After yesterday’s post on the “Make Them Scared UW” website, several questions rolled in that make for some interesting follow ups.
The site, constructed by some University of Washington students, allows for the anonymous posting of names students say engaged in sexual assault and harassment, as well any other information associated with the incident or incidents. According to The Daily at the University of Washington, 41 names were published as of Monday.
In the FAQ section, the administrators explain, “Make Them Scared is a communal rape list. It is intended to be an online hub for anyone who wants to expose the names of their attackers and harassers, and to fill a gap left by inadequate treatment of these cases by formal institutions.”
In addition, the administrators state:
Q: Why are you called “Make them Scared”?
A: This admittedly ominous-sounding name alludes to the injustice of women having to live their life in fear of sexual assault and harassment, while perpetrators can easily live their lives free of any fear of being caught or held accountable for their actions. Our goal is just that: to make perpetrators afraid that if they commit or have committed an act of sexual assault or harassment, they will be held accountable for their actions.
Rather than rehash all the information on libel, my personal paranoia about anonymous allegations of any kind and the issue of sexual misconduct of any stripe, we’re going to talk about four key questions that came up in the wake of yesterday’s post:
WHAT ARE THE RISKS TO THE PEOPLE POSTING CONTENT ON THIS SITE?
Several people asked this question and much of the post yesterday touches on this in regard to the potential for libel. The individuals who post statements like “PERSON X from SCHOOL Y raped me” are making statements of fact, not opinion. An opinion statement like “I wouldn’t think anyone would want to be alone in a parked car with PERSON X from SCHOOL Y” or “PERSON X from SCHOOL Y isn’t someone I would feel safe around” would have fewer risks. The statement of fact (as in, “I’m declaring this to have actually occurred.”) opens the poster up to a potential libel claim.
The most crucial issue here is whether a claim can be proven to be demonstrably false. The other items noted in the SPLC’s libel checklist will likely be checked through posting a rape declaration on this site: Publication (check), identification (check), harm (probably going to be a check) and fault (probably a negligence standard, as these appear to be private figures and that’s easier to prove). The issue of “crying rape” has been discussed in the previous post (To be clear: I believe victims and false allegations are extremely rare), but with an anonymous set up, it is possible that a “prank” allegation could get through at some level or that the verbiage the person uses in describing their attack could be legally insufficient.
In short, a lot can happen here, so potential ramifications aren’t clear cut.
CAN WEBSITES REALLY BE SUED FOR WHAT OTHER PEOPLE WRITE ON THEM?
I got this question from a student media adviser and it’s a good one:
The (blog post) doesn’t note – and correct me if I’m wrong about this – that
the owner of a site that allows people to post comments can’t be sued for
those comments, even if they monitor posts. That’s the law as I understand
it and as our attorney explained it to us. Newspapers, of course, want to
be ethical and responsible, but if a libelous comment slips by and gets
posted under a story, the newspaper/publisher/owner of the site can’t be
Courts have sought ways to hold harmless owners of websites when people post content on them that might be in some way defamatory or otherwise illegal. One example of this is the Online Copyright Infringement Liability Limitation Act, in which lawmakers struck a balance between protecting copyright and indemnifying websites against harm. OCILLA provides a process for all parties involved to work through issues associated with illegally posted material. For example, if person posts a photo that belongs to someone else, the actual owner can reach out to the publication and work to have that content removed without the risk of the publication being sued for copyright violations.
A more germane law in this case is Section 230 of the Communications Decency Act states that Internet providers and other media platforms are not liable for content posted to their site by people who are not directly connected with the organization. This is what the adviser was asking about in relation to the “Make Them Scared UW” site.
Congress provided Section 230 as a shield for providers who wanted to monitor discussion forums and remove offensive content. While the earliest court cases involved Internet service providers, such as America Online (AOL), courts have broadly applied the protections under this section. They have immunized social networking sites like Facebook and sales sites such as Amazon.com for comments users made on their sites. Site operators run a risk of losing that immunity if they actively encourage people to post illegal material. Beyond that exception, however, the courts have generally favored publishers.
This basically means that if someone were to go on your student newspaper’s website and post under your story about the university president winning an award that “Sophomore Bill Smith murdered three people and got away with it,” you could get rid of the comment without fear. In addition, Bill Smith would be unlikely to win a lawsuit against you based solely on that random person’s comment.
