David Ardia, writing for the Citizen Media Law Project, has posted a PDF of the actual lawsuit brought against Cape Cod Today blogger Peter Robbins (photo at left), which I described this past weekend.
According to Ardia, Robbins and a pseudonymous commenter — in the original, unedited blog post — made several statements that could prove to be troublesome concerning plaintiff Joe Dugas and others involved in trying to stop the dredging of Barnstable Harbor.
As Ardia notes, the standard in libel law is that a factual assertion, even if it is couched in the form of an opinion, could be libelous if it is judged as false and defamatory. That’s what Dugas and his lawyer, Paul Revere III, claim in their suit against Robbins and “noggin,” the pseudonymous commenter.
On the other hand, Ardia writes, the decision by Cape Cod Today publisher Walter Brooks to remove the material Dugas found objectionable could substantially limit the amount of damages the plaintiffs might collect.
One other thing: In an e-mail to Media Nation, Ardia says I was wrong to assert that federal law protects Internet service providers such as Cape Cod Today as long as they promptly remove potentially libelous content. According to Ardia, an ISP retains its immunity even if it does not remove the material.
“No court has found that a website operator must respond or remove allegedly libelous content to retain immunity under Section 230 of the Communications Decency Act,” Ardia writes. And he guesses, correctly, that I was getting confused with copyright law, which does indeed hold an ISP harmless as long as it promptly responds to complaints of copyright infringement.
Media lawyer Robert Ambrogi also weighs in on the Robbins case, as well as another libel suit brought against a blogger, asking, “Has someone installed a hair trigger on libel lawsuits against bloggers? If you don’t like what a blogger writes, just take a litigation potshot.”
A Cape Cod blogger who criticized a group of Barnstable residents for filing a lawsuit aimed at stopping a dredging project in Barnstable Harbor has himself been sued — for libel.
Peter Robbins, who describes himself on his blog as a retired homicide investigator, wrote a post this past March 11 in which he referred to the anti-dredging suit as “this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money.” (“NIMBY” stands for “not in my backyard.”) And he identified by name the people who brought the suit, saying that “these are the people who are costing you.”
I’m not going to wade in too deeply until more information becomes available. So far, the only account of the suit is this one, on the Web site Cape Cod Today, which hosts Robbins’ blog. It’s impossible to know precisely what constitutes the alleged libel, because Cape Cod Today publisher Walter Brooks reportedly removed “certain phrases and sentences” at the request of Paul Revere III, the lawyer for plaintiff Joseph Dugas, one of the people identified by Robbins as suing to stop the dredging project.
Presumably all parties agree that what’s there now is not libelous, so there’s no sense in analyzing it. What would be telling is to see what got deleted.
There are several interesting aspects to this suit, and they will be worth following as we learn more:
1. The legal liability of the lone blogger. Under federal law, a Web site such as Cape Cod Today can be considered an Internet service provider exempt from liability if it merely acts as a host for bloggers such as Robbins, and is not involved in actively soliciting, editing and publishing their work. As long as a publisher such as Brooks responds to a request to remove allegedly libelous material, he is free and clear.* That leaves the blogger in an incredibly vulnerable position.
That doesn’t mean Cape Cod Today has thrown Robbins over the side of the boat. The site continues to host Robbins’ blog, and Brooks himself has been calling people’s attention to the suit. But the situation is very different from a reporter for a news organization getting sued, a situation that invariably leads to the organization’s being named as a defendant as well.
2. The privacy of anonymous commenters. According to the Cape Cod Today report, Dugas is suing not just Robbins but also an anonymous commenter who posted under the name “noggin.” The comment has been removed. Cape Cod Today requires registration before anyone can comment, which means that Brooks and company may know who “noggin” is. That, in turn, could lead to a legal battle over whether to reveal his or her identity. (Presumably “noggin” could have registered under a phony name, too, which would make tracking him or her down much more difficult, but not necessarily impossible.)
3. The role of the anti-SLAPP statute. Robbins’ lawyer, Peter Morin, is quoted as saying, “This matter is a textbook example of the justification for an anti-SLAPP statute that protects the right of individuals to comment on matters of significant public concern.” The term “SLAPP” stands for “strategic lawsuit against public participation.” Morin is claiming that the intent of Dugas’ suit is to silence Robbins and prevent him from participating in a matter of public interest. (Judith Miller — yes, that Judith Miller — has written a good piece on anti-SLAPP laws.)
This is of particularly interest to me, as I recently wrote an affidavit on behalf of a defendant in a libel case who was claiming protection under the Massachusetts anti-SLAPP law. In Massachusetts, unlike, say, California, it is not firmly established that anti-SLAPP protection extends to the media — it’s aimed more at community activists.
But with small, independently owned newspapers (yes, there are some) and bloggers, the dividing line between community activism and journalism doesn’t always exist. Advocacy journalism, after all, is both advocacy and journalism.
To be continued — I’m sure.
*Correction: Not exactly. See the comments of David Ardia in this update.