October 28, 2005 | By Kurt Opsahl

Free Speech vs. Bad Advice - "Attack on the Blogs" and Fighting Back

EFF created the Legal Guide for Bloggers, in order to help bloggers understand their rights and, if necessary, defend their freedom. Forbes' recent cover story, Attack of the Blogs, illustrates the need for bloggers everywhere to be prepared to defend their rights. Attack of the Blogs' fear mongering opener is that blogs "are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective," and it goes on in the same vein.

In a sidebar to the blistering article, entitled Fighting Back, Forbes includes the following dangerous suggestion:

ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also: Subpoena the host company, demanding the blogger's name or Internet address.

If only Forbes had read the Legal Guide for Bloggers, they would have known that following this advice would be a very bad idea for their readers' pocketbooks. We explain:

(Read more after the jump.)

First, Section 512(f) of the DMCA creates liability for making a ?knowingly materially misrepresent[ation] ? that material or activity is infringing.? Yet, copying snippets of a website for purposes of criticism is a clear fair use and a DMCA notice sent to squelch online criticism can lead to the sender paying damages. See Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204 (N.D.Cal. 2004) (finding misuse when DMCA notice sent about clear fair use). In that case, Diebold ultimately had to pay $125,000 for its misuse of the DMCA.

Second, as the article acknowledges, hosts are not liable for even defamatory speech under a federal law called Section 230. Congress has ?made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties? potentially injurious messages.? Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). Filing frivolous lawsuits to squelch speech can also lead to liability, requiring the plaintiff to pay the attorneys fees and costs of the defense under Anti-SLAPP statutes.

Third, a subpoena to the host requires the company file a lawsuit first. If the blogger is engaged in protected speech, the anti-SLAPP law could lead to liability, and the blogger is entitled to move to quash the subpoena. As the Supreme Court acknowledged, an ?author?s decision to remain anonymous ? is an aspect of the freedom of speech protected by the First Amendment.? McIntyre v. Ohio Elections Comm?n, 514 U.S. 334, 357 (1995).

We've written a letter to the editor detailing these problems to Forbes. But while it's sad that Forbes has such a negative and one-sided view of blogs, it's their right to hold that opinion. Bloggers themselves should remember that they too have rights, and should learn and understand them to protect themselves and their freedom of speech.


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