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A warning to all bloggers and commenters

Joe Karam, a former New Zealand All Black, has just been awarded over half a million New Zealand dollars in a defamation case. The defendants were two individuals who posted defamatory comments about Mr Karam on Facebook and another website.

A bit of background: Joe Karam is a long-time supporter of David Bain, who was wrongly convicted of murdering his family in 1995 but after an appeal through the Privy Council in 2007, was retried and acquitted of all charges. Joe Karam played a pivotal role in Bain’s campaign to prove his innocence.

The whole David Bain saga really polarised New Zealand. Everyone here seemed to have very strong views about whether he was innocent or not. It reminded me a bit of Lindy Chamberlain in Australia, who in 1980 was accused of murdering her baby. It turned out a dingo took it.

Some people in New Zealand became quite angry about David Bain’s retrial as they felt certain of his guilt (note that I was not one of them!). This prompted heated online discussions and some websites and Facebook groups were created in response. Because of Joe Karam’s role in David Bain’s acquittal, much of this anger was directed at him; defamatory statements were made; and Joe Karam sued two individuals and an online trading site for defamation.

Fast forward to now and the judge has just ruled in favour of Joe Karam and identified 50 defamatory statements. One of them was a play on Karam’s name – “Karamalisation” – and was used to accuse of him of fabricating facts: “Karamalisation equals to ‘fudge the facts”‘. Another post compared Karam’s defence of David Bain to Nazi propaganda. Most of the statements accused Joe Karam of dishonesty, fraud and lack of integrity. This reminds me so much of climate science and the defamatory statements I read almost daily about climate scientists.

Good for Joe Karam, I say. But what does this mean for bloggers and online commenters? It’s really very simple. Don’t make defamatory statements, especially when they’re false or if you can’t prove them. One mistake made by the defendants in this case was to use the defence of truth, which they could not prove, and which increased the damages against them. I think this is what is known as punitive damages.

People should not think they’re safe just because they run small and/or unknown blogs. It’s true that exposure is taken into account in these cases – I believe the legal term is “extent of publication”. But all that is required is for mainstream media to pick up your comment and publish it which is exactly what happened in this case. It doesn’t take long for things to spread online.

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43 responses to “A warning to all bloggers and commenters”

  1. Florian Avatar
    Florian

    Thanks for reminding us that the online space is not as lawless as we might think..! It’s always good to think before you speak (or type). Don’t post things you wouldn’t feel comfortable telling people you’re passing downtown.

    Reply
    1. Rachel Avatar
      Rachel

      Hi Florian,
      There is something about online communication that is more volatile. People seem more ready to become abusive than if they were face to face. So perhaps we do need reminders like this every once in a while and hopefully this will get a fair bit of media attention. It’s possible to disagree with someone respectfully.

      Reply
  2. Denise Avatar
    Denise

    I hope I never write anything on a blog that would cause anyone to feel libelled.  These polarising cases are interesting as lots of people feel they can have an opinion without actually being involved or there.

    ________________________________

    Reply
    1. Rachel Avatar
      Rachel

      I can’t imagine you would ever write anything defamatory, Denise. And yes, why do people feel like they know the particulars of a case when they were not there?

      Reply
  3. Bronwyn Meredith Avatar
    Bronwyn Meredith

    Interesting article. Thank you. I try to ensure that anything I say in public won’t come back to bite me. Why do people think they can get away with saying such damaging things about other people without there being consequences? A bit stupid really.

    Reply
    1. Rachel Avatar
      Rachel

      Bronwyn,

      Why do people think they can get away with saying such damaging things about other people without there being consequences?

      My theory is that there’s so much abusive commentary online that people have become desensitised to it and unless others point out that it’s not acceptable then it just gets worse.

      Reply
  4. Victor Venema Avatar
    Victor Venema

    I wonder, which law is applicable, as a Dutch person living in Germany blogging on an American server (I guess, Blogger). Could I be sued in NZ?

    Reply
    1. Rachel Avatar
      Rachel

      Victor,

      There’s actually something called libel tourism which is where people pursue their case in jurisdictions that are easier to win in like, for instance, England and Australia. The US is seen as quite a tough place to win an actionable defamation because there are more defences available to defendants.

      I think you can probably be sued anywhere, but I imagine it would most likely be in the place the plaintiff resides.

      Reply
  5. grahamatlinc Avatar
    grahamatlinc

    Since the publisher (blogger) can be held responsible, we all need a degree of caution. Especially if comments are not moderated. I think a lot is without legal response simply because many cannot be bothered, do not want the expense or are abusers themselves. That does not mean that it cannot happen.

