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Editorial: The Chilling Effect
June 23, 2002

A couple of months ago I was interviewed by a reporter who wanted to know whether, as owner of AAR, I worry about liability issues because of our message boards. At the time I told her that because our message boards only offer opinions about books and authors, I had no such worries. And, after checking the policies at sites as diverse as The New York Times, MSNBC, and YahooGroups, I continue to believe that AAR could not be successfully sued over third-party postings made on our message boards. However, I have created an official policy regulating our discussion lists and message boards that you can read here. Currently, the widely held belief is that site owners are not responsible for the content of third-party messages (more on that later).

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Here's a silly bit of Gilligan's Island trivia. When the show was originally televised in the mid-1960's, the Coast Guard regularly received letters and telegrams from people asking why they didn't rescue those poor people from the island. I was reminded of that when I read about a libel case involving The Dallas Observer, an alternative weekly paper. The newspaper ran a satirical story entitled "Stop the Madness!" The piece poked fun at a judge and district attorney for jailing a 7th-grader after he wrote a violent Halloween story involving the death of a teacher and two students. The Observer's satire portrayed a fictional 6-year-old girl who was arrested, shackled, and jailed for 10 days by this judge and D.A. for writing a book report on Maurice Sendak's Where the Wild Things Are. Although most reasonable people reading the piece realized it was satire, not everyone did, prompting irate phone calls to the judge, the D.A., and local talk-show hosts over their treatment of the young girl, which prompted the lawsuit. The judge and D.A. stated their reputations had been maliciously compromised by the article because some people actually believed that the satire was factual. Yes, folks, because some people are stupid and don't know when somebody's tongue is in their cheek, this paper was actually sued for libel. Last month the Texas court of appeals held that the lawsuit could move forward so that the jury could decide whether these public officials were defamed.

Besides showing us that people can be incredibly stupid, this event shows that some lawsuits that seem absurd might be won. All of which makes the current discussion on censorship based on our June 15th ATBF quite apropos as this week comes to a close. Here's why:

Given these instances, I started to wonder yet again about the true impact of the Internet and whether the ideal of a global online community is in danger of being quashed.

When we post so-so or negative reviews of books by certain authors, I know there will be a firestorm of activity that doesn't seem totally organic in nature. In other words, some threads will have an orchestrated quality about them, and this extends not only to negative reviews, but any kind of discussion that is perceived by some to be negative. I have always operated under the assumption that opinions are simply that, and unless something factual has been purposely misstated, no person making a post has to worry about being sued.

According to the Libel Defense Resource Center, libel occurs when a false statement about a person is published. The false statement must be defamatory in order for it to be libelous. It cannot simply be insulting or offensive; the false statement must actually harm the reputation of the person. And, the defamatory statement must also have been made with fault, the extent of which depends on the status of the plaintiff. If the plaintiff is a public figure, he/she must prove actual malice, which means the defendant knew his/her statement was false. Even though I'm not a lawyer, I think this definition is pretty clear. Libel of a public figure involves the purposeful publishing of false material that harms the reputation of that public figure.

Let's go back now to those bulleted items above. When RWA's current board of directors decided to close the private discussion lists, the reason given was that there was too much liability associated with keeping them online. And yet, the article written by a Jeffrey S. Tenenbaum, a member of the lawfirm representing RWA, would seem to say that there is no liability to an entity for posts and/or messages made by third parties. He writes, though, that organizations historically had less liability if discussion lists or message boards were simply unmoderated than if they were moderated. That all changed, however, with "a new federal law buried in the Communications Decency Act of 1996" which provides "new legal protections for associations and other Web site, discussion group, and bulletin board sponsors."

Section 230 of the CDA is entitled Protection for 'Good Samaritan' Blocking and Screening of Offensive Material. In part, it states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another...." It also states that "no provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or users considers to be obscene, lewd, lascivious, excessively violent, harassing, or otherwise objectionable."

The article I mentioned states that this section was included in the CDA to overturn a New York court decision that held the Prodigy Internet Service liable for defamatory messages posted on its service by third parties precisely because of "Prodigy's policy of prescreening messages for objectionable content." The article states that the court came to this conclusion because "if an interactive computer service provider had a policy of prescreening on-line messages, then, by definition, it 'knew or had a reason to know' of any defamatory material that traveled over its service," it could "be held responsible for 'negligently distributing' any defamatory material that slipped through the screening process."

As a result of this decision in 1995, those who sponsor message boards, discussion lists, and chat rooms often adopted policies so they could remain "totally ignorant of third party content." Congress recognized the need to address providers of these Internet services who were essentially voluntary "Good Samaritans," and to encourage those who were trying to "detect and eliminate objectionable content." This is the genesis of Section 230. According to the Electronic Frontier Foundation, "in enacting section 230, Congress tried to protect free speech on the Internet from chilling threats of costly litigation. This decision will help achieve that goal and marks a solid victory for free expression. Internet speech would be stifled if individuals could be found liable for the defamatory statements of others."