Broadly speaking, the presence of an open forum in which people can post potentially libelous content will not lead the owner of that forum to fall victim to a libel suit. Thus, the adviser is right about what his lawyer told his newspaper staff. Stuff that random schmoes post on their newspaper’s website that has the potential to libel people is a beef between the poster and the person being posted about.
However, there is a distinction that’s important to understand between the issue the adviser noted about his newspaper’s liability regarding comments and the “Make Them Scared UW” site, which is where question came in…
DOES THIS LAW ACTUALLY PROTECT THIS WEBSITE?
Section 230 was meant to protect internet “providers,” which was initially associated with places that sold you internet access and then spread to open social media platforms like Facebook and Twitter. This is why Mark Zuckerberg doesn’t worry about going broke every time that guy in your dorm gets drunk and starts writing horribly defamatory stuff about the girl who just dumped him.
The dorm dude is in trouble but Mark is fine, and the reason he is fine comes down to the fact he isn’t serving as a publisher. Simply speaking, Mark Zuckerberg doesn’t solicit specific content from you or assign you content to post. He doesn’t vet the material and make editorial choices about what will be published and what can’t be seen publicly. He doesn’t get involved in the day-to-day choices of what gets produced on his site and what doesn’t.
The “Make Them Scared UW” site runs on a wiki, but one in which content is submitted to the people who run it. Those people make choices about what is published and what isn’t. They vet the content and serve in other editorial capacities, it would seem, based on how the information is gathered. It uses a website form to have people submit content directly to the administrators for examination. It also explains the process of how a name gets added to the list:
Q: What will happen after I submit a name?
A: One of our site’s moderators will review your submission, verify your contact information, and after receiving your confirmation, publish the information you provided us (minus any personally identifying info) on the list page on our site. The information you provide us will not be used for any other purposes. Whether or not a submitter wants to also report to academic or legal institutions is their choice, not ours.
Based on this process, I asked media law expert Chip Stewart for his thoughts on if this fell under Section 230 or if the site ran some serious risks:
I think gathering info in this format, then reviewing it, then pushing it to a wiki is an act of publishing — they’re not just an “interactive computer service” at this point. This isn’t comments section or a chat room or a forum in which the ISP is a bystander… This is bad. I don’t see Sec. 230 stretching to protect something like the anonymous sexual assault website.
Stewart said this felt akin to a court case involving the Roommates.com site, where drop-down menus prompted users to provide information that actually violated federal housing laws. The court ruled that this kind of prompt structure, which mirrors the approach “Make Them Scared UW” uses, made the website more of a publisher than a distributor.
In short, the court could go either way, but this is a risky approach.
AREN’T THE POSTERS AND THE ADMINISTRATION ANONYMOUS? EVEN IF SOMEONE COULD PROVE LIBEL, HOW ARE YOU GOING TO CATCH THE PEOPLE ASSOCIATED WITH THE SITE?
People leave digital footprints everywhere they go, whether they know about them or not. In most cases, the companies that manage and maintain that data will keep it safe and push back against anyone in the public asking for unmasking of this information. However, court orders change the game, Stewart said:
The ISP (Internet Service Provider) will roll over on its (the website’s) creators upon subpoena.
Twitter says as much in its guidelines for use, noting it will comply with subpoenas for private information. Blogger, which appears to be the hosting site for the “Make Them Scared UW” blog, has already gone through this in a high-profile case involving a fashion model and an anonymous blog. The blogger was unmasked and later threatened to sue Google for violating her privacy, but experts said the case held little chance of success:
Jeffrey Toobin, CNN’s senior legal analyst, said Google was complying with a court order and that disclosing Port’s name cannot be viewed as violating her rights.
“Google never promises anyone absolute anonymity,” Toobin said. “There are all sorts of circumstances when Google cooperates with law enforcement.”
Google itself also made it clear that your desire to be anonymous isn’t going to be the company’s concern in many cases:
In response to CNN’s request for an interview, Google issued a statement:
“Google does comply with valid legal processes, such as court orders and subpoenas, and these same processes apply to all law-abiding companies. At the same time, we have a legal team whose job is to scrutinize these requests and make sure they meet not only the letter but the spirit of the law.”
This makes it highly likely that if an individual on that list were to feel strongly enough about filing a libel suit and make a strong enough case in doing so, a subpoena would be enough to break through the anonymity shell surrounding the site and its posters.