    One might consider changing “Comments Welcome” to an advisory. Perhaps something like “This should be treated as a public bulletin board and the commentator is solely responsible for defamatory remarks”.

    On the other hand, it is quite possibe that using the moderation barrier increases the moderator’s responsibility/liablity as well as, or instead of, the publishers. It is a bit of a minefield. Just because one has not stepped on a mine, it does not mean they are not there.

    I have avoided most trouble by sticking to fact with any conjecture being reasonable or posed as questions. Intelligent journalists generally know how to deal with such and are usually a safe example. Nevertheless I have come under attack for “bringing a groups decision making process into disrepute” (i.e. I opposed them). It was ridiculous and without outcome, but they did try.

    A useful post Rachel. We all need our awareness heightened, particularly when lulled in into a false sense of security. 🙂

    Reply
    1. Rachel Avatar
      Rachel

      Graham,

      Interesting idea about the comment advisory but it would probably put people off commenting and I don’t want to do that. I think your strategy is a good one: stick to the facts and pose conjecture as questions or opinion.

      I’m sorry to hear you’ve had problems because you disagreed with someone. Did they try to take legal action against you? I imagine that would have been very stressful.

      Reply
      1. grahamatlinc Avatar
        grahamatlinc

        Thanks for the concern. It was just bluff and bluster, although it did lose me a place on a local panel. Local politics can be a dirty business. It goes with the territory. But, thanks for asking. 😀

  6. Kit Carruthers Avatar
    Kit Carruthers

    Have you offered this to Anthony Watts as a guest post? He and his tribe need a little educating…allegedly 😉

    Reply
    1. Rachel Avatar
      Rachel

      Great idea! I’ll send it to him right now….or maybe not. 🙂

      Reply
  7. JC Moore Avatar
    JC Moore

    Thank you for a good article. I appreciate Joe Karam for having the courage to pursue the lawsuit. Michael Mann now has a lawsuit against The National Review for likening his climate research to child molestation. For the first time in history, scientists have had to set up a legal defense fund to keep scientist from being charged with fraud and being attacked by the media.

    It is a principle of professional ethics that anyone who holds themselves out to practice a profession is required to follow the ethical code of the profession. The Journalist’s Code of Ethics (http://www.spj.org/ethicscode.asp ) forbids bias, lies, and libel – and applies to bloggers who claim to be reporting the news (or facts?). Those following the code of ethics cannot be held liable for what they write, but those who violate the code of ethics can be fair game for lawsuits – and I hope that happens more.

    The US Supreme Court is now considering a case where a politician won a case against his political opponent who lied in his political ads. I certainly hope he wins, but considering our Supreme Court’s recent “conservative” rulings, they will likely claim that lying is free speech. The court has already ruled that giving unlimited amounts of money is free speech, so if they overturn the ruling it means that in the United States, it is okay to pay politicians, and others such as Watts, to lie.

    Reply
    1. Barry Woods Avatar
      Barry Woods

      Well that is not correct

      the same people ( and are in jail) that exonerated the children abusers at Penn state. Exonerated Mann’s research conduct. They did not question any of Mann’s critics for example

      thus the actual observation made translates into what confidence the investigations into Mann’s research, etc. When the same investigative body would exonerate child abusers.. what chance of a decent investigation to investigate much lesser accusations of merely torturing the data.

      nobody likened Mann’s research to child abuse. It was an analogy (distasteful as it was) about quality of the investigation of Mann

      Reply
      1. JC Moore Avatar
        JC Moore

        Au contraire! A report on the suit says “In 2012—after writers for National Review and a prominent conservative think tank accused him of fraud and compared him to serial child molester Jerry Sandusky—climate scientist Michael Mann took the bold step of filing a defamation suit.”

      2. Rachel Avatar
        Rachel

        Barry,
        These are two separate stories altogether. If Penn State University knew of the sexual abuse of children and did nothing well then that is terrible but it really has nothing to do with Mann’s defamation suit.

    2. Rachel Avatar
      Rachel

      JC Moore,

      It does take courage – and I imagine a lot of patience and money – to pursue a defamation suit. Most people probably just don’t bother and so people get away with saying dreadful things. This comes at the end of a week for me in which I’ve read someone repeatedly say that “NASA is fraudulent” and statements like this are very common in the Skeptical blogosphere.

      The code of ethics for journalists is very good but I can’t help feeling a bit cynical about what passes as journalism these days. The very first principal on that page is:

      – Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible.

      I wish more journalists took care to adhere to this.

      A politician lying in political ads is very low in my view. I hope justice prevails.

      Reply
  8. Barry Woods Avatar
    Barry Woods

    I think the bit that Mann is actually suing Stein about. Is when Stein referred to the ‘fraudulent’ hockey stick in the same article.

