When does posting become publishing?

A news story made it onto the news wires yesterday, that illustrates one of the coming tensions in online communication — a real estate company is suing one of their tenants, who complained about the company on Twitter.

The case illustrates a tension that I expect to become ever-sharper in the next few years, between “conversation” and “publishing”.  Defamation suits are probably where the problem becomes most stark.

Say that I post something defamatory to my blog, which in this happy hypothetical universe has a hundred thousand readers.  As I understand it, it’s becoming fairly clear that the law thinks of that as “publishing”, and I’m just as legally liable as I would be if I published in a local newspaper.

Say that I say the same thing in a locked post on my LJ, visible only to my friends.  This is clearly a private conversation, not “published”.  It’s hard to predict the courts, but I find it unlikely that one would find this a matter worthy of a lawsuit, and I’d argue strongly that it shouldn’t.

Now, take the case at hand.  The post in question was to Twitter.  The woman reportedly only had 20 followers, and probably thought of this as a private conversation.  Indeed, a lot of people are laughing at the realty company, for turning a mountain into a molehill.  But their contention is that this was published to the public, and that’s kind of true: Twitter is a global feed, and lots of people mine it quite randomly.  So at least technically, it kind of was “publishing”.

So how do we draw the lines?  In an age where “conversations” can be visible to the whole web, and posts are just part of the larger conversation, what is publishing?  How can the courts distinguish between libel and simply someone spouting off to their friends?  It’s not a trivial matter — while the difference might be obvious at the gut level to you and me, the law likes clear lines, and I’m not seeing many of them.

I don’t have answers here, but I welcome thoughts on the matter.  It’s a problem that is likely to feed back into the technology and social conventions of online conversation — potential lawsuits are good for chilling free expression, so these lines really matter in practice…

4 Responses to “When does posting become publishing?”

  1. metahacker Says:

    Some time ago, my stories were on a website. In a directory with no links to it, and with a robots.txt file saying “don’t crawl here”. Nevertheless, one of the stories was rejected by a commercial venue has having been ‘previously published’.

    The line’s been fuzzy for quite some time.

    • Chad Says:

      If only everyone respected robots.txt. I suspect that without some explicit technological locks on things, pretty soon everything will be considered ‘published’ to the public. Even in places like facebook where things occasionally slip by filters, or where people find ways to get around some of the restrictions, suddenly what you put up is more open than you expected.

      For a generation growing up with this, it is second nature. For the businesses, individuals, and laws of an earlier time, they have a lot of catching up on how to deal with these things.

  2. Lowell Gilbert Says:

    And a good thing it is that the law wants clear lines. Compared to litigators, gamers are pikers at rules lawyering.

    That said, even before online communication, the range from freedom of the press to freedom of speech (or from libel to slander, if you prefer) was already understood to be more of a continuum than a binary choice. Actual trained lawyers might know of a decades-old precedent that provides a well-defined test from a case involving, say, a family newsletter. Or something else related…

    [Actually, I have a couple of geeky cousins who are lawyers. Maybe I should ask them…]

  3. -dsr- Says:

    @metahacker — that’s the same approach taken by many authors, and this is the first I’ve heard of that problem. How did the commercial venue find it?

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