"Can I Sue Topix?" is a question that I am asked in one form or another just about every week. I cannot provide legal counsel of any kind, but I can share with you what I know about the laws as they stand right now as well as how recent legal action involving Topix has fared.
So, let me start by saying that you can sue anyone for any reason. You just aren't likely to win and in fact most lawsuits against Topix, based on abusive and defamatory posts made by others, are likely to be summarily dismissed. This is because the laws in place, protect Topix from being responsible for abuse of their website.
To draw an analogy, you cannot sue a kitchen store for selling knives, if someone walks into the store and uses one of the knives to harm someone. But most, if not all, kitchen stores but knives behind a glass or at least package them in hard clam shells because they want to do whatever they can to protect people. Topix basically puts their website out there for everyone to abuse, and then washes their hands of any legal action against them, claiming that it was the poster to broke the law, not them. And while legally speaking that is true, they have really done little to prevent it from happening in spite of it having been a recurring problem for half a decade now.
There is little cost to Topix for cooperating with a court order for an IP address (in spite of a totally ridiculous assertion made that they would have to pour through paperwork for hours which was made in an ANTI SLAPP motion years ago). Certainly Topix brilliant code writers can zippy-fast come up with IP addresses of posters and visitors alike to the site unless they have deliberately chosen not to. Court orders, police action and subpoenas for IP addresses simply divert the responsibility of abuse away from TOPIX and towards the abuser. This is not to say that those who abuse Topix, or any other website, should not be held accountable but my position has always been that if you let loose a rabid dog in a children's park, you can hardly just blame the dog and not the person who released the dog. Topix knows full well that its site is being abused rampantly but they have crushed their consciences and chosen to only look at the Topix regulars clubhouse or the occasional political whistle blow to justify the site.
So, the simply answer to the oft asked question of CAN I SUE TOPIX, the simple answer is that you can but you will probably not win.
All is not lost though. One of the advantages of a Topix lawsuit is that there are alot of victims and that when pitting a greedy corporation against individuals who have lost jobs, have suffered psychological harm and especially parents whose children have been abused and tormentedon the site, a jury is likely to side with the victims and not the corporation. For more information about who owns Topix, go to our sister website here. We continue to hear from people who have consulted with lawyers and we continue to monitor the situation from a legal standpoint. Our feeling is that as the number of angry victims grow, the more legal options will become available to us. If you have been abused on Topix, be sure to print out the abusive post about you before you ask for it to be deleted (instructions here). Keeping a record of the post and all documentation of any harm that you have suffered, will help us help you when and if the time comes.
It is the belief of this author that Topix has created a web forum so powerfully abusive and destructive and so devoid of any ethical boundaries, that without voluntary action on the part of Topix, the laws which immunize Topix must be amended:
As discussed throughout this website, the Communications Decency Act Section 230 in summary says:
No 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.
As a result, a layer is created which both protects and harbors abusive use of the internet absent of a court order to remove the veil. This is an ineffective and intolerable state for both citizens and the government for the following reasons:
1) Our current legal system relies on the ability of two parties to negotiate. When one party is allegedly harmed by another party, the harmed party contacts the aggressor issuing a cease and desist. The majority of tort law is resolved through out of court negotiations. However when the aggressor is using the internet, the internet service provider has no incentive to reveal the user who is allegedly causing the harm and therefore the victim CANNOT contact the alleged aggressor. The alleged victim is FORCED TO FILE AN ACTION breaking down the necessary ability of parties to negotiate prior to court action.
2) Providers of internet service have no incentive to act ethically. In fact, not acting ethically may actually be more profitable for these companies because it requires less oversight, moderating, personnel and creates more controversy generating more web traffic and profits for the provider.
3) The requirement for all action desired against a tortuitous user of internet services to a formal court action will add COST and TIME and will SAP THE RESOURCES OF OUR COURT SYSTEM. Essentially, all arguments against two parties which are insulated by a provider of internet services will be forced to be argued in court.
4) The time required to file an action in court every time there is alleged abuse which is shielded by the internet service company will often prevent the necessary changes from occurring in a reasonable amount of time, furthering the damage that may occur.
We are URGING lawmakers to review this law as quickly as possible. While the majority of social networking sites such as Facebook are acting ethically to curb abuse on their sites, Topix does not and the lack of systems in place to moderate the abuse on this website has resulted in irreparable harm and in some cases death as Topix only finally responded after it was too late.
A new law in California, SB1411, makes it a crime to create a fake online profile to harm someone. The San Francisco Chronicle covers the new law HERE. This law addresses the rather understood situation where someone makes up a fake Facebook or MySpace account and harms someone through defamation, harassment or cyber bullying.
However, the fact that nobody has to register with Topix to comment means that Topix can be used to skirt the law. You don't have to 'fake it' with Topix. You can legally hide. This creates two interesting issues:
1) Does this law create an incentive for companies to drop registration altogether. After all, the law basically says that if you don't have to identify yourself anyway, you can harm people online.
2) Since Topix does not require registration, is it possible that judges might interpret the law this way: Anonymous comments are all fake. In other words, either you identify yourself, or you are fake. In this way, all anonymous posts which harm, will be interpreted as fake and will be covered by the law.
