Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.

Ebbole also reported that Demented Needle boasted at least two defamatory objects in the parlor: a poster displaying an image of one of Ebbole’s tattoos, meant to discourage customers from visiting Ebbole’s shop, and a body cast decorated in demonic symbols and used to model Demented Needle’s apparel.  Ebbole claimed that Averette told customers the body cast was supposed to be Ebbole.

In his defense, Demented Needle owner Averette claimed that the poster was not defamatory because it was protected commercial speech and the body cast was not recognizable as Ebbole. The court held that Averette did not present adequate evidence to prove that the poster was protected speech. The court also held that, because Averette routinely told customers that the body cast was supposed to represent Ebbole, his speech was defamatory.

Ebbole also claimed that a co-defendant of Ebbole had defamed her through a MySpace posting, which included a video of Ebbole performing a body piercing.

The MySpace post read:

I came across this video during my recent health inspection of all [things]. I was certified to do microdermal anchoring in October of 2008…. [Ebbole's method] is disrespectful to what I do and what I love … allegedly. I ask you, people of the interweb … what should I do about it?

FYI: [Ebbole's method] is NOT the method I use or would suggest to be used for any implant procedure.

The post was followed by comments from third party MySpace users, some of which contained threatening and defamatory language.

In his commentary about the case, Eric Goldman questioned the court’s malice finding: “The court ruled the plaintiff was a public figure, so the plaintiff [would have] had to show defendants’ malice to support the defamation claim.  I am especially interested in its application to [the co-defendant’s] MySpace posting.” Goldman then questioned evidence of malice based on the MySpace posting.

Goldman discusses the specifics of the MySpace posting, wondering who had originally posted the video and noting that the statements that seemed to be most defamatory were made by third party commentators, not any defendant.  And in any event, Goldman thinks defendants’ MySpace comments were clearly opinion, not factual.  “I’m failing to see anything defamatory in this statement at all,” he concludes.

Goldman then discusses the case in light of 47 USC 230, the Communications Decency Act of 1996 (CDA). Section 230 of the CDA states that no user of an interactive web service can be held responsible for the postings or another user.  Goldman argues that this principle should have applied here. “Inferring malice from a site operator’s failure to remove third party comments should be preempted by [CDA Section 230] because it treats the operator as a publisher/speaker of those comments,” he writes.

As I wrote:

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

Several recent stories vividly illustrate the point, including an article in last Thursday’s New York Times about suicide chat rooms and prominent recent lawsuits in New Jersey and Louisiana involving attempts to “out” the names of anonymous online authors.

The Times reported that a Minnesotan named William F. Melchert-Dinkel was charged with aiding the suicide deaths of a British man in 2005 and a Canadian woman in 2008.  Whatever can be said of his actions (and whatever might be deemed “just words”), Melchert-Dinkel’s actions were done solely via the internet and solely in the form of words.

The case is novel for several reasons, including the location of the presumed “conduct” – in Minnesota?  In Canada?  In the UK? – as well as the not-so-novel questions of individuals being held accountable for words alone.

Libel, of course, is all about words – no need to argue the fine points of conduct versus speech – so the Louisiana suit involving Jefferson Parish interim president Steve Theriot raises no real conduct issues.  Lucy Dalgish of the Reporters Committee for Freedom of the Press is quoted in a Times story on Theriot, saying “Cases involving anonymous commenters are now ‘where the action is in libel suit,’” and Dalgish appears right, if only for the fairly predictable result of expanding to the sky both the publishing ranks and a prospective publisher’s audience.

Put another way, we are not in Louisiana anymore.  As Randall Stross wrote last week in “Digital Domain”,

… [T]he online world … is already a very open and connected place, thank you very much.  Densely interlinked Web pages, blogs, news articles and Tweets are all visible to anyone and everyone.

In the Louisiana case, the allegedly libelous statements (including “just another Jefferson Parish politician thug mobster”) were made by registered users of the website of the New Orleans Times-Picayune, known as Nola.com.  That is, the names are known to Nola, and the suit seeks their disclosure but does not claim defamation by the website.

In the New Jersey case, Too Much Media v. Hale, a website operator unsuccessfully sought to protect the identity of third party contributors to her site as “sources” covered under New Jersey’s reporter’s “shield” law.  The New Jersey appellate court ruled that the website operator could not claim the shield law’s protective rights because her publishing activity did not qualify her as a journalist.  Perhaps the most interesting passage by the court was this one, giving the back-of-the-hand to a claim of 1st Amendment privilege by every Tom, Dick and Harry with a webcam and an internet connection:

However, the fact of presenting information on a new, different medium, even if capable of reaching a wider audience more readily, does not make it “news,” for purposes of qualifying for the newsperson’s privilege.  Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.”

