The Internet has outgrown the common law of defamation, and new regulations to protect the Internet, free speech and the freedom to speak anonymously have been abused by cyber-bullies and cyber-stalkers, who have used this new medium to dispense their bullying in a greater distribution among more people. In my latest novel, I thought it may be interesting to examine the possibility of an Internet bully or cyber mob hiring a hit man anonymously through the Internet. I thought that this would be a unique idea, but, upon delving into the macabre world of the Dark Net, I realized that it was not. Most of the sites where I found for murder-for-hire were probably scams or were set up by law enforcement to catch would-be conspirators, but the concept is definitely not an original one.
The Dark Net is a controversial network, existing on the Internet, which you can only access using a special browser. The TOR browser is the most popular. Once you descend into the “onion layers” of Dark Net (they are called that because each level is like an onion, you are able to send messages anonymously and pay for nefarious services in Bitcoin, which is untraceable. This has made it somewhat of a mess for law enforcement, who often will pose as a drug dealer or killer for hire in order to make an arrest.
However, while the criminals, such as Silk Road founder Ross Ulbricht are busy using the Dark Net to commit their crimes on a larger scale, the normal Internet is home to anonymous cyber bullying, which has taken bullying to higher (and deadlier) heights.
The yellow journalism epidemic which began in the late 19th century and practiced by newspaper giants William Randolph Hearst and Joseph Pulitzer, led to the formulation of journalistic ethics, backed by a body of case law, which still apply to legitimate journalists, but have absolutely no application in the wild world of the Internet. In this wild world, anyone can become a publisher, not bound by journalistic ethics that assure that what the public is reading and believing is well researched, responsible content. It is now primarily the Google algorithm which decides what is and is not important, and this algorithm highlights and displays the most popular results, which, in most cases, are the most entertaining and sensational, not the most truthful. In short, since the Internet is now the source that most people turn to for their news and information, we are experiencing an explosion of yellow journalism, whose favorite friends are the Google algorithm, and, ironically, the First Amendment, which courts interpret allows one to express oneself anonymously.
The next victim of the Internet explosion appears to be journalism. Anyone now with an Internet connection and a computer can create a blog that can reach millions of people, thanks to the Google algorithm. Bloggers are unrestrained by the Code of Ethics that journalists swear by, which include the principles of truthfulness, accuracy and objectivity, impartiality, fairness and public accountability. To make matters worse, educated journalists have a hard time exercising their profession while at the same time paying their bills. Internet blogs and publications are no longer just bulletin board postings. They have widespread followings, and, in many cases, now generate revenue from their writings. In essence, the professional journalist can no longer compete with bloggers any more than Blockbuster can compete with Netflix.
One of the reasons that journalists are required to put their name on their work is to make them be responsible for what they write. Anonymous bloggers on the Internet are not so constrained and, in some cases, can cause the withdrawal of articles written by legitimate journalists in respected publications, such as Forbes magazine. A journalist recently came to me, expressing frustration that all his articles were removed from a publication based on an anonymous report from a blogger, worried that the blacklisting of his writing will spell the end of his journalism career, after having obtained a degree and worked in the field for many years as a respected financial writer. Such is the power of the Internet, which is allowing a rebirth to yellow journalism. The lack of accountability, education and ethical constraints has resulted in a lack of quality reporting and editorials.
In the days before the Internet, bullies, people jealous of your success, competitors in the workplace, or competing businesses were still out there; but their attacks were short-lived and soon forgotten. The Internet gives them the power to permanently destroy any reputation that is associated with any name that can be “googled,” and the results will outlast your lifetime. Questions like “Mom, was grandpa really a bad man?” may become commonplace in this cyber-age.
Technology has moved faster than the law with regard to the Internet. The Internet gives the defamer the power to destroy a hard-earned reputation with a few clicks of a mouse, with far-reaching effects, to an unlimited audience. The Google algorithm prioritizes the “most popular” searches on the first page of search results.
Let’s face it: people love scandals. Many a top news story has been made, especially in the United States, from a scandal. Remember Monica Lewinsky, for example? People, in general, love bad news; which is why the news is so full of it. Bad news is a “headline” and everything else is just a “feature.” What this means to the Google algorithm is that the more scandalous the gossip is, the better position that gossip will achieve in Google’s results, and the longer it will stay there.
Gossip which used to go by “word of mouth” would never have been published by any respectable newspaper or magazine. Now any blogger can be a “reporter” – even an investigative reporter – without any journalistic skill, responsibility or conscience. And the gossip that they spread about you can ruin your credit, cost you a job opportunity, or lose you clients.
The Internet Age has changed the rules for bullying. With the growing phenomenon of cyber-socializing on the Internet, and the fact that school-age children and teenagers have computers, iPads, and cell phones – all with Internet access – bullies can reach a broader audience with their humiliation and hate speech, do it instantaneously, and the defamation assumes a permanent place in cyberspace. This is known as cyber-bullying, and it has reached such epidemic proportions that it has been cited as the cause of many teenage suicides.