    Reply
  9. Barry Woods Avatar
    Barry Woods

    a report said….

    … why not actually go and read what was actually said…!

    Reply
    1. JC Moore Avatar
      JC Moore

      That came from a newspaper report on the court filing. Do you want me to actually look up all the legal documents and explain them to you? I think you should do that yourself if you doubt the newspaper account.

      Reply
  10. Barry Woods Avatar
    Barry Woods

    no, not all that, just the article that it was all about!!!

    I’ll help you.

    http://www.nationalreview.com/corner/309442/football-and-hockey-mark-steyn

    Reply
    1. Rachel Avatar
      Rachel

      Barry,
      That article is a perfect example of what should not be written online and is poor journalism in my view. They’ve used potentially defamatory words like “fraudulent” and they’ve made reference to the same metaphor that Mann is suing for in the first place! Very unwise if you ask me.

      Here’s an article about the Sandusky trial if anyone is interested but note that it has nothing whatsoever to do with defamation. It’s a criminal trial involving the sexual assault of minors.

      Reply
      1. Barry Woods Avatar
        Barry Woods

        this is Stein’s original article, this is the article that Mann is suing Stein about..

      2. Rachel Avatar
        Rachel

        Yes, I’ve just realised that now. I didn’t look at the author. I’m surprised the article is still online.

  11. Barry Woods Avatar
    Barry Woods

    distasteful – yes..

    Mann, I believe is mainly suing Stein for this bit (not the Sandusky thing)

    “Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus.” – Stein

    is that particular ‘fraudulent’ worth suing over ?

    And it is of interest to me-

    because I made a comment that the title of Professor Lewandowsky paper – Nasa faked the Moon landing [therefore ]climate science was a hoax – was also ‘fraudulent’ – that just gained me an entry in the now retracted ‘Recursive Fury’ paper.

    should he have just sued me…? because I thought a title based on 2 anonymous responses in an online survey was [Mod: snip]?

    should he have sued Tom Curtis, who gave me those thoughts by writing:

    “More importantly, in my opinion, the title of the paper is not justified by the results, and is needlessly sensationalizing and offensive.” – Tom Curtis

    “It is very difficult to believe that the title is anything other than a deliberate attempt to be offensive so as to draw attention to a paper of poor quality, but which is thought to be useful for “messaging” in the climate wars. Let me leave no-one in any doubt. In choosing the title of his paper, Lewandowsky not only acted unscientifically, but immorally as well. It was a despicable act.” – Tom Curtis.

    About

    “For most conspiracy theory questions, “skeptics” only had two respondents that strongly agreed, the two scammed results. Given the low number of “skeptical” respondents overall; these two scammed responses significantly affect the results regarding conspiracy theory ideation. Indeed, given the dubious interpretation of weakly agreed responses (see previous post), this paper has no data worth interpreting with regard to conspiracy theory ideation.

    It is my strong opinion that the paper should be have its publication delayed while undergoing a substantial rewrite. The rewrite should indicate explicitly why the responses regarding conspiracy theory ideation are in fact worthless, and concentrate solely on the result regarding free market beliefs (which has a strong enough a response to be salvageable). If this is not possible, it should simply be withdrawn. ” – Curtis
    http://www.skepticalscience.com/news.php?p=1&t=155&&n=1540

    This is a Free Speech issue for Stein now.

    Reply
    1. Rachel Avatar
      Rachel

      Barry,

      I’ve been thinking of writing a post about the Lewandowsky paper but I haven’t finished reading it and I keep getting distracted by other things.

      If you want my opinion on your use of the word “fraudulent” though, then I think you would be best to avoid it. If you look up the definition of the word – “obtained, done by, or involving deception, especially criminal deception.” – then this is quite a difficult thing to prove. You can explain the facts and why you think what happened was wrong without using defamatory words like that.

      In my experience, most academics aren’t interested in pursuing legal cases so most of the defamatory stuff just gets ignored.

      Reply
      1. Barry Woods Avatar
        Barry Woods

        In Steins’ opinion peace, about a public figure, who has his ‘hockey stick’ refered to many times as fraudulent or worse, worth suing over?

        It becomes Free Speech..

        Ie I think, for reasons given above – the title of Prof Lew’s NASA paper is [Mod: snip] in the context of a tiny data sample.

        do you have the ‘Fury’ data set.. without that the paper is just an opinion piece..
        Remember 2 peer reviewers pulled out, as having deep reservations, about the paper,

        I can mail the dataset to you if you wish.

        Neither Professor Lewnadowsky or UWA have put it online, despite Lew saying he is not hiding his data.

