TechLaw

A federal district court in Maine held last week that Amazon.com's print-on-demand subsidiary, Booksurge LLC, was not liable for defamatory material contained in a book it printed for a customer. In essence, the court decided that BookSurge is similar to contract printer which, according to several courts, has no duty to inspect the materials it prints for defamatory content.

One of the defendants, BookSurge, is an online self-publishing service provider. Authors upload a PDF-formatted copy of their work to the BookSurge Web site. For a fee, BookSurge then publishes the work in ink-on-paper and delivers the printed materials back to the author. The plaintiff is a high school girl who alleged she was defamed in a BookSurge-printed title written by the family of another high school girl. The details of the book aren't important, though it appears from the court's opinion to involve a setting-the-record-straight effort about high school cheerleaders, boys, and ethnic slurs.

The key passage in the opinion: "BookSurge, as an independent company that transforms PDF documents into books with no editorial control and no communal process with the author, can only be found liable if it knew or had reason to know of the alleged defamation."

The court rejected the plaintiff's argument that printing-plus-marketing the author's work is sufficient to treat BookSurge as the "publisher" of the disputed work.

BookSurge contended that the First Amendment bars holding BookSurge liable for defamatory material in the books it prints on any standard more demanding than a "knew or should have known" basis. This argument relied in part on Cubby v. Compuserve Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), in which the court held that holding electronic news vendor CompuServe to a duty more rigorous than the one imposed on traditional news distributors would "impose an undue burden on the free flow of information." BookSurge's riff on Compuserve went like this:

Adopting Ms. Sandler's theory that BookSurge has a duty to read and fact-check the hundreds of thousands of books that it prints each year would restrict severely the dissemination of constitutionally protected books printed by BookSurge and other P.O.D. companies. At a minimum, BookSurge and other P.O.D. companies would be required to increase substantially their rates in order to provide the review and fact checking proposed by Ms. Sandler. Far more likely, companies like BookSurge would cease to exist, because self-publishing authors would be unable to afford the cost entailed in the review and fact checking necessary to protect P.O.D. companies from Ms. Sandler's newfound theory of liability.

The court's opinion, however, didn't pick up this argument. No First Amendment discussion, no mention of Compuserve, and no mention of the Communications Decency Act's Section 230 (which, I guess, is not applicable to this dispute because the alleged defamation was ink-on-paper). Nevertheless, the court reached the same destination via the non-constitutional, non-CDA route. BookSurge, a mere printer with no other involvement in the creation of the book, is not liable unless it knew or should have known of the defamatory character of the work, the court concluded.

Web 2.0 Tidbit. The court, in tossing out the plaintiff's tort claim for publication of private facts, observed that the publication of the fact that the plaintiff had decided to seek psychological counseling did not involve a private fact, because the plaintiff had already disclosed this information on her MySpace.com page. Publication of this information on MySpace also undermined another aspect of the publication of private facts tort, which is that the private fact published must be highly offensive to a reasonable person. "The Plaintiff's choice to reveal to the public that she sought psychological help shows that she did not believe the disclosure of this fact to be highly offensive," the court wrote.

The case is Sandler v. Calcagni, No. 07-cv-29 (D. Maine July 16, 2008).

Earlier this year I blogged about a Vermont divorce court's recognition of the fact that the First Amendment places limits on a court's ability to enjoin divorcing couples' ability to write nasty things about each other on the Internet. The court recognized the issue, but did not decide it, given the court's limited subject-matter jurisdiction.

Yesterday a California appellate court weighed in with a fuller analysis in another case involving a trial court's decision to enjoin a spouse from posting on the Internet allegedly defamatory remarks about her husband.

A couple lessons can be drawn from the California court's opinion. The First Amendment does not allow for injunctions against future, unspecified defamatory statements. However, a narrowly tailored injunction to protect privacy interests -- such as a real threat of personal harm -- is possible if the interest is sufficiently compelling.

Alleged Defamatory Remarks: Injunction Was Prior Restraint

Following a hearing, the trial court issued an order enjoining the wife (and her mother) "from publishing false and defamatory statements and/or confidential personal information about [the husband] on the internet. ..."

Two distinct types of information are implicated here: allegedly defamatory statements about the husband, and statements that allegedly violated the husband's privacy rights. The court's analysis was different for each type.

