Free Speech, Defamation, and SD House Bills 1277 & 1278

This is a very interesting debate on the local blogosphere. The proposed legislation would make it easier for any person bringing an action for slander or libel to compel online content providers, including bloggers, to turn over information indicating the identity of anonymous commenters.

I am opposed to the legislation, as are Cory Heidelberger, Pat Powers, and Doug Wiken. Todd Epp, I understand had a hand in preparing the text of the bills. Professor David Newquist has not endorsed the bills, but I understand him to be defending the general idea. I note that the opposition consists of both conservative and liberal bloggers. This looks to me like what the blogosphere is for.

House Bill 1277 is the less objectionable of the two. As I understand it, once an action for libel etc. has been brought, content providers could be compelled to turn over any information they happen to have about the identity of the defendant. 1277 also protects content providers against liability in case of a judgment against the defendant. Without that, comments sections might well disappear from the internet, and that would shut down a major new venue for discourse. However I suspect such legal actions will be rare. If I am right, this provision would have little actual effect on the blogosphere. That doesn't mean it's a good idea. 1277 clearly poses a threat to internet anonymity, which I think is bad for reasons I articulated in an earlier post.

House Bill 1278 is a much more intrusive piece of legislation.

Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content.

This would require "all persons who allow internet posts" to go to a lot of trouble to keep records that might, conceivably, be wanted in a legal action. Apart from the unprecedented intrusion, that amounts to requiring all content providers to act as spies for the courts. I protest.

Moreover, it is not at all clear to me how compliance with this provision is possible. Site administrators can require that posts be signed and require a legitimate e-mail address be attached. But whether the signatures are genuine, or the e-mail addresses useful for identification, I have no way of knowing. I certainly don't know how to keep "internet protocol logs" that would be "adequate" for the purpose in mind here.

Professor Newquist and I agree at least on the question:

My original post on the Defamation Law amendments stressed the point that the concept of free speech involved in protecting the anonymous is in direct conflict with that which states that people possess the right not to be defamed and that free-speakers can be held responsible for their abuse of free speech.

The difference between us is that, given this "direct conflict" I would choose free speech over the right not to be defamed. There is a long history of libel laws being used to suppress dissident speech, in this country and elsewhere. Anonymity has been a big part of the defensive strategy.  The use of pseudonyms in the early republic, and recent attempts by repressive regimes to uncover dissident bloggers, seem to me to be of the utmost importance. I haven't read Handbook for Bloggers and Cyber-Dissidents, but I am guessing that Reporters Without Borders would agree with me. 

I also agree emphatically with a point my friend Cory Heidelberger makes.

I'm still waiting for examples of online speech of any sort that has done actual damage in South Dakota or libel cases in South Dakota that have been stymied by comment anonymity.

Yes. Could someone please show us an example of a case that was brought and was stymied by comment anonymity, or would have been brought under the proposed legislation? Could someone show that this is a significant enough of a problem to justify this legislation?

Comments

[Roger Meyer]

Under current law, can a journalist be compelled to reveal the identity of an anonymous source in a libel suit? If not shouldn't the same apply to them as one could as easily be defamed by a newspaper article or broadcast story as by a blog posting.

[KB]

Good Question, Roger. I don't know that South Dakota has a shield law, but some states do. The obvious purpose of such laws is to shield the anonymity of sources, in order to make it easier for journalists to uncover the truth.

Newspapers are much easier to go after. We know where they live. That's why Courts have been concerned to protect them against certain kinds of legal action. Newspapers are also professional in a way that most bloggers are not. Bloggers are amateur journalist, nothing more nor less.

[Erik Sean Estep]

KB: This is interesting. A couple of questions, what other state legislatures are following South Dakota's lead? It suprises me that SD is doing this, since my guess is that there is a libertarian culture out there. Also, how would this affect a site like Facebook? One of the advantages of blogging on FB, is that you have to show your "face" more or less, that is why I go there. I think that anonymity does allow for great irresponsibilty and a real cheapening of discourse on the 'net.

[KB]

Erik: the legislators pushing these bills are honestly and deeply concerned with protecting people's reputations. They ought to be. But I think that the means they choose are too broad. Your comments about Facebook are telling. There is no way to make everyone who posts take responsibility without shutting down very large avenues of internet discourse.

I agree that "anonymity does allow for great irresponsibility". That's the trouble with free speech. People we don't like may speak in ways we don't approve of.