going to jail. “Ayala’s initial claim that Wendy’s was to blame for the finger in the chili set off a firestorm of negative publicity that the restaurant chain estimates cost it $21 million in lost sales.” Putting aside her attempt to extort Wendy’s, if she had merely posted on Yelp that she had found the finger. should this have been legal? She claimed that she found a finger in her chili, a (false) factual statement, and with that statement harmed the chain immensely. All it would really take to ruin a restaurant’s reputation would be a review claiming that there was a finger and perhaps a staged picture. Is this not clearly a dangerous form of libel that should not be protected by the First Ammendment? This is altogether not that different from Perez’ case, as both involve false facts that are both believable and widely viewed. This behavior greatly harms the businesses in question and thus clearly and justly constitutes libel.

In this case Perez spouted an opinion that her contractor was a poor choice and a bad contractor. She then went on to back that up with another opinion which was that Dietz, her contractor, had stolen from her house. The problem was that she presented this second opinion as a fact within her review on yelp. Websites like yelp that serve as a medium for user reviews have become so widely used that they are becoming somewhat like newspapers in their level of importance. There are two main reasons that it is illegal to libel someone in a newspaper. First, newspapers are generally held in very high regard by their generally extensive network of readers. Second, they claim to be presenting facts, things which cannot easily be verified by their individual readers, but are rather accepted and potentially utilized by the readers.

Under these qualifications, it turns out that websites like yelp are actually becoming very similar to newspapers. The amount of people who use sites like this is enormous and is growing rapidly. People use yelp not only to find out information about companies that they are interested in, but also to find and filter lists of businesses that they could potentially use. For instance, “In 2011 a study by Harvard Business School found a link between an uptick in a Yelp! review rating and an increase in revenue for restaurants. On average, the study found, a one star increase on Yelp leads to a 5 to 9 percent increase in revenue for that particular restaurant.” This level of significance indicates that people greatly rely on information that they gain from yelp in order to make decisions that will impact their consumer practices.
In addition, the main point of this case is the way in which Perez attacked Dietz. She did so by claiming that he had committed several crimes against her and essentially attempted to ruin the reputation of a man whose livelihood is dependent on a good reputation. In claiming that he stole from and vandalized her home, she essentially rendered him unhirable for anyone who reads her review, which is likely to be extensively read and believed. However, it turns out that Dietz was apparently not responsible for either of her charges. The police have not charged him for stealing and courts have dismissed charges stemming from the alleged vandalism. Thus it turns out that the so-called “factual” evidence that she spouted in her review was likely false. Because she did not present it as an opinion, but rather a statement of fact, she essentially sued Dietz for damages and hurt his business without ever succeeding in court.
Freedom of speech is very important, but it must be used to help the public as opposed to hurting it. In this case, Perez had a clear course for how she should express her opinion; she should have said whatever she wanted on yelp as long as it was an opinion and not spuriously presented as a fact. In the meantime she should have continued her endeavors through the courts. It was not Perez’ duty to ruin another person’s career without any proof of her insinuations. The way through which she did so was and should be illegal.

So, just a short recap of my partner Theo Levine’s comment for all my many readers:

What I basically got from Theo’s post was that it’s no longer acceptable to treat websites like Yelp as subject to different rules than such organizations as newspapers and other print media that present claims of fact to their readers.  Theo suggested that false statements on the Internet should be subject to the same standard as false statements off the Internet–if it would be libel in print, it should be libel in cyberspace.  I think there are a couple of Theo’s assertions that I can agree with, some that I cannot.

First, that websites like Yelp are considered to be indistinguishable from newspapers, on the grounds that those who peruse Yelp will treat the content on the website with the same degree of respect and credibility that they would view print media.  While I can’t speak for how users view Yelp’s credibility, I think it is possible to infer that, given the nature of the website, we can say that it is not, in fact, indistinguishable from a newspaper.  Newspapers are manned by professionals, individuals who have been trained to report accurately, to publish the facts, and yes, to avoid libel.  Then there are websites like Yelp, who rely on user-generated content to provide their services.  Their users are, by and large, not reporters, not looking out for what may or may not be libel, and certainly not viewed as highly credible.  Anyone can write a review on Yelp, just as anyone can read one, and that democratic aspect means that, in at least one crucial aspect, Yelp is not at all like a newspaper.  The people writing for it probably have a very limited conception of libel–they’re just writing about their experiences, good or bad (unless they’re malicious and out to destroy someone’s reputation, I suppose).  But given the demographics of Yelp’s user base, it doesn’t seem to make much sense to classify a website and a newspaper in the same group of entities.