The separate subject of what constitutes a “journalist” for shield law and other 1st Amendment press protections is a subject for another day and a different blog.  And one might lament the clearly conservative (some would say “stuck in the mud” crankiness) recalcitrance of the New Jersey court.  But the broader law of these cases is not new or even particularly reactionary: Words have consequences in our society and published words have even greater consequences.  Now take those published words and publish them even wider, and lower the barriers to publish, and the consequences can get quite interesting.

Spend any time on the Internet and – like the naif in the ‘Casablanca’ gambling room dumbfounded when the wheel comes up 22-black twice in a row – one’s bound to ask, ‘Say, are you sure this place is honest?’

This sort of thing seems oddly hilarious and at the same time naïve in the same way as the fool in Casablanca, in whose defense one could at least say it was a different time.  Last I checked, there was no giant sign over the entrance to the internet saying “tread warily here”, although Felten’s point about the sensitivity of individuals to words being written about them is hardly a new concept.  Just one small point of reference: I handle a fair amount of pre-publication review of publications for libel (i.e. in advance of actual publication), and one thing I usually drill into my publishing clients is being somewhat sensitive to the litigatory likelihood of the person about whom words are being published.

I’m not saying shy away from controversial journalism, and it’s advice that probably did not compel the muckracking vision of Woodward and Bernstein or the “American Century” mantra of Henry Luce.  Nonetheless, don’t ask a libel lawyer for advice unless you’re willing at least to consider whom you’re writing about if one of your goals is simply to avoid getting sued.

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

A third and possibly even more “magical” contribution of the internet to the law of libel involves imaginative expansion of the types of publishing that can be libelous.

Example number one is a suit Felten writes about against Yelp by a California veterinarian, claiming that Yelp’s rating system results in fraudulently produced and therefore libelous reviews of services (such as the veterinarian’s) derived from rankings that are at least partially driven by competitor’s purchasing of Yelp local advertising.  Yelp defended its case and its rating system, arguing that its reviews are “completely independent of advertising – or any sort of manipulation.”  With thinly veiled sarcasm, Felten notes that Yelp coupled its vigorous defense with a simultaneously announced discontinuance of the challenged ratings process based on advertising.

Much of libel litigation on the internet – and much of privacy law, and similar torts involving personal reputation and privacy matters generally – focuses first on the “outing” of anonymous bloggers, commenters and other sources of allegedly defamatory commentary, product reviews, critiques and what not.  That anonymity, in turn, owes its robustness to the late-1990s Communications Decency Act (CDA) and Digital Millennial Copyright Act (DMCA) laws protecting internet service providers and website operators from liability for copyright infringement or defamatory conduct of users of the operators’ web forums, chat rooms, product review pages, YouTube and on and on.

So, on the one hand there are the ISPs and websites (AOL in the early years, Craigslist and Roommates.com in more recent years) taking advantage of the largely “see no evil” legal protections accorded by laws like the CDA and the DMCA: That is, with only modest simplification, as long as the copyright infringer or defamer is an unrelated third party user of the website, the website operator is immune from liability.

That is the one hand.  The “other hand” view is not exactly “opposite”, but it may be moving to be different. While the national default position remains quite protective of operators’ right to refuse to disclose users’ names and identities, recent state appeals court cases – including a leading early 2000s New Jersey case, Dendrite, the more recent Brodie case in Maryland, and Solers in the District of Columbia  - have chipped away at the efforts of website operators to extend their CDA and DMCA legal immunities to include non-responsibility for identification of anonymous content posters.

But with the exponential increase in lawsuits filed over libel and other torts for online activity, one might expect a continuing degradation of these protections for website operators under the withering onslaught of contributory and/or vicarious liability arguments.  The YouTube-Viacom lawsuit goes on (and on, and on, and on) seemingly tackling these very arguments, albeit in the copyright infringement arena rather than libel.

As media lawyers never tire of writing, though, the internet did not do away with the First Amendment and the law is still the law.  So, as David Johnson wrote last year in his “Digital Media Lawyer Blog”:

The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker’s identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama ) (1958) [Citation omitted]; Talley v. California (1960) [Citation omitted]. On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire (1942) [Citation omitted].

The reality is that, even without success of plaintiffs’ lawyers in breaching these powerful immunity barricades, website operators and publishers always have the prerogative of becoming more aggressive in re-writing – and then enforcing – website terms of use.

We do see this starting to emerge with the increasing sophistication of content-sharing services owned by larger and more traditional media organizations (Hulu is a decent example).  With increasingly locked-down commercial control over content distribution, the industry’s arguments about the effectiveness and sufficiency of self-policing against personal privacy torts and reputation torts and copyright infringement could become more and more credible.