Texas lawsuit raises questions about student blogs and libel issues
Anna Draker says she is passionate about teaching valuable lessons to her students, and has been doing so for years. The high school assistant principal also says that is why, after a publicized flap over a fake MySpace profile of her, she decided to sue two of her students for libel.
Murphy Klasing, Draker’s attorney, said the married mother of two wants accountability from Benjamin Schreiber and Ryan Todd, the two 16-year-old Clark High School students who created a fake profile page for her on the Web site MySpace.com, to ensure that they do not “get away” with the emotional and physical damage she experienced.
A school official alerted Draker to the MySpace page in April 2006, a month after the page was created. Klasing said the students created the profile “in her voice” and posted false information, including doctored photographs, fabricated quotes and information indicating Draker was a lesbian.
Klasing said Draker was “devastated” and “petrified” when she discovered the MySpace page, causing her to miss days of work. He also said Draker received telephone calls from strangers requesting to meet her as a result of the posted information.
After “thinking long and hard about what to do,” Klasing said Draker decided to file a libel suit as well as a negligence claim against the students’ parents.
Draker is suing for lost wages, court costs and unspecified damages for emotional distress and mental anguish.
Draker could not comment on the case, but said she has her own opinion about social networking Web sites such as MySpace.
“It’s a danger,” she said. “A huge danger, because there are no restrictions.”
Klasing said the only way to hold the students accountable is to obtain a judgment against them.
“Anna’s biggest concern is that these kids, in a couple of years, will be adults, and they will have been taught that they can humiliate someone like this and get away with it,” Klasing said. “We’re hoping that these kids will learn when you do something that is hurtful, there’s a consequence.”
But in order for Draker to prove libel, she must show that those who read the page believed the statements about her were true and not just an attempt at humor at her expense.
Libel lawsuits are also notoriously difficult to win, especially when the person suing is a public official.
Several First Amendment organizations dedicated to protecting student rights recognize that in the Internet age, it is even more important that students understand the possible consequences of their speech. The popularity of social networking sites, including MySpace.com and Facebook.com, is increasing, with MySpace becoming the most visited site on the Internet in July 2006.
“One of our biggest challenges as an organization is to ensure that the huge number of students who have become Internet publishers understand both their legal rights and responsibilities,” said Student Press Law Center Executive Director Mark Goodman.
Goodman said the SPLC is frequently referring students to the libel and privacy page in the resource center section of the SPLC Web site, as well as to SPLC publications such as the book Law of the Student Press. On Nov. 30, the SPLC, with a grant from the Newspaper Association of America Foundation, released a new PowerPoint presentation on libel law that students and teachers can download for free from the SPLC Web site.
Blog creators are often unaware of the consequences of posting comments subject to libel lawsuits because they are ordinary people, and are not necessarily media law experts, according to a Oct. 3 USA Today article titled “Courts are asked to crack down on bloggers, Websites.”
Of the more than 50 libel-related lawsuits from the past two years listed on the Media Law Resource Center’s Web site, medialaw.org, four, including Draker’s, pertain to student expression.
While the number of Internet lawsuits involving students is small, media experts suggest that the increasing number of student could indicate a growing number of students who will be sued.
According to an online survey conducted by Pew Internet & American Life Project, 57 percent of teens using the Internet are creating their own content in the form of blogs.
And a majority of student bloggers interviewed said they were not knowledgeable and had not considered the consequences of libel.
“In my opinion, bloggers can write whatever they want,” Tanesha Thomas, a freshmen at New York University who began blogging as a student at Albany High School, said. “While blogging, I made sure that everything I wrote was professional. I mean that it articulates by emotions in a coherent manner without becoming caught up in emotion.”
Adam Kroopnick, a freshman at State University of New York Geneseo, began writing blogs for Albany High School in his senior year.
“[Libel] is not a major concern of mine,” Kroopnick said. “I know what libel is but I haven’t encountered any time when I have been writing about something that would call [libel] into question.”
Similarly, Gabe Pendleton, a graduate of Connecticut College, said he seldomly considers libel consequences while writing blogs.
“I think the average blogger has a small enough audience that no one cares about what they say,” Pendleton said. “It would actually draw much more attention to the blog if someone filed a claim about it then if no one did anything.”
Robert Cox, founder and president of the Media Bloggers Association, said no one, including students, can use ignorance of the law as a defense in libel suits.
“Any student who is out there publishing on a Web site who doesn’t understand the basic laws about being a publisher is courting disaster,” Cox said. “Better safe than sorry – understand what the rules are and then go have fun.”
Cox also said that the general public often views the Internet as the “Wild West” where users do not realize the possibilities or consequences of their speech.
“[In general,] there’s a basic rule of thumb that you don’t do anything that ends up on the front page of the New York Times,” he added. “Same goes for blogs.”
But Bruce Fein, former general counsel for the Federal Communications Commission, and Marilyn Lashner, owner and principal researcher at Media Analysis & Communications Research, both libel experts, emphasized the importance of distinguishing between opinions and facts when publishing online.
Pure opinion statements cannot be libelous because they cannot be true or false. Only false factual statements can constitute libel.
“Sources and attributions are very, very important,” Lashner said.
Fein said students who increase their knowledge of their state’s libel laws can prevent lawsuits and bolster their defense if they are threatened with legal action.
Susan Crawford, professor at Cardozo Law School and a media and Internet specialist, said the original concept of libel was designed for the select group of people who were publishers, “when the idea of having your reputation diminished on a blog seemed less likely.”
Crawford said she encourages students to continue expressing their thoughts through blogs, but while using caution.
“Students are people who have strong views and it’s a good idea for them to be bloggers and not be chilled by litigation,” Crawford said. “I hate to have legal consideration shape what people do, but if you upset someone sufficiently, they may go out and hire a lawyer.”
Crawford said she would direct any students seeking information about what is libelous to Internet resources such as the Electronic Frontier Foundation Web site, eff.org.
The Electronic Frontier Foundation offers an online guide for defamation law that provides bloggers with answers to frequently asked questions pertaining to libel.
Electronic Frontier Foundation Staff Attorney Kurt Opsahl said the Web site guides students through many blogging issues that may arise.
Opsahl said students are not always aware that libel is a concern and that they can run into difficulties by expressing false statements as fact. He also said that teaching students about their rights and responsibilities on the Internet is incredibly important.
“It would be tragic if schools prevented students from blogging,” Opsahl said. “A better approach is to teach them to blog well, how to understand their rights and what the principles are surrounding journalism.”
Draker’s attorney filed her lawsuit in August and does not yet have a court date.
Shortly after the suit was filed, Schreiber, one of the students named in the lawsuit, wrote a letter to Draker admitting that he created the MySpace page with other students. The letter, a copy of which was provided to The Report by Klasing, suggests that Schreiber did not understand libel and its consequences.
In 2007, Sandy Woodcock, the director of the Newspaper Association of America Foundation, said her organization plans to collaborate with the Student Press Law Center in a Podcasting project to address the need for increased education in issues such as libel.
“We really need to educate everyone, not just student journalists,” Woodcock said.
Before Draker’s lawsuit was filed, Schreiber was criminally charged with fraudulent use of identifying information, a misdemeanor. Jill Mata, the Bexar County district attorney, said Schreiber’s court hearing took place on Oct. 16. He was placed on informal probation and is required to report to a probation officer, perform community service and participate in counseling for no longer than six months.
Schreiber and Todd, as well as their families and lawyers, could not be reached for comment.
reports, Winter 2006-07