Putting aside the classification debate, I do think that Theo’s correct in saying that “It was not Perez’ duty to ruin another person’s career without any proof of her insinuations.” I don’t think it’s right or just for people to be able to publish false statements online with impunity, especially given the permanent nature of the Web–things tend to stick around, years after you thought they were gone.  And yet, at the same time, I worry what will occur if we decide that the solution to combating false statements is to allow for each person who writes a potentially false statement on a blog or a review site or a comment to be sued for libel by a person who didn’t quite like what they were saying.  In the case of Perez, perhaps the contractor was justified in requesting that her review be taken down; if he didn’t, after all, do what she said he did, then she had no moral justification for putting it up there.

And yet I wonder what will happen if the court’s decide in favor of the contractor.  Then, it seems to me like the precedent set would be to declare all online comments fair game, if they contained a potentially libelous statement of fact.  As we saw in Perez’s case, the line between opinion and fact is seldom easily seen.  If every online commenter who wrote a bad review of McDonald’s knew that they could potentially be facing a libel suit for that review, how many reviews would there actually be?  We’ve already seen the first inklings of a chilling effect with Perez’s case: some of the comments of negative reviewers of the contractor say things like “It makes me almost nervous to post this negative review.”   Already, people are getting scared, and if people get scared they start to self-censor.  If Yelp ends up as a website like the kind Theo suggests: ” she should have said whatever she wanted on yelp as long as it was an opinion and not spuriously presented as a fact,” how useful is such a website going to be?  If users aren’t allowed to present facts to back-up opinions without fear of being sued over those statements, how will such reviews, devoid of any more substance than “I didn’t like this restaurant, but I can’t specific examples for why I didn’t like it”, be of any use at all?  And think of how many other sites rely on user-generated statements–Amazon, for one.  I worry that if we explicitly say: online comments are fair game for libel, we risk drastically chilling such comments and hobbling the usefulness of such input overall.  At the same time, I worry about how to address malicious comments, and would welcome any solutions put forward.

It seems hard to believe that in this day and age of openness and over-sharing that free speech is still being threatened on the Internet, and yet a recent decision by a Virginia judge continues to extend this age-old trend.  A woman named Jane Perez is currently being sued by a former contractor for posting a bad review on Yelp—if she loses, Perez could be liable for up to $750,000.  Given the fact that the Virginia judge just issued a preliminary injunction in favor of the contractor, it seems that she might have to pay up after all—and for what?  Posting negative comments online about services she was unhappy with.

The only good thing to come out of the judge’s ruling this December was the fact that he refused to hold the actual websites—Yelp and Angie’s List—liable, thanks to that ever-useful Section 230.  But despite not touching that section, the judge’s decision is still incredibly damaging to advocates of free speech.  If his decision is upheld in the higher courts, the precedent it sets for online speech could immensely damage the current community online.

Consider the consequences of his decision: as the law stands now, online reviews of services are held as opinion, protected under the First Amendment of the Constitution.  This decision treats such reviews as statements of fact, able to be sued, liable to be treated as libel.  In essence, this decision could be interpreted as allowing online reviewers to be sued if they have an opinion the service provided is unhappy with—they didn’t like your product and said so on the Internet? Sue them.

I don’t think the chilling consequences of this decision can be overstated.  If it becomes common practice to sue individuals over reviews they wrote on the Internet, it will be common practice to no longer write reviews.  Considering that millions of customers these days rely upon other customer reviews in order to make shopping decisions, decisions to these could cripple the community currently in place, a loss for all but the service providers.

Now, it’s true that some of the things Jane Perez said had elements of fact in them.  She alleged that the contractor stole jewelry from her home, damaged it, and did not perform the work she contracted him to do.  Statements of fact, certainly, and if they were published in a newspaper, printed for all to see, her contractor have grounds to sue her for libel, providing of course, the facts were untrue.  But is it wise to treat Internet speech as the same as printed media, to treat online commenters as subject to the same penalties as newspaper corporations?  I think not, and I think that, if we do so, we may find that there are far fewer online commentators, and far fewer useful comments.