How to Save Yourself From a Defamation Suit: Hedge, Snark, Link

A court gives the Internet another reason for linking: avoiding libel.

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Shutterstock/Jakub Krechowicz

In January 2011, just after that year's Consumer Electronics Show, Gizmodo published a post titled "The Greatest Scam in Tech." The story, written by John Herrman and Adrian Covert, concerned a deal offered by the cell provider Peep Telephony: It claimed to offer free cell service through the magic of mesh networking. The Gizmodo authors were not sold on this claim.

The Gizmodo authors said as much -- and, being Gizmodo authors, they expressed their skepticism smartly and sarcastically and a little bit cynically. So cynically, Ars Technica reports, that their story was met with a libel suit, filed against Gawker Media by Peep Telephony founder Scott Redmond.

In a decision handed down last week, though, a California appellate court -- under presiding judge Sandra Margulies -- dismissed the case. And it did so on anti-SLAPP grounds: Essentially, the court decided that the Redmond suit represented not defamation, but instead an attempt at censorship.

Margulies, with judges James Marchiano and Kathleen Banke concurring, came to this decision based on three separate but related qualities of the Gizmodo post.

1. It hedged.
"The authors couched their conclusions in the language of 'apparency,'" the court notes. They used words like "arguably" and "seemingly" -- words that, though they might have been followed by accusations like "scam," made it clear to the reader that the story contained opinions being expressed rather than facts being declared. Their language was, as one of Judge Margulies's footnotes puts it, "inherently subjective."

Which is another way of saying that, in this case, the authors' humility saved them. By arguing rather than declaring, they helped ensure that their words remained protected under the First Amendment. "The Gizmodo article," the court found, "constituted protected opinion and cannot provide the basis for a successful libel suit."

2. It snarked.
Another twist on the same idea: The Gizmodo article, the court notes, was written "in a casual first-person style, which puts the reader on notice the authors are expressing their own views rather than stating objectively verifiable facts." The article, Judge Margulies writes, "has the tone and style of a sarcastic product or movie review -- negative about its subject matter to be sure, but with little pretense of objectivity." It is the opposite of the just-the-facts-ma'am style made paradigmatic by so many newspapers and magazines; on the contrary, it's snarky and sarcastic and the obvious product of a unique voice (or two).

3. It linked.
The Gizmodo article features many, many prominent links. As Margulies puts it, "the sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources -- mainly Web sites and promotional material created and maintained by Redmond and his ventures." In other words: "The article is completely transparent."

And that means, as far as the court is concerned, another nod toward subjectivity. Herrman and Covert weren't asserting facts, Margulies is saying; rather, they were expressing an opinion based on facts. Facts, in particular, that exist independently of their expressed opinion, with the independence demonstrated through links. "Having ready access to the same facts as the authors," Margulies notes, "readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies."

The facts, in other words, spoke for themselves. And, in that, they protected the speech that put them to use.

Those findings, Ars Technica's Eric Goldman notes, amount to "a great ruling for bloggers." And Margulies's last point is -- arguably! seemingly! at least, as far as your correspondent believes! -- the most interesting of the three. A link itself, and the rich suggestion of humility and civility and externality that it carries with it, isn't just an instant pathway to another spot on the World Wide Web. It is also, the judge is suggesting, an implicit admission of subjectivity. It says, "Here why I'm saying what I'm saying. By all means, check it out for yourself."

Simply including a link in a story is its own rebuke to the cult of objectivity, to the vagaries of disembodied fact -- to the idea that the voice of the author is also the voice of God.

Which is another way of saying that the Redmond dismissal amounts to a legal argument for subjectivity itself. It suggests that writing from the first person -- and admitting uncertainty, and showing the consensus that emerges both from and despite ambiguity -- is not merely honest. It's not merely a fitting reflection of the realities of the information-gathering process. It's also a kind of blanket legal protection for those engaged in that process. The best practice, in this case, is also the safest practice. Link! And then link again! And then link some more, just to be safe! Gizmodo, the court suggests, might have been liable for libel had it affected more certainty or authority -- or, yes, "objectivity" -- in its article. Had it implied that its post conveyed fact rather than opinion, this story might have ended very differently. But Gizmodo stayed casual. It stayed snarky. It stayed humble. And that's what saved it.