Paul Watler’s Podcast: “On-Line Campus Gossip”

April 23, 2008 | Insights

A university campus has always been the place for a free exchange of ideas. Students find their voice and share their theory of how the world should be. A darker side of campus free speech has now emerged on the Internet.

Some say it is an alarming mix. Websites devoted to campus gossip that promise anonymity to student posters. You can just imagine what anonymous college students are writing about on the Websites. No, it is not Shakespeare or quantum mechanics. It is sex—the raunchier, the better. And very often, the postings are degrading and just plain mean.

“Who’s the biggest slut on campus” is a common question that starts a discussion thread. Dozens of replies are posted. Many name names and offer titillating details that sound like dialogue from a porn film.

Not surprisingly, some of the students who have been named in the posts are shocked and offended. Their good reputations have been smeared and they feel real pain over details from their private lives – often patently false – being spread over the Internet.

Does the law offer a remedy? Can a student or any other person whose reputation has been damaged by anonymous Internet speech sue? Does the First Amendment impose limits on such a legal action?

Texas law has long protected personal reputation through actions for slander and libel. Suit was not restricted to just the original speaker or writer but could be joined against others who spread or republished the defamation. For example, if a newspaper published a letter to the editor that falsely accused a person of illegal or immoral conduct, the law permitted the victim to sue the author of the letter as well as the newspaper.

When a college student is victimized on-line by a false message from an anonymous poster, she may naturally consider suing the Internet service provider that hosts the gossip site. The author of the message may be unknown, but the service provider will be readily identifiable and likely will have far deeper pockets. So why not sue the gossip site service provider? After all, isn’t the service provider’s role much the same as the newspaper that publishes a defamatory letter to the editor?

But it’s different in the world of cyber space. In the early days of the Internet–way back in the mid-1990s–Congress saw the threat of substantial liability for service providers as a deterrent to the blossoming of the Internet. It stepped in in 1996 to give service providers special immunity for material posted by third parties. The law, part of the Communications Decency Act, is found at as 47 U.S.C. § 230. It was intended to also provide a safe harbor to internet service providers who remove defamatory or offensive postings after a complaint. However, section 230 immunity also extends to service providers who take no action at all.

So the deep-pocket approach to legal action arising from an anonymous campus gossip posting would appear to be a non-starter. Is there still a viable legal action against the anonymous poster?

So far, there have been no reported cases arising from the new campus gossip sites. But one recent Texas libel case dealing with anonymous Internet speech illustrates that First Amendment considerations will come into play. The case was In re Does 1 – 10, decided by the Texarkana Court of Appeals last December.

In that case, the Paris Regional Medical Center filed a libel case against John Doe I, an unknown defendant. The hospital claimed Doe I made anonymous blog postings that unfairly disparaged and criticized the hospital and its doctors. The hospital also sued John Does two through 10, contending they had responded to the original postings and that some had disclosed confidential patient information.

After filing suit, the hospital sought a court order requiring the Internet service provider who hosted the website to reveal the identity of John Doe I. An attorney appeared on behalf of the anonymous blogger to object to the request, but the trial court ordered the service provider to disclose the identity of John Doe I to the plaintiff.

John Doe I then sought mandamus in the court of appeals to protect his anonymity. The Texarkana court of appeals found that anonymous speech on the Internet was a right protected by the First Amendment. In order for the libel plaintiff to overcome the right of John Doe I to maintain anonymity, the plaintiff must meet a summary judgment standard.

The plaintiff must show enough evidence to create a genuine issue of material fact as to all elements of the defamation claim within the plaintiff’s control. The court stated that the standard did not require a public figure plaintiff to offer any proof of actual malice in order to overcome the First Amendment right to anonymity. It noted the actual malice standard was a rule for liability not discovery and that actual malice would be an issue for later determination. The appeals court found that the hospital had not met the summary judgment standard and granted mandamus relief to John Doe I.

So, what does this mean for the co-ed who has been falsely branded promiscuous by an anonymous poster on a campus gossip site? The co-ed may have legal recourse, but federal statutory and constitutional considerations may make her road to recovery a difficult one.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer.