Monday, December 20, 2010

On the frontiers of blogger law

Posted By on Mon, Dec 20, 2010 at 7:26 PM

From time to time, I like to share developments in the world of online law -- both to give a heads-up to other bloggers, and to give me an excuse to write about anything other than the Parking Lot Imbroglio. (Although on that score -- kudos to the crack attorneys representing city firefighters for recognizing that obscure concept known as the separation of powers! Better late than never!)

Anyway. The case before us today is Wolk v. Olson. And the question at stake for bloggers and old media alike is this: If you post something libelous online, for how long will you be vulnerable to a lawsuit?

For print-edition publications, Pennsylvania's law is pretty straightfoward: If a would-be plaintiff doesn't act within a year after the material is published, he or she is SOL.

But print-edition material -- as I'm frequently reminded -- often ends up lining bird-cages, or wrapped around fish. The paper is soon remanded to the dusty vaults of the library's microfilm department. 

Online, the material can remain in circulation for years. But generally speaking, courts have ruled that the same standard applies: It's called the "single publication rule" -- once you hit "post," or the issue hits the newstand, the clock on the statute of limitations starts ticking. And a would-be plaintiff doesn't get to reset it just because they read the paper late.

But what about the public figure who is targeted by an obscure blogger ... who doesn't even see the post until, say, two years after it is first published? Consider how it feels for someone to Google his or her name and suddenly discover your scurrilous post ... a post he or she may never have seen before, but that his or her peers may have been snickering about for months. Can a person argue that in some cases, they should have extra time to sue you for it?

That's the question raised by Wolk v. Olson.

Arthur Wolk is a highly successful Philadelphia attorney who was the subject of an unflattering blog post at the website Overlawyered.com.  The post was dated April of 2007, but Wolk didn't spot it until April of 2009 -- well after the statute of limitations would ordinarily have expired. But Wolk promptly demanded a retraction, and when one was not forthcoming, he sued the website the following month, alleging defamation and related offenses. 

A few things make this interesting. One is that Pennsylvania's "single publication rule" doesn't specifically mention online content, and I'm not aware of any cases that address it. (Neither is the Citizen Media Law Project.) And based on a previous state Supreme Court ruling, Wolk contends that he deserves an extension under what's called the "discovery rule." That rule essentially "stops the clock" on a statute of limitations until you discover your injury -- provided there was a good reason you didn't know about it sooner. As the Supreme Court has put it, a defendant has to demonstrate an "inability ... despite the exercise of reasonable diligence, to know that [one] is injured."

So far, the courts have not been kind to Wolk's argument. In August, a federal judge ruled against him, holding that the discovery rule can't be easily applied to statements made in "a mass medium, like a website." What's more, if the rule could apply "no matter how public or ancient the injury might be, then [the rule] will have nullified the stability and security that the statute of limiitations aims to protect."

But the lawsuit isn't over. Wolk's attorneys have made a new argument, claiming the statute of limitations did not expire ... because the April 2007 was republished under a different URL in May 2008. What's more, Wolk contends, the new page's URL was configured to make it more visible to search engines like Google than the old site.  

"The search engine optimization was an intentional and calculated effort," the Wolk pleading argues -- an effort that "optimized the searchability of the [blog post] and thrust it into the forefront of Google-like search returns."

I can't speak to the technical merits of Wolk's argument -- it has a lot to do with punctuating URLs with hyphens rather than underscores. Nor do I know whether the blog post is more visible now than it was in 2007. But the argument could open up a whole new can of worms.

Remember the single-publication rule? As the name implies, that applies to single publications. Courts have held that if you publish old material in a new context -- anthologizing newspaper columns in a book, for example -- the clock on the statute of limitations could be reset.

The question, then, is whether changing your URLs meets that threshhold. For its part, Overlawyered.com contends that the new URLs were the result of a routine software upgrade. "Blogging software ordinarily assigns a distinctive URL to each archival post," the site points out. And when that software is updated, "the URLs attached to these archival posts are often modified slightly." Overlawyered.com argues that such a change "is more akin to moving a book to a different shelf than it is [to] publishing a revised version." Ruling for Wolk, the site argues, would put every blogger at risk for a new round of lawsuits anytime a blog host upgraded its software.

The Society of Professional Journalists, meanwhile, is filing a "friend of the court" brief in the matter.  "[B]logs deserve the same protection given to other mass media," the SPJ contends. And the precedent here could be dangerous for the MSM too: For pro journalists, "[T]he implications of trying to find years-old notes that may no longer be available due to storage issues would make a defense difficult, if not impossible."

As anyone who has seen my desk knows, I will support any argument that protects me from needing to dig up years-old shit. And if Wolk prevailed, it'd be a mess for everyone, old media and new. 

Still ... does Wolk have a point here? The single-publication rule, it seems to me, assumes that a person's reputation will most likely be damaged immediately after publication. The newspaper hits the stands, the headlines scream your name ... but as time goes on, the ink begins to fade, and with it people's memories. 

In the online environment, though, content can always be refreshed. Google results can change from day to day, and they can be goosed through search engine optimization efforts (though whether that happened here, I couldn't say). Wolk's lawyer echoed this point in August: "Unlike 'mass media' print defamation claims, where the publication is pervasive for a short time but soon becomes yesterday's news, the Internet is a different animal."

My guess is that Wolk will lose this round as well: A ruling in his favor would just be too disruptive toward the way we produce, and consume, media in the 21st century. The law was written to address a media environment much less fluid than our own, which means a lawsuit may not undo the damage new media does. In fact, by trying to erase the Overlawyered.com post, Wolk may have driven more traffic to it ... which may explain why the post in question now shows up as the #3 result when you search Wolk's name.



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