AAR has always monitored its message boards, partly because we use the interaction between our visitors and our staff to generate original written material. No post ever made at AAR has met the definition of defamation - or even come close - although at times certain posts may have come across as insulting or offensive to some. Even so, when discussions become so heated that moderators believe they should step in, we are acting as that "voluntary Good Samaritan."

Unfortunately, not everyone seems to understand the definition of libel or defamation. Posts at AAR, indeed reviews at AAR, have been accused of defaming authors. Some people seem to pick and choose from the legal definition, when it's the law in its entirety that must be understood. While an author might believe that a negative review harmed her reputation, she would need to show that the reviewer made false statements about the author herself. As we are talking about an opinion, how could it be false? And since authors are arguably public persons, those false statements would have to have been made with the knowledge that they were false. I'm reminded of the author who posted on several discussion lists and message boards that our negative review of her book caused poor sales of her book. She seemed unwilling to even consider that perhaps the book was not appealing to readers, accounting for its poor word of mouth and poor sales.

So what is my concern here? Obviously, reviews are opinions; they are not statements of fact. We do not say in a review: "Author X smokes crack cocaine and is a skanky ho." We say "Here is our interpretation of this book. We liked it because of X, Y, and Z or we didn't like it because of A, B, and C." But that author who doesn't have a full understanding of the laws of libel might decide that because we gave her book a negative review that we have damaged her reputation through the posting of a reviewer's opinion. All we have done is comment on the book - not the personage of the author.

And this leads me to another critical juncture: the importance of AAR in the world in general. While AAR continues to grow enormously, the fact remains that most readers of romance novels do not visit AAR. We may be a source of annoyance to some authors, but when I walk into a bookstore or Target and ask women perusing romance novels whether they visit All About Romance, the vast majority look at me in bewilderment and ask, "What's that?" We may be well-known to the online romance community, but to say that we have the power to destroy a reputation or hurt the sales of a book is simply absurd. Even people who do know who we are - who visit our site and read our reviews - often say that a review does not enter into whether they will buy or not buy a book. If American publishers are depending on the 100,000+ unique visitors who come to AAR every month for all their revenue for romance novels, they'd be out of business in a matter of days.

Now let's talk about that author who is investigating what legal actions may be available to authors dissatisfied by negative coverage at web sites. Her article in RWR (RWA's Romance Writer's Report) talks of her interest in the rights of authors "regarding misrepresentation or even libel and what damage-control measures to attempt once a story spins out of control."

I think this relates to the Robin Lee Hatcher episode that occurred earlier this year. One of the discussion points in the RWR article is whether the same fair trade legal restrictions that prevent companies from damaging a competitor's reputation can also be applied to authors. In her piece, she asks: "Can one author with malicious intent legally pass negative information damaging another on to a reporter or make a potentially career damaging statement against another on a bulletin board or in a newspaper? Even hiding behind the name Anonymous or implied accusations?" She also asks, and I hope I've answered this already, "Does the Web site owner have a liability for the contents of a message board?"

What she seems to be asking is whether or not it is legal to tell a reporter or publicly post something that's true if it's also negative. At the time I passed along the Robin Lee Hatcher link to AAR's readers, many indignant posts were made about the motivations of the anonymous author who sent me the link to the article in the Idaho Statesman. Just as I would never divulge the name of that anonymous source under First Amendment guarantees, the answer to her question is made abundantly clear by the Libel Defense Resource Center: Truth and opinion are complete defenses to a defamation claim. My initial reaction to her question as it relates to the anonymous author was that she had confused "malicious intent" with "actual malice." There's no law against being mean, but it is illegal to make statements verbally or in print that are knowingly false.

So, why the law lesson? My philosophy for All About Romance from day one has been to create a back fence for lovers of romance novels. It's not just our motto - it's our mission. The Internet allows large groups of people to congregate. Until the Internet came along, most people congregated in small groups or neighborhoods; they had coffee klatches, water cooler discussions, and block parties. The relatively small size of these interactions made them unthreatening. But the Internet opened things up in a very large way - instead of small groups talking about how great the last episode of The West Wing was, or how Scooby-Doo jumped the shark after Scrappy Doo joined the cast, now large groups can do the same thing, and that can be very frightening and upsetting to those being criticized (luckily we haven't heard from Scrappy Doo). After all, before the Internet, an author might never know that Reader X in Michigan thought her book sucked. However, now she might come across Reader X's post...and what's worse, Reader Y might agree!

A good discussion must feature a variety of viewpoints, but for that variety to exist, there must be no fear. No fear from the person posting her viewpoint, and no fear from the organization hosting the source that allows her to post her viewpoint. Many online sites are so frightened of possible legal ramifications in having features such as message boards that they simply do not offer them, even though, through the letter and the spirit of the law, they could.

I'm afraid too, particularly when I see authors focusing their concern about the sales (or lack thereof) on sites like AAR. As my husband likes to say, "It only takes $200 to file a lawsuit." Whenever I post a negative review for an author who shares her distaste for AAR with anyone who'll listen, or see a thread on one of our message boards that appears to have been manipulated in order to provoke, I worry about opening my door to a process server asking, "Are you Laurie Gold?"

-- Laurie Likes Books

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