Megan Meier was the victim, in 2006, of an elaborate cyber-bullying scheme that is fairly common. As retribution for allegedly gossiping about her daughter, a neighbor’s mother and her bullying friends set up a fake My Space account purporting to be that of a 16-year-old boy. They sent messages to Megan and chatted with her, and Megan fell in love with the imaginary boy. Then came the last act: the imaginary boy sent messages “breaking up” with Megan, shared her messages to “him” all over the Internet, humiliating her, and then sent a message saying, “You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” Megan then killed herself.
Cyber-bullies spread lies and rumors about their victims, often anonymously, including pretending to be their friends (much like Russ and Gary did with me) in order to obtain personal information and photographs which they manipulate and post on blogs and websites. Bullying is also done by email and text messaging.
In the days before the Internet, bullies, people jealous of your success, competitors in the workplace, or competing businesses were still out there; but their attacks were short-lived and soon forgotten. The Internet gives them the power to permanently destroy any reputation that is associated with any name that can be “googled,” and the results will outlast your lifetime. Questions like “Mom, was grandpa really a bad man?” may become commonplace in this cyber age.
But cyber-bullies do not stop when they leave school. They become cyber-stalkers. The problem with cyber-stalkers is that they have more power when they are cloaked in anonymity, as well as less responsibility. If a cyber-stalker acts anonymously, it is harder to identify him and bring him to justice. Anonymous free speech has been upheld by the U.S. Supreme Court in Talley v. California, 362 U.S. 60 (1960). Of course, that was over 50 years ago, when there was no Internet; but it’s still a good law.
Courts have extended the protection of anonymous speech to the Internet. The U.S. Supreme Court recognized it in the case of McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341-342 (1995). In Doe v. 2The mart.com, Inc., 140 F.Supp 2d 1088, 1093 (WD Wash 2001) the federal district court in Washington stated, “The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas.” The “ability to speak one’s mind” on the Internet “without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” However, these cases are over ten years old. In the past ten years, the explosive use of the Internet has radically changed institutions and customs we have had for centuries. The e-book is taking over the printed book, marking a radical change in the publishing industry, newspapers are going out of business, the video rental industry is virtually non-existent, and the music industry has changed forever, all because of the Internet explosion.
So, as a result, you have cyber-bullies using modern technology to torture their victims to the point of despair and even suicide, and they have a Constitutional guarantee to say whatever they want, anonymously. Threats of violence, harassment of former romantic partners, and posing as the victim and posting private matters and photographs on the Internet is very common.
A cyber-stalker will go to any length to try to cause you pain and ruin your reputation. As the name implies, they will virtually “stalk” you on the Internet, to no end. In the real world, this behavior would possibly be criminal and you could seek a restraining order against it. But in the online world, there is literally nothing to protect you, and the cyber-stalker will often hide behind a mask of anonymity to prey on his or her victims.
Groups of cyber-stalkers will even organize together on Internet chat boards and help each other to harass a stalker’s victim, publishing altered photographs, threats, and personal information. These “cyber mobs” find validation in each other’s support, lose their sense of personal responsibility for their actions, and become even more aggressive when they believe they are supported and respected by the others in the mob. It gives them a false “authority” which they capitalize on by spending their time doing online “research” on their victims, which they see as a kind of “detective work.”
The law of defamation varies from state to state, but essentially, in the common law, defamation is a false statement, published to another party, that causes injury to a person. If it is an oral statement, it is slander, and if it is a written statement, it is libel.
Anti-SLAAP (Strategic Lawsuit Against Public Participation) laws exist in 28 states, the District of Columbia, and Guam. California is one of these states, with one of the strongest anti-SLAAP remedies in the country. The anti-SLAAP laws were designed to summarily dismiss lawsuits that were aimed at censoring, intimidating or silencing critics by allowing aggrieved parties to move for a summary dismissal of the suit, freezing discovery and reversing the burden of proof in cases where a party can successfully allege that the lawsuit restricts constitutionally protected activity, such as freedom of speech, compelling the Plaintiff to demonstrate evidence that it is likely to succeed on the merits without the benefit of discovery. Therefore, if you are aggrieved by an anonymous blogger’s article, who has ruined your reputation or career, you may find yourself having to prove your case upon the filing of your complaint, without the benefit of any evidence, and, if you lose, you have to pay the blogger’s attorney fees.
The law has to keep up with the times and recognize the reality that an algorithm, rather than the free and unrestrained expression of ideas, is now the mainstream of education and information in our society. But, don’t despair. There are things you can do to save your reputation if you are a victim of cyber bullying. Stay tuned for more articles in this series to discover them.