Sunday, November 19, 2006

HB-129 seeks to end blogging as we know it

I'm going to sample a good bit of Vince Leibowitz' research and re-print his Q&A regarding one of the bills pre-filed for the Texas legislative session opening in January:

House Bill 129, filed by State Rep. Vicki Truitt (R-Westlake) for consideration by the 80th session of the Texas Legislature is legislation that will drastically impact writers for whom the World Wide Web is their primary medium of distribution.

House Bill 129 is legislation that would amend Texas' Civil Practices & Remedies Code by adding Section 73.0045. This section would provide statutory provisions in Texas law under which the authors of websites (including blogs) can be sued for libel, slander and defamation in the same manner as print or broadcast media. It also provides mechanisms that allow courts to order website authors to remove the offending content.

But aren’t websites and blogs already subject to libel and slander law?

Yes. Since the popularity of the Internet began to rise in the mid-1990s, courts across the country have held that website authors can be held to the same or similar standards as newspapers, radio and television stations when it comes to libelous, defamatory or slanderous statements. In Texas, web writers and websites (including blogs) have been sued successfully on a number of occasions.

If the Web is already subject to libel law, then what's the big deal?

Good question! There is a very big difference to the manner in which websites and their authors can be held accountable currently and what would happen if HB 129 became law.

Presently, websites and blogs are subject to the libel and slander provisions of the Civil Practices & Remedies Code because federal and state courts have consistently held that web-based content is similar to other media and must be held to the same standards. And, web writers have no problem with that. Courts have been the ones to make these decisions and determinations because, when the Civil Practices & Remedies Code was originally written, the Internet was not the major force in society that it is now. As is the case with patent law, copyright law, election law and numerous other areas of state and federal law, when the law does not specifically cover a new medium or area that develops as a result of emerging technology courts make determinations about the applicability of that law to new mediums.

The 'big deal' is that, although House Bill 129 codifies the already established fact that websites in Texas can be sued for libel and defamation, it fails to provide web-based writers with the same protections as other mediums are afforded under Chapter 23 of the Civil Practices and Remedies Code.

What are these protections?

Print media is specifically protected by Section 73.002 of the Civil Practices & Remedies Code when it comes to a concept called "privileged matters." House Bill 129, though it codifies that websites may be sued for libel, does not further revise the CP&R to indicate that websites are subject to these protections.

Specifically, the privileged matters clause protects print writers from lawsuits for defamation in certain instances relating to coverage of public events. This is especially important for bloggers, who often function as citizen journalists.

In short, fair, true and impartial accounts of judicial proceedings, legislative or executive proceedings, and other official proceedings and public meetings (like city council meetings and county commissioners court meetings) is protected from libel action. The coverage is considered "privileged" so long is it is fair, true and impartial.

The privileged matters clause also protects commentary (opinion and satire) related to public officials and other matters of public concern so long it is "reasonable and fair."

House Bill 129 fails to amend the CP&R Code to provide the necessary and appropriate protections to bloggers and citizen journalists.

I'm not a blogger, I just have a MySpace page. How does this apply to me?

Whether or you are a blogger, have a MySpace, Xanga, or Facebook site, or a regular website, House Bill 129 poses a significant danger to you.

Because the term "website" is not defined by House Bill 129 and is overly broad, social networking sites are covered. Almost everything on the web could be included in the term "website." Technically, under the changes House Bill 129 would cause, email messages in an archive on sites like Google Groups, Yahoo Groups could result in actionable libel claims.

A comment you leave on a MySpace page, something you write on a friend’s "wall" on Facebook, or a message you send to Google Groups will be wide open to frivolous lawsuits from anyone you happen to offend, and you could find yourself paying thousands of dollars in legal fees just to have a frivolous lawsuit thrown out of court.

I am a blogger, but I'm very careful about what I write. Why should I care?

Whether you blog about your Labrador retriever or Texas politics, House Bill 129 should scare you into action.

As noted previously, those of us writing on web-based mediums have been subject to libel and defamation suits for years. However, once it is codified in Texas law that writers and owners of such sites can be sued, you could find yourself answering for even the most nonchalant blog post in court.

Consider this: A blogger or MySpace goes to a national chain retailer like Wal-Mart and has a bad experience with a rude cashier; the blogger blogs that Wal-Mart has horrible customer service on their blog. Wal-Mart can now sue you for libel. Will they win? It’s doubtful, but under House Bill 129, a major retailer could use your offhand comment about their store as a test case to scare off other web-based writers from making similar statements.

For political bloggers on the "left" and "right", the danger is far worse. Because we don't get the protection of the "privileged matters" clause, we could find ourselves sued every time we write about a politician or political candidate no matter how careful we are. A simple post about staff being fired from a congressional office or a state representative accused of ethical violations or sexual harassment could result in a multi-million dollar lawsuit being served upon you because you have no protection when writing on matters of public concern no matter how unbiased and accurately you report. While your unbiased manner and accuracy may mean a jury might not find you actually libeled someone, it will cost you thousands of dollars in legal fees and you may be bankrupt by the time a verdict is returned in your favor.

You should also care because you could be held accountable for things you didn't even write.

If you are the owner of a blog of website with comment capabilities, you could be held responsible for what others say in the comments section or on the bulletin board section of your website. Because you own the website, and HB 129 codifies the ability of websites to be sued for libel, you bear the ultimate responsibility for every word that goes on your site. You can be sued for comments.

So what do we want?

Since bloggers and web writers have already been successfully sued in Texas, the addition of websites to the Civil Practices & Remedies Code is somewhat moot. Our complaint isn't that reality has been codified. It is that reality has been codified without citizen journalists being given the protections they rightfully deserve.

What we want is either a defeat of HB129 or to see it amended such that web writers, bloggers and citizen journalists are offered the same protections under the "privileged matters" section of Chapter 73 of the Texas Civil Practices & Remedies Code.

What should we do?

Contact your state legislator -- Senator and Representative. Ask them to oppose HB-129.

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