We need input and feedback from CA residents and lawmakers on this very important issue.
The Communications Decency Act basically exonerated internet content providers from being held responsible as the publisher or their content. For that reason, comments posted on TOPIX, are not the responsibility of TOPIX. We get hits every day from people frantically asking HOW DO I DELETE A TOPIX POST and answer is sadly that without an ethical decision by Topix to change, the law says, you can't delete a Topix post.
The obvious reason for the original law (which made sense) was that there was little way that internet companies could monitor every single byte of information which flowed through them. People were downloading child porn using AOL back in the day, and sending AOL to jail for that made no sense. Section 230 of the act can be shown at Wikipedia here:
In summary it says:
No 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.
But making sure that AOL wasn't the one held responsible was not intended so that people could download child porn as long as they were not actually the internet service provider. The government quickly realized that they needed to be able to monitor the internet (which itself might be considered an invasion of privacy and analagous to wiretapping) but that the safety of the public outweighed the rights of people to freely 'express themselves' by using the internet to find material which was illegal and harmful. So, law enforcement can monitor alot of the internet, can get warrants when there is probable cause and can find out WHO IS RESPONSIBLE when criminal activity takes place on the internet.
However, the CDA Section 230 which does not hold the service providers responsible for tortuous free speech on the internet, was not meant to give people who want to express opinions of hate, racism, bullying or defamation an annonymous platform to do so. If someone posts a message on a billboard which destroys the reputation of another person or causes their child to try to slit her wrists, shouldn't we at least have basic laws which allow us to KNOW WHO SAID IT? Yes, we need to freely gripe about the government, or bad corporations, or our experiences with lemon car dealers. But when our free expression takes a permanent position on the internet, causing continued harm and damage, why do our laws need to insulate service providers from at least letting us deal with the poster. Furthermore, the law creates a protective layer between content providers and the computer service which seems to have no legal benefit. While technically, like the Lesher of Texas you could sue and try to obtain a subpoena for the identity of the poster, the cost and time and extra media exposure involved with lawsuits is so far beyond the means and ability of the average person, that it is nearly impossible from a practical standpoint. If I am an average person working 40 hours a week and supporting a small family and my son is called gay all over TOPIX at the age of 12, do I really want to spend my life savings to sue someone and get a subpoena? And more importantly, do I want to expose my son and my family to the media attention and years of publicity? Legal action is no unrealistic, that either there needs to be a fasttrack solution for people who have been harmed by TOPIX or there needs to be some sort of ethical stance taken by TOPIX which has been taken by virtually every other internet company, which draws the line on what they will allow blogs to be and to do.
Beyond the law, there are also basic ethics to consider. While a certain news station may know that someone had an affair, that a child was born out of wedlock, that a 15 year old cheated on her boyfriend, that a 12 year old boy admitted to being gay or that a respected member of the community was arrested for disturbing the peace when he was 19 years old, they have certain standards of common decency that prevent them from publishing the information. People would be appalled if a local newspaper published one of these stories, yet TOPIX is protecting private citizens who do it unscrupulously.
The counter argument to all of this is that people should be able to post their opinions on things like government corruption, laws and public officials (not to mention rogue corporations). I will be examining the laws further over the next few months but welcome your input as to how the law might be ammended to insure that internet content providers cannot stand behind the law to host platforms for abuse the way that TOPIX does. Here is a comparison for legal minds to consider: Is it legal for me to put a sign up on a public bulletin board (lets say at the library or at Starbucks) which says that my neighbor is having an affair with someone? Suppose that the library or Starbucks says that they wont take it down because people can post what they want, yet nobody can find out who wrote it. What law would apply here and does my neighbor have a tort against Starbucks (or the library)?
However, changing the law is for the purpose of insuring that others like TOPIX do not begin doing what they do. For the most part, corporations do have boards of ethics and therefore, once they understand TOPIX, they will leave it. But there are always going to be people who do not care about ethics and just want money, and TOPIX is a money maker right now and they are making money for companies who want to collect the income but don´t want any associated responsibility.
While Cyberbullying and online defamation are a huge issue right now, the majority of web sites will moderate abusive posts and almost without exception, posts of all kind are taken down over time. While there needs to be more and increasing ways that site moderation can curb the problem, Topix stands apart from these by not taking any sort of organizational ethical stand against abuse on its forums. It is true that Topix will occasionally take something down if it is really obvious (though its surprising how bad it must be for this to happen) as well as if something is going to create negative media attention for them. But these are isolated cases and the question will always remain, how Topix will decide if statements made about people which Topix can't evaluate (ie - someone had an affair, or was arrested in some far away place or slept with someone) are true or not. If they can't even moderate their volume of forums, how on earth can they evaluate the actual posts? Well, they can't.
So, without any sort of ethical action by Topix, and the opportunity for other companies to come in and do just what Topix does (without even having to aggregate news!) what changes in the LAW might address this problem. I want to first say that it is SAD that we even need a law because it seems so obvious that any company who is in the media business would be willing to exist on such an unethical platform, but we guess that the money is more important to TOPIX than anything else.