The appellate court concluded that the decision to enjoin the wife's allegedly defamatory Internet speech was an unconstitutional prior restraint. California courts applying the First Amendment to defamation claims have concluded that an injunction is constitutional only to the extent it prohibits a person from repeating statements that have been determined during a trial to be defamatory. Here, whether or not the wife's prior online publications were defamatory had yet to be determined, and the injunction was broader than a mere ban on repeating what the husband alleged the wife to have previously posted online. This aspect of the trial court's order also suffered from constitutional vagueness and overbreadth flaws, the court said, because it "fails to adequately delineate which of [the wife's] future comments might violate the injunction and lead to contempt of court."

Alleged Invasion of Privacy: Balancing Test Required

Taking up the portion of the trial court's injunction forbidding the wife from posting online "confidential personal information," the court ruled that a balancing test was required, an inquiry that weighed the husband's privacy interests against the wife's free speech constitutional rights. Relevant factors here included whether the husband is a public figure, the nature of the information involved, whether the information is of legitimate public concern, the extent of harm caused by online publication of the information, and the strength of the private and governmental interest in preventing its publication.

The first problem with the trial court's order was that it failed to define "confidential personal information." Without a clear definition, it is impossible to assess the extent of the husband's privacy interests and difficult for the wife to determine what information she was prohibited from placing on the Internet, the court said.

The husband claimed that the wife would, if permitted, post his telephone number, address, and social security number on the Internet. The husband argued that, because he is a deputy sheriff, posting this information would jeopardize his safety. And the court agreed, ruling that a court would be "fully justified" in enjoining the publication of this kind of information on the Internet:

We agree that a court would be fully justified in issuing an order preventing a party from putting this type of identifying information about another person on the Internet, particularly where, as here, that person is a law enforcement officer. To the extent that [the husband] seeks such an order and supports this request for evidence, the court would be justified in immediately ordering that this type of information be kept private. Such a restriction does not involve information that has any public value and would serve the significant public interest of protecting the safety of a law enforcement officer.

However, the court noted, the trial court's injunction was not limited to this kind of information. Any injunction prohibiting the online publication of any "confidential personal information" is vague, overbroad, and not narrowly tailored, the court said. On remand, the trial court should determine exactly which information the husband wants to keep private, and then engage in a balancing test to determine whether there is a compelling reason that the information be kept private. Information contained in court files is not necessarily exempt from disclosure, the court cautioned; in fact, it said, there is a presumption that this information is a matter of public record. Personal safety could be a compelling reason, the court suggested, but any order protecting this interest must be narrowly tailored so it does not interfere with the wife's First Amendment rights.

Update: The Citizens Media Law Blog also has a comment and more background information about the case.

The case is Evans v. Evans, No. D051144 (Calif. Ct.App., May 12, 2008).

A Vermont divorce court judge made a big splash in the New York Times last week when he ordered the husband to "remove any and all internet postings" about his wife and their marriage. Two days ago, the judge vacated that order, recognizing that the husband had a First Amendment right to publish his views online.

However, Judge Thomas J. Devine wrote, the husband did not have the right to post digitally scanned portions of his wife's personal journal, which she left behind when she departed the family home. The court decided that the wife had a property interest in her personal journal. The court didn't linger long on the nature of the wife's property interest (common law copyright was mentioned) in her journal, noting that intellectual property issues were outside its limited subject-matter jurisdiction. Regardless, the judge wrote:

Wife has a proprietary and possessory interest interest in her books and papers as both tangible property and intellectual property. She also has a First Amendment right to express herself, or not if she should choose. In seizing her writings and placing them on the blog, husband has crossed the line from speech into conduct. In doing so, he becomes subject to the family court's jurisdiction.

The court held that a state court rule authorizing it to take action to preserve marital property during the course of a divorce action provided sufficient legal authority for an order directing the husband to remove  from his blog excerpts from the wife's journal.

With this view of the law in mind, the court vacated its prior, sweeping order to take down "any and all" blog postings by the husband, ruling that the prior order was overbroad and in violation of the husband's First Amendment rights. The court also held that it did not have jurisdiction to decide whether any of the blog postings were defamatory. Finally, it set the case for a hearing at a future date, apparently for the purpose of taking evidence and entering a final order protecting the wife's property interest in her personal journal.

The case is Garrido v. Krasnansky, No. F 466-12-06 (Vt. Fam.Ct, Washington, Cty., Jan. 14, 2008).