BRATTLEBORO — When Christopher Grotke and Lise LePage returned to Brattleboro from a journalism conference in Washington, D.C. last October, the proprietors of iBrattleboro.com found a deputy waiting for them with a libel lawsuit.
“Our first reaction was that we looked at it and said, 'What did we do? We're not bad people? Or are we?'” said Grotke, recalling the couple's initial shock.
Grotke and LePage founded iBrattleboro in February 2003 through their Web development business, MuseArts, Inc. The growing Web site provides material from “citizen journalists” and has become the couple's primary project.
The couple configured open-source Web software - free software developed by a cadre of volunteer programmers - called Geeklog to create a message-board site with a cornucopia of other features.
In much the same open-source premise, iBrattleboro users can contribute articles and comment on other users' contributions.
Grotke and LePage have encouraged user participation on the site, erring on the side of letting their users express themselves in posts that mix conscientious reportage with no-holds-barred opinion.
The site now features almost 1,700 registered users, including Grotke and LePage, who often weigh in on the issues and who often cover Brattleboro town meetings. The site also welcomes 50,000 guest readers a month.
At issue was the words of one of those users, David Dunn, last fall.
After Rescue Inc. volunteer Effie Mayhew wrote an op-ed in the Sept. 27 Reformer critical of Dunn, then the executive director of the nonprofit community emergency medical service company, he posted a response on iBrattleboro that accused Mayhew and a “married member of the Rescue, Inc. board of trustees” of conducting an extramarital relationship on the agency's site.
In response, Mayhew sued both Dunn and iBrattleboro for libel, intentional infliction of emotional distress, and punitive damages for the maliciousness, claiming in her complaint that Dunn's post resulted in anonymous telephone calls “using the foulest and filthiest language conceivable.
But on March 18, Windham Superior Court Presiding Judge David Howard declared iBrattleboro immune from the lawsuit, on the grounds that iBrattleboro meets the legal definition of an “interactive computer service” as outlined in the sweeping federal telecommunications reforms passed in 1996.
The issue at stake was simply “whether a Web site that was available for someone to post if they wish,” like iBrattleboro, “is liable for content,” said Brattleboro Attorney Jim Maxwell, who represented Grotke and LePage in their defense and who counts the Radio Free Brattleboro case among the “stormy fights” he's weathered in the area of media and the law.
“I think this was in my view about as open and shut a case as you could get,” Maxwell said. “The decision has nothing to do with defamation per se. All this did is it said that iBrattleboro is an interactive computer service.”
Section 230 of the Community Decency Act of 1996 says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
“The Court is of the opinion that the fact [that iBrattleboro is an interactive computer service] is not subject to reasonable dispute,” Howard said in his ruling, which legally ended iBrattleboro's involvement in the suit.
Counterintuitive?
Grotke said that he and LePage have received support from many local people ranging from iBrattleboro users to bloggers.
But “the farther away from being a citizen journalist, the less understanding people seemed to have” about the legal issues at stake, Grotke said.
Grotke found it ironic that newspaper editorials - historically written anonymously as the voice of the newspaper, as it were - took iBrattleboro to task for letting its users post opinionated content anonymously.
“Some editorials took us to task for not being held to the standards of newspapers,” Grotke said. “But that's the point - we're not a newspaper.”
In drafting a law that treats the Internet differently from traditional print media, “Congress recognized that the Internet is fast and furious,” Grotke said.
Section 230 exempts iBrattleboro from liability even though Grotke and LePage exercise some editorial judgment in their stewardship of the site when they approve or reject incoming stories for access on the site.
“Story submissions are placed in a queue and we get to see them before they go up,” Grotke wrote on the site March 20, after Howard's ruling.
“We don't edit stories for content, and we don't filter stories to make sure everyone agrees with us,” Grotke continued. “If a story submission contains an original thought, has a local angle, and follows the policies it goes up. We occasionally help with formatting, such as breaking up long single paragraphs into smaller ones to make your submission easier to read.”
Only registered users - those who have provided an e-mail address - on the site can comment on others' posts, Grotke continued.
“Comments go up immediately unfiltered,” Grotke wrote. “We see them when you see them. We cannot edit comments, but we can delete them. Our preference is that everyone write in such a way that we never have to delete a thing - and this is increasingly true of the site. We are extremely happy to see everyone keeping the site fun, useful, and engaging.”
In the Mayhew case, Dunn, a registered user, posted a comment to another story.
“By the time we saw the comment, we knew that others had seen it too and the cat was out of the bag,” Grotke explained.
Grotke pointed out that the debates over Dunn's stewardship of Rescue, Inc. were being played out in the public eye and that, in itself, created a newsworthy context.
“We were somewhat stunned and didn't really know what to do,” Grotke noted, and so he and LePage kept the comment posted until they were served with the lawsuit.
Section 230 is misunderstood among traditional print journalists, says consultant Mark Potts, acting vice president and editor of Philly.com, one of many Internet professionals following the iBrattleboro case with interest.
“As journalists, we're all about control. We want our hands on the tiller at all times,” Potts said, noting the disdain many traditional news venues have for community sites like iBrattleboro that feature user-generated content.
Potts pointed out that the thought that somehow citizen journalism sites get a free ride in the eyes of the law is misguided, since newspapers' Web sites are afforded the same protections under Section 230 as iBrattleboro.
“If a newspaper publisher puts up a comment area, the publisher then becomes a distributor,” Potts said, and the individual user bears the full consequences of liability for any comments posted on the site.
Section 230's protection holds even for sites that go in and edit a user's post for grammar.
“If you as the editor change the meaning of a post, then you've got a problem,” Potts said.
Original liability claim still stands
By all accounts, the ruling does not dismiss Mayhew's complaint against Dunn.
“At this time, we do not have any comment,” said a receptionist for Mayhew's attorney, Margot Stone, of Stone Law Offices in Brattleboro.
As for the ruling, “it shows the system works,” Grotke said.
“In the assignation of liability,” Grotke said, “it shows someone can be held liable for the words [posted on an interactive computer service]. It's the person who said them.”
“Her lawsuit says [Dunn's post] is not true; his [response] says it is true,” Grotke said. “We have no way of knowing, and really don't think it's any of our business knowing.”