        Initially, it was funny, because they had a guy called Richard Betts, as espousing conspiracy ideation…(and me) (Richard being Professor Betts, (full professor) Head of Climate Impacts at the UK Met Office, and an IPCC lead author, AR4 and AR5)

      2. Rachel Avatar
        Rachel

        Barry,

        In light of what I’ve written in my post I’d prefer you didn’t refer to anyone or anyone’s work as fraudulent if that’s ok.

        “I can mail the dataset to you if you wish.”

        Yes please, thanks. rachelmmartin@gmail.com
        Is this dataset available publicly? If not, how did you get it?

  12. Barry Woods Avatar
    Barry Woods

    It was available.. frontiers published it in March 2013.. It was open access.

    After people complained.. not about the collecting comments..! As Lewandowsky is trying to frame it

    but who was doing it.. ( ie the authirs were publically atagonistic to people they named in the paper.. ie conflicted..

    attributing other people quotes to the wrong people. And as we have seen totally breaking the terms of the ethics approval

    Reply
    1. Rachel Avatar
      Rachel

      So they made it publicly available initially and then removed it?

      Reply
      1. Barry Woods Avatar
        Barry Woods

        The paper ‘Fury’ and data was published. And available at the journal.

        It has been retracted.
        now only the paper and Not the dataset, so available from UWA

        The raw survey data for the NASA Moon paper is not available. UWA refuse to release it.

        When i get to my PC. I will mail it

      2. Rachel Avatar
        Rachel

        Thank you! There’s no hurry.

  13. Barry Woods Avatar
    Barry Woods

    The word has many meanings. I think my impression, given my reasons and following reading Tom Curtis’ analysis. Could be a reasonable opinion to have with respect to a definition below.

    1. acting with or having the intent to deceive

    ie the title was intent to deceive reader.. Curtis called it a despicable act!!!
    That was his genuine first reaction at the time after looking at the NASA moon hoax paper. Not to be confused with the fury paper.

    look up Prof Henry Markham co-founder of Frontiers..thoughtson the Fury paper.. Frontiers had been very kind to the authors, giving them an out.. then the authors used it to attack frontiers..
    look up his bio.. His reaction was

    Reply
    1. Rachel Avatar
      Rachel

      Yes, well Tom Curtis has also called a high profile Skeptic blogger “despicable” which caused quite a stir because I didn’t moderate it straight away.

      But in any case, I want to read the paper and decide for myself. Would you mind emailing me the dataset? Thanks!

      Reply
  14. belsbror Avatar
    belsbror

    My motto: If I do not have something good to say, I keep quiet.

    Reply
  15. BBD Avatar
    BBD

    Rachel

    I’ve been thinking of writing a post about the Lewandowsky paper

    You’ll have a fun comments section if you do. And you will have created further space for contrarian schadenfreude.

    This is not to accede to belsbror’s motto:

    My motto: If I do not have something good to say, I keep quiet.

    Rather simply a matter that needs considering if you are busy (with children, at Easter, surely not?) and don’t want the emb*ggerance of having to preside over and moderate the response.

    😉

    Reply
    1. Rachel Avatar
      Rachel

      Thanks for the warning, BBD. I know what to expect and this has put me off a little bit I must admit. It won’t be happening this weekend though because it’s Easter and we’re doing fun things but also because I’ve got lots of reading to do first.

      Reply
      1. And Then There's Physics Avatar
        And Then There’s Physics

        I reckon you could avoid reading the paper and just make it all up. Given how ill-informed most of the comments you get are likely to be, that would seem appropriate 🙂

      2. Rachel Avatar
        Rachel

        That’s a good point. I could probably just write a title – “Lewandowsky: Recursive Fury” – and nothing else and see what happens. 🙂 That would save me some time.

  16. Sherri Avatar
    Sherri

    I didn’t know about this case Rachel, but you know I would have been fascinated by it (am about all true crime, as you well know!) but thank you for posting this very salutary warning. Just goes to show that we do have to be so very careful in all we say online about others, whether or not we think it is the truth.
    PS I do remember the baby and the dingo story very well…

    Reply
    1. Rachel Avatar
      Rachel

      Sherri,
      I too am fascinated by crime. I read all the gory details of the Laci Peterson murder you blogged about recently. It was just awful but I couldn’t take my eyes away. I’m amazed the Lindy Chamberlain story made it into international news too.

      Reply
      1. Sherri Avatar
        Sherri

        The Laci Peterson story was on night and day when it first happened and when her body and that of her baby’s washed up on shore everything went ballistic as you can imagine. A couple of years after the trial of her husband, I read Laci’s mother’s book about her personal story. Very moving and powerful read that.
        Yes, the Lindy Chamberlain story was big news here.

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