I spent about 20 minutes in totally stunned brain lock, trying to find a way to introduce this post and what inspired it. Since I still have nothing, let’s have the student journalists at The University of Washington explain the source of my consternation: a website someone on their campus unveiled last week:
A site called “Make them scared UW” allows users to anonymously accuse people of sexual assault and harassment. In less than a week, dozens of allegations have been made against men both within and outside of the UW community.
The site published eight names Wednesday, Sept. 26. As of Monday, Oct. 1, there are 41 accusations of sexual assault or harassment. Administrators of the website told The Daily via email that the website has received more than 5,000 page views during this time. However, not all allegations published to date are against students at the UW.
The site’s domain name was registered Nov. 29, 2017, with additional security so as not to reveal the identity of the individual who registered it.
The website claims it will update daily as new accusations are brought forward. Those running the website hope it inspires similar projects at other schools, and they have included resources to do so.
This was about as restrained as my first reaction could be:
Or something to that effect…
Anyone who publishes content for public consumption on any platform needs a healthy respect for the law. Media writers hear the phrase “I’ll sue you” more often than the phrase “Is anyone eating this last slice of pizza?” is heard in a college dorm. The most prominent legal concern in the media community is the concept of libel, which many people accuse journalists of even though few of them actually understand what it means.
And just so we’re clear, The Daily’s news story on this website is fine in terms of legal issues. The people who posted on this website itself? This seems like it’s a libel suit waiting to happen. Just to make sure I was right about this, I asked that question of Daxton “Chip” Stewart, a media law expert and faculty member at TCU.
Stewart discussed a similar issue last year when a public spreadsheet titled “SHITTY MEDIA MEN” made the rounds. The document allowed women to share their experiences anonymously pertaining to specific men in the media field who engaged in abuse and harassment:
“Anyone on that list could sue for libel. And anyone contributing to the list would be a potential defendant,” said media law professor Chip Stewart via Twitter direct message. “Labeling someone a rapist or sexual harasser is making a statement of fact. It’s not enough to say ‘it’s only a rumor I heard.’ You’re going to be subject to lawsuits if you’re the person who spreads the rumor. Or the person who created the document in the first place. Or if you republish it.”
When it came to similar concerns about the “Make Them Scared UW” website, his response couldn’t have been clearer:
Yeah… everyone who touches that thing is a potential libel defendant or witness.
Libel refers to the publication of false, defamatory statements that can harm a person’s reputation. The harm can come in a variety of ways, such as financial losses, persistent ridicule or societal hatred. The Student Press Law Center outlines four key points an individual must demonstrate if he or she hopes to successfully sue for libel:
Before we get too deep into this topic, the first big thing to keep in mind is that libel applies to FALSE statements. The truth has been the best possible defense against libel since the days of John Peter Zenger when powdered wigs were in fashion. Truth protects journalists from libel concerns in almost all cases and it is the main reason why people like me push so hard on students to make sure every story is 100 percent accurate.
The second big thing to keep in mind is that I am in no way, shape or form accusing ANYONE of making false accusations regarding sexual assault, sexual harassment or sexual misconduct. Everything I know, have read, have learned and have discussed on this topic leads me to believe victims. FBI data shows that false claims represent only 2 percent of all sexual assault claims, or essentially the same percentage of false reports for any other felony.
The thing that makes this situation different and simultaneously concerning is that significant differences exist between any type of claims made formally to police or other authorities and statements made anonymously on a website. I don’t know how the administrators of this site go about verifying information, including the identity of the individual making the claim. The Daily’s article indicates vetting occurs, but it is unclear the degree of rigor associated with that vetting. Generally speaking, I fear risk and this seems like an extremely risky situation that is just asking for a libel suit if the site’s administrators aren’t extremely careful.
For the sake of argument, let’s walk through each of four points listed above and apply them to the posts people make on the “Make Them Scared UW” site:
Publication: The material must be disseminated to someone other than the person who is claiming to be libeled. This is often misconstrued as being “a newspaper thing,” as people assume publication has to be some mass-distributed paper of some kind. The truth is you can libel someone in an ad, in a press release, on Twitter or on a blog, just to name a few. If you hand wrote something that met the level of defamatory falsehood noted in the definition of libel, made 100 photocopies of it and then passed the copies out around campus, you have published content.
In the case of this website, it is available for public consumption and according to The Daily’s article, “Administrators of the website told The Daily via email that the website has received more than 5,000 page views during this time.” That would appear to easily meet the standard of publication.
