Contextualizing TechDirt's victory in libel case

Den Howlett Profile picture for user gonzodaddy September 6, 2017
Freedom of speech is a cornerstone for our existence. Seeing TechDirt win in its defamation case is good news.

freedom of speech, defamation
TechDirt has prevailed in its First Amendment defense against Shiva Ayyadurai, who claims to have invented email. Before getting into the detail, it's worth pausing to both thank and congratulate TechDirt on its victory. Such cases can bring businesses to their knees, a fear that was always present in this case. It's important in the context of fake news as both a spray painted meme and prop for marketers unhappy with contrarian opinion.

The TechDirt case rested upon an examination of 14 articles written by TechDirt founder Mike Masnick (who wrote 13) and Leigh Beadon (who wrote one story), debunking Ayyadurai's claim to invention. One of its early headlines was clearly inflammatory: Why Is Huffington Post Running A Multi-Part Series To Promote The Lies Of A Guy Who Pretended To Invent Email? but as the judge found, an arguably link baity title doth not a defamatory article make.

U.S. law on defamation is especially interesting because it is both difficult to prove in many cases by plaintiffs and is often ruinously expensive for media that does not have deep pockets, even when it has First Amendment right protection.

While different in case type, witness what happened with Gawker when, in that case, Hulk Hogan's privacy was found to be invaded. Gawker went bankrupt.

In this case, TechDirt feared that the costs of litigation, let alone any final settlement, would have endangered TechDirt's existence. That of course, cannot be a defense, but in the U.S., First Amendment rights to freedom of speech are vigorously defended as they are rooted in an ongoing debate about the manner in which the American democratic experiment unfolds.

Unfortunately, at times, that same argument spills into the tech sector - an industry that has elevated hyperbole to an art form and where claims are routinely couched in language that far from being outright lies often appear to be a bending of the truth. We, for example, frequently see press releases that start with "XYZ company, a leader in (name your tech topic here)..." that go on to bloviate about some vendor no-one has heard about in a niche about which few care.

In this case, the nub of the argument centered around the question of 'invention,' another word that frequently appears in press releases as a device designed to add gravitas where none exists. TechDirt had consistently debunked Ayyadurai's claims, often susing florid language to emphasize the point. Example:

For almost five years now, we've been among those explaining why Shiva Ayyadurai's claim that he invented email is complete bullshit. It's not true. Not even remotely. What does appear to be true is that as a fairly bright kid, Ayyadurai was working for a small college in New Jersey and he wrote an electronic messaging program for the school, which he named Email. It was not the first. It was not the last. It was nothing special. Nothing about what Ayyadurrai did was new -- even if he came up with the ideas entirely on his own. Basically every feature that he put in the application was previously discussed on open mailing lists and RFCs about the internet and the messaging systems that would be grafted onto it -- sometimes many years earlier. Ayyadurai tries to rely on the fact that he got a copyright for his program as proof, hoping to confuse people who don't understand the difference between a copyright and a patent. As we've noted in the past: Microsoft has a copyright on the "Windows" operating system. That doesn't mean it invented windows-based graphical user interfaces (because it did not).

The language didn't matter because, according to the ruling, the language TechDirt used was protected under law. It was, in essence, an opinion. What's interesting from a technology perspective is that because there are a number of definitions of what constitutes email, TechDirt could not have libeled Ayyadurai.

This last point is a fun one for us as we often  see companies claiming ERP status. At the risk of going over convoluted ground, there are generally understood definitions of what ERP means but because there are competing definitions opens the door for all manner of claims.

FWIW - we test each on its merits, taking as our baseline, the well known SAP system that has financial accounting and HR at its core. Things get a tad murkier when discussing 'front office' since this is often associated with sales and marketing operations yet we know that the roots of what we now call CRM - a TLA with which I have had numerous problems - is rooted in sales administration functions. But you get the point.

In addition, TechDirt won on the matter of comment posted to various articles. Masnick writes:

We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.

This is an important ruling for media ventures like our own where we often proffer opinion on contentious issues. As we say to all who complain: feel free to challenge us on facts but please don't try the same thing on the manner in which we express our view or those who choose to debate with us on our media site. In recent times, we have seen Al Jazeera shut down comments claiming excessive abuse. You can argue that case in many ways, but then we've also seen a rise in the degree of control over content on some community and brand sites.

We suspect that the current climate of nervousness stems, in part, from concerns over 'fake news' but then brands have historically failed to adequately address customer discourse in favor of a diet of happy talk. That has to be fixed if business is to become truly transformed in the digital age.

TechDirt didn't win all the way around. It lost on anti-SLAPP, which would have allowed TechDirt to recover its costs. This is an issue over conflicting state law. The case was heard in Massachusetts which didn't award costs. If it had been held in TechDirt's preferred state of California, then it would have won on costs.

Finally, according to Ars Technica, Ayyadurai plans to appeal the decision:

Charles Harder, Ayyadurai's attorney, e-mailed Ars a statement on behalf of his client, saying that Ayyadurai would be appealing the ruling.

"False speech is not protected by the Constitution, and TechDirt’s false and malicious speech about Dr. Ayyadurai should receive no legal protection," Ayyadurai said in the statement. "False speech does harm to readers, who are misled by it; it does harm to journalism, which is weakened by it; and it does harm to the subjects of the speech, whose reputations and careers are damaged by it."

Sheesh. Doesn't this guy know when to give up?

Image credit - via Post Traditional Buddhism

Disclosure - SAP is a premier partner at time of writing

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