iBrattleboro blog weaves tangled web
By DANIEL BARLOW Vermont Press Bureau | December 02,2007
"You are being sued," read the five-page summons delivered to Christopher Grotke and Lise LePage last month.
For four years, Grotke and LePage have run the Web site iBrattleboro.com, a sort of online town common for Windham County, where residents post breaking news stories and chat about local events.
The trouble started in September when the executive director of the local ambulance service, who was then under fire for his management style, posted a comment on iBrattleboro that accused a subordinate of having an extramarital affair. The woman is suing the ambulance director, along with Grotke and LePage.
"We would like to say more about this, but circumstances force us to be circumspect for the time being," LePage wrote on iBrattleboro last week. "What we can say is that we believe the suit to be without merit and (we) will be taking appropriate legal action."
Whether the Web site is legally responsible for publishing an allegedly libelous statement from a public official will be decided in the courts. But this suit and other attempts to regulate speech on the Internet highlights a larger social and political issue that governments and organizations will soon need to address.There are about 106 million blogs on the Internet now, with an estimated 120,000 new ones launching daily around the globe. The question is: With a worldwide platform that gives everyone a soapbox, where is the line between personal expression and ad hominem attacks?
"The government is still playing catch-up with the Internet in a lot of areas, especially around speech," said Traci Griffith, an assistant professor of journalism and mass communications at St. Michael's College in Colchester. "It's too bad we didn't have the foresight to address some of these issues earlier, but we are going to see new attempts to regulate the Internet in the next few years."
Law enforcement efforts on the Internet have mostly focused on child pornography and solicitation, but issues such as cyber-bullying and threats, especially between youth peers, are a growing concern, said Brattleboro Detective Erik Johnson.
"It's actually something that we are just starting to become more aware of, thanks to our school resource officer," said Johnson, a member of the state's Internet Crimes Against Children Task Force.
Vermont has an online harassment criminal statute. Its "disturbing-the-peace-by-telephone" misdemeanor charges have been extended to "electronic communications." A person convicted of this crime faces a penalty of up to $250 and three months in prison.
"Essentially, a threat is a threat whether it has been delivered on a telephone, street corner or on-line," Johnson said.
Representatives of the Vermont Attorney General's Office and local state's attorneys interviewed for this story said online harassment cases are rare compared with other forms of harassment.
But as a generation accustomed to communicating via MySpace or LiveJournal grows up, police and prosecutors said they expect to tackle more criminal cases surrounding Internet statements.
"From our perspective, there are a variety of statutes that cover conduct on the Internet," said John Treadwell, an assistant attorney general in Vermont. "But I'm not aware of any cases yet where we have prosecuted over content on a blog or another sort of posting on the Internet."
Policing online comments is a big gray area, Johnson said. Clearly, if there is a threat involved, police can act, he said. But unless the person is a minor, police can't stop others from posting embarrassing stories, rumors or pictures of them on the Internet.
"From a criminal standpoint, we can't do anything, and civil law is not my area of expertise," he said. "People, especially teenagers and kids, just have to learn to be careful."
The consensus from many media and law experts is that iBrattleboro will not be found responsible for the allegedly libelous statement, although some experts disagree.
"I think this lawsuit against the Web site will be dismissed," said David Ardia, director of the Citizen Media Law Project at the Berkman Center for Internet & Society, a research program at Harvard Law School. "There have been several cases that show that Web sites are not responsible for these kinds of comments."
Ardia and others who believe the suit against Grotke and LePage will be dismissed cite as evidence the 1996 Communications Decency Act, a law that attempted to regulate indecency on the Internet, but later had many of its provisions struck down as unconstitutional.
One of the surviving provisions in that law extended the legal distinctions of "publisher" and "distributor" to Internet companies – meaning a Web site could claim it was only the distributor of the information, and therefore not liable.
That provision rose out of lawsuits against the early Internet companies who were operating online bulletin boards for their members. The two distinctions date back to early legal decisions regarding newspaper libel, which protected distributors, such as newsstands, from libel suits.
"It essentially says that bookstores, newsstands and libraries are not responsible for the content because they are distributors," Ardia explained. "The courts have clearly held that this immunity extends to Web sites and bloggers."