Identification: The material must be “of and concerning” the person suing for libel. Traditionally, the simplest way to prove identification is to establish that the defamatory material names the individual suing for libel. If you wrote something horrible and defamatory about “UWO journalism professor Vince Filak” (please don’t), I’d have a pretty easy case in proving identification.
However, not naming someone doesn’t get you off the hook. If you referred to a “UWO journalism professor who lives in Omro, Wisconsin, and has published at least three textbooks with the word ‘Dynamics’ in the title,” it’s pretty easy for me to demonstrate identification has occurred. In the case of the “Make Them Scared UW” website, identification is more simple. The story notes that the site lists names and in some cases more:
The wide range of allegations are attached to the name of the accused and include other identifying information such as workplace or campus affiliations in some cases. In other cases, there is no more than a name, a rape allegation, and a “no” where the website asks if the accuser reported the incident.
This is also where this site deviates significantly from #metoo and other similar discussions of sexual assault, harassment and misconduct. In those movements, people generally did not specifically identify their assailants, as you can see in this series of examples. Any individual in those cases who felt they had been falsely accused and wanted to attempt a libel suit would have a much tougher time proving identification than would the people named on the “Make Them Scared UW” site.
Harm: The person suing must demonstrate that the published material does serious damage to his or her reputation. People can demonstrate this in a variety of ways, such as financial loss and loss of standing within a community. For example, if a libelous statement about me cost me my teaching job, I can demonstrate financial harm. If a libelous statement led to my picture getting posted at the local grocery store with a warning, “DO NOT LET THIS FREAK NEAR THE AVOCADOS,” I could demonstrate loss of reputation.
The standard for establishing harm varies based on the context, the person, the community and other issues. For example, saying a man is “sexually active with a woman” probably wouldn’t disparage the person if he is married and trying to have children with his wife. However, that same statement about a Catholic priest, who has taken a vow of celibacy, could be defamatory.
SPLC lists some these topics as “danger zones” for libel concerns:
- Accusing someone of committing a crime
- Making sexual references, including intimations regarding sexual activities, sexual proclivities and sexual orientation
- Producing claims of unethical or unscrupulous behavior
- Associating someone with a contagious disease or unsavory actions
- Using statements that allege racism or other forms of bigotry
I might be overstating this a touch, but I’m going to say I’d have a hard time right now thinking of a riskier area in terms of potentially harming an individual’s reputation than accusing him or her of sexual assault, rape or other similar misdeeds. Given that the website essentially gives people the opportunity to accuse people of these actions, it seems harm is here.
Fault: The person alleging libel must demonstrate that the reporter created harm through an act of commission (did something wrong) or omission (failed to do something he or she should have). The standard for establishing fault differs based on the plaintiff in the case. Private individuals must only show that the defendant acted with negligence. Public figures must demonstrate that actual malice was present.
The people named on the site, from what I can tell, would likely fit into the private individual category, and thus the lower standard of negligence would apply here. The issues debated here would include how much vetting did the site administrators do before allowing names to become public, what level of proof was required for them to publish the names and what else did they do or should they have done to avoid harm to the accused.
The Daily story notes:
Since its launch on Monday, Sept. 24, moderators have requested additional information from accusers that they say they are using to vet the allegations.
The website moderators acknowledged that they are aware publishing false accusations makes them vulnerable to libel or defamation lawsuits.
“We hope that anyone whose name was inaccurately posted on our site will let us know so we can remedy the situation. We’ve verified each claim to the best of our ability, and have not published any claims which we believed to be false,” the moderators wrote in an email to The Daily.
Several names have been removed from the list.
It’s unclear from this how the vetting occurred or if the courts would see this as meeting the proper level of care. In addition, removing the names after accusing people of this would not necessarily shield these individuals from a libel suit.
Overall, this website appears to be the kind of thing that leads me to break out in hives. I went there to take a look at the content and even being there, I had this going off in my head:
I didn’t want to link to it, post content from it and I was even worried about writing this post that talked about it. With that in mind, I asked Stewart for any words of wisdom he thought might put this whole thing into perspective. He told me I was essentially fine writing about it, but also mentioned this:
Just remember that hyperlinking to these things is legally OK for journalists, but ethically dicey. But once you repeat it on your site, you’re probably republishing and liable as well. Proceed with caution.