Regulating Unsocial Media

by Jim Longworth

That advice supposedly originated with Mark Twain, but if so, then Twain missed his calling as either a psychic, or a Supreme Court Justice.

In the early 1960’s, the New York Times published a series of articles about civil rights abuses and protests in the deep South. That prompted some segregationist officials in Alabama to try and squash those articles by suing the paper for libel. Fifty years ago last week, the Supreme Court heard New York Times v. Sullivan, and held for the paper. That landmark decision was, no doubt, applauded by anyone who abhorred racism and who supported freedom of the press. Unfortunately, however, Sullivan had an unintended effect on other freedoms. From that point forward, anyone who believed they had been defamed by a newspaper publisher or broadcaster, faced an uphill battle proving it in court.

For one thing, plaintiffs in such cases must prove that the defendant carelessly and knowingly published or spoke lies, and that those lies caused the plaintiff harm. Second, the 1964 Supremes had no way of knowing that within four decades, everybody and his brother could claim to be a publisher or broadcaster. Thanks to the internet and social media, “trolling” and defaming has now become a favorite American past time.’  According to studymode.

com, “trolling” describes a person who posts inflammatory messages in an online community with the primary intent of provoking readers. The problem is that such irresponsible posts and website articles are causing great harm to individuals and corporations. So much so, that an entire industry of image fixers has sprung up who attempt to remove libelous material about their client from the internet.

In the meantime, attorneys for damaged parties have, in recent years, cited various laws and acts that they hope will punish cyber defamers, but the application of those laws and subsequent sentencing have been largely ineffective.

The Communications Decency Act of 1996, for example, was originally written to restrict internet porn, but it added a provision for dealing with online defamation. However, section 230 of that Act essentially lets ISPs off the hook, and forces plaintiffs to seek damages from the individuals who initiated the libel. The problem is that, in addition to the aforementioned burden of proof, plaintiffs can’t be made whole by jerks that post hate speech all day, while sitting on empty wallets.

The Computer Fraud and Abuse Act has also been trotted out before juries to help remedy online defamation, but its most high profile application fell short. An adult named Lori Drew set up a My Space account under a false name, and sent libelous and harassing messages to a 13-year-old neighbor girl who subsequently committed suicide due to the cyber bullying. Drew was initially convicted under CFAA, but later went free on appeal.

In 2010, Sean Duffy, a YouTube defamer, became the first person to be sentenced under the Malicious Communications Act, but there has been no indication that prosecutions under that Act have deterred cyber bullying and general online defamation.

The real problem is that today’s bloggers, tweeters, and web writers don’t operate under the same guidelines as do real journalists and broadcasters, yet the libel and slander they commit can reach more eyes and ears in ten minutes than the New York Times can in ten years. Add to that the protections afforded them under Sullivan, and victims of hate speech and defamation have no guaranteed relief.

That’s why I am in favor of comprehensive federal legislation that would make it easier to convict and sentence online trash talkers.

I know that my proposal may frighten social media hounds. After all, most of them just want to let their friends know what they bought at the store, or what they thought of last night’s game. And yes, most people who tweet and blog have no intent to cause a suicide, bankruptcy, Arab Spring, or flash mob violence. But whether they like it or not, their words can hurt. Their words can do serious harm.

And what message are we sending to our kids if we continue to have no organized strategy for preventing and punishing internet idiots? A 2011 survey by the Pew Research Project found that 88% of teenage social media users have witnessed other people being cruel on social networking sites. Increasingly, our nation’s young people type before they think, while we adults think nothing about their typing.

British public relations legend Alasdair Campbell, speaking about the rise of internet journalism and social media, was reported to say, “The audience have become the authors”. But as more of us become online “authors”, we should accept more responsibility for our words and our actions. Until then, those of us who are potential victims of online libel and slander should take to heart Twain’s paraphrased warning: “Never pick a fight with someone who buys bytes by the barrel”. !

JIM LONGWORTH is the host of “Triad Today,” airing on Saturdays at 7:30 a.m. on ABC45 (cable channel 7) and Sundays at 11am on WMYV (cable channel 15).