So far, U.S. courts have taken a "hands-off approach" to regulation of Internet speech, according to Oliver Goodenough, a professor of law at Vermont Law School in Royalton.
Meanwhile, attempts at the state level, including a 2003 Vermont law struck down by the courts a year later that attempted to prohibit the distribution of "harmful" materials to minors via the Internet, usually face major constitutional hurdles, he added.
"By and large the courts have been sensitive to allowing legitimate, robust discussions of politics and other issues to continue untouched," Goodenough said. "On the other hand, they have also been sensitive to allegations made against private people."
But not all lawyers agree. Robert Hemley, a Burlington anti-trust and libel attorney, said the same standards that apply to newspapers also apply to Web sites. He said the plaintiff has a case if it's possible to prove the information was false.
"When you publish this information, you are as liable as if you had made the actual statement," Hemley said. "Because this was done over the Internet doesn't change anything. The medium is not the issue, the message is."
One sticking point may be the degree of control that Grotke and LePage have over iBrattleboro. Stories posted on the Web site are screened before they appear, but comments are not.
"The Web site operators could lose that immunity protection if it can be shown that they made material changes to the statement before it was posted," said Ardia. "That shows they take a more active role in moderating and editing."
The citizen journalism movement has increased the number and diversity of voices in modern media, but it will soon confront the ethical issues that traditional journalists do, according to Griffith, the journalism professor at St. Michael's.
"My journalism students take a media law and ethics class for a reason," she said. "Regardless of how the allegedly libelous statement is made, the effect on that person is the same."
Legal experts said they will be watching the iBrattleboro case for reasons other than Web site liability issues. Because the burden of proof is on the plaintiff to show that the allegation of an affair is untrue, testimony taken in preparation for a civil trial could get personal and messy.
Also, observers are interested in seeing if the court sees the plaintiff – a private employee of the ambulance service who had previously spoken out publicly about the management at the organization – as a limited public figure, making the burden of proving that the alleged libelous statement was malicious more difficult.
News of the iBrattleboro lawsuit this week hit the Vermont blogging community like a storm.
One day after the news broke, the liberal blog Green Mountain Daily added a disclaimer to its site stating that "you alone are fully responsible for (and bear full legal liability for) the content" of comments, including "inaccuracies or potentially libelous statements."
That disclaimer is similar to the one on iBrattleboro.com.
"I'm pretty comfortable that the suit is without merit based on the case law out there," said John Odum, the main blogger behind Green Mountain Daily. "I just didn't want there to be any wiggle-room. This is dotting all the i's and crossing all the t's."
Odum, who started the blog two years ago, said he hasn't had any major problems with comments left by readers on his blog or with any of the stories penned by regular contributors to the site, all of whom are hand-picked by Odum to participate.
"It's really hard to see the extent of this suit's impact, especially since it appears likely that it will be thrown out," he said. "But either way, I think we're going to see more and more Web sites and blogs that allow comments to put more precautions in place."
Sentiment was similar on the other end of the political spectrum. Charity Tensel of Burlington, who runs the conservative Vermont blog She's Right, said she also believes the suit against iBrattleboro will be dismissed.
Tensel said she has never had any problems with troubling comments on her blog and has never altered or deleted any. As a conservative blogger in liberal Vermont, this was done mostly at first to show that she was not stifling debate or criticism of her views, she explained.
"I am afraid this could lead to more censorship," Tensel said. "I don't want to remove this format, which allows for discussion and debate."
Blogs have become vital to the democratic process because they often break news before it bubbles up in the mainstream press, said Allen Gilbert, the executive director of the American Civil Liberties Union of Vermont.
This may be because independent bloggers can take risks that traditional print and broadcast journalists can't, Gilbert said. To put it simply, sometimes bloggers have nothing to lose, while a newspaper or television station has assets it needs to protect.
"This is a new democratization of reporting and distributing information that no one thought was possible 15 years ago," he explained. "People have said that if Thomas Paine were alive today, he would be a blogger."
Contact Daniel Barlow at Daniel.Barlow@rutlandherald.com.