Okay, so lets first remind ourselves, as if we need to hear it again and again, that the constitution protects free speech. The courts broadly interpret this, even going so far as to say that media companies don't really HAVE to tell the truth. They just should do it, if they want to be respected. Media companies have gotten into trouble before when they have erroneously reported things and ended up having to post retractions and hurt their reliability.
Laws do exist though that allow one to be sued if their free speech causes measurable monetary or physical harm to another. There have been successful defamation lawsuits, but they are outrageously expensive, taken years to complete and almost always are covered by media. They have to prove countable monetary damage and many people who are defamed just aren't worth that much money. Juries do not award much for pain and suffering, other than in the case of death or physical injury, and so even winning might not yield alot of money.
For this reason, the average person has neither the means, nor the desire for public attention to successfully sue for defamation. The number of people who think they can go just get their lawyer to send a 20 page packet to the court and get this done is staggering compared with the number of people who successfully walk away with 10 million dollar settlements.
So, how do we bridge the gap for the average American who is attacked, abused, defamed or bullied on a website like Topix, for whom a lawsuit is just not practical.
IDEA ONE - The Swiss system (see below). In this system, a person who is named on the internet has certain rights to know who wrote their name. There are hardships assembling laws this way because the US prides itself on freedom to speak out about government corruption and other public figures. Imagine if Bernie Madoff or Michael Jackson had the right to know who wrote about them online? A way around this is to determine if the person is a public figure, which the laws do tend to define in black and white ways. In this case, a non-public person, has rights to know what has been said about them. Does this inhibit free speech? Not really. It just says that if you chose to WRITE IT PUBLICLY, then you will have to be responsible for it.
IDEA TWO - Create a distinctive treatment for non-public information. Public information is court information, arrest information, events that occurred in public and so on. Sleeping with someone does not occur in public, nor might someone's sexuality or their love of Lucy reruns. What we do next, is unsure, but clearly dividing this line first can help to determine what needs protection and what should be moderatable.
IDEA THREE - Hold web companies responsible for actionable content on their sites if they refuse to respond to complaints about it. Right now, Topix is not responsible for what is on their site because of the Communications Decency Act as described further on this page. The best one can do is sue another and try to get a subpoena for IP addresses. But what if Topix had the chance to be free from responsibility until they are notified. Once notified, they have a certain period of time to pass along WHO WAS RESPONSIBLE. If they don't then they themselves become responsible after a given period. This allows for the reasonable assumption that some abusive information will get posted on ALL websites and that they need a chance to take action. It is really similar to the SPAM laws or the DO NOT CALL LAWS which say, that you have a right to request that it stop and the companies have to respond to that request and if they don't they become liable.
The issue has come up before in the case of the Seigenthaler incident where someone created a fake Wikipedia reference to an American Journalism having been a suspect in the Kennedy Assassination. The court held that Wikipedia was not responsible. A link to an outline of what happened can be found (on Wikipedia of course) here:
The subject was studied by Ken S. Myers at Harvard Law School and written up here:
In the end of the article, Myers talks about Wikipedia desiring to be 'the best the internet has to offer' because of its desires to be accurate as well as open. And in fact, every case of a lawsuit (won or lost) against an internet provider or company for the types of harm that Topix continues to cause, has resulted in that web company taking steps to move further towards avoiding the same recurring problems. If Wikipedia is the best that the internet has to offer, than TOPIX is the worst that the internet has to offer. Unlike every single internet company who has ever been accused of facilitating defamation, bullying, hate, racism, anti-semitism and crime, TOPIX response is to ignore the problem and the complaints and to just keep raking in money until they are surved a subpoena. And to this date, only the well funded attorney Mark Lesher has been able to do that.
Topix simply doesn't appear to care.
We need to decide as a society if our freedom to speak freely must extend to posting our free thoughts on the internet and having google pick them up, even when those statements are false or harmful or both. You have the right to think what you want, draw ugly pictures of people that you know and say about them whatever you would like to but why must the law protect a company which hides people who chose to put that material on the internet specifically so that hundreds of people will find it.
So, if children kill themselves because of something posted on Topix or someone loses their career as a teacher or someone is ousted from a community over a fake TOPIX post, is it all okay because we allowed people to have their free speech publicized on a TOPIX forum?
The most notable example of laws which have allowed citizens of a country to have their names removed from blog websites comes from Switzerland. In Switzerland, you have rights to ask that your name be removed from a website. Swiss Civil Code protects personality, including the rights of life, limb, body, health, reputation, privacy, and the right to personal liberty. The provisions of the Civil Code about the protection of personality (Articles 27 to 29 CC) are complemented by the Federal Penal Code (PC)  and the individual liberties mentioned in the Federal Constitution (FC)  or in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) . The meaning of personality in the Swiss Civil Code is very broad and includes all rights which are inseparably connected with every person . It is worthwhile noting that protection of personality is not only available to physical persons but also to legal entities . The relevant provisions in the Swiss Civil Code can be divided in legal safeguards of personality against oneself (called internal protection of personality) and against others (called external protection of personality) .
Contributors to this site have contacted several high powered attorneys who have a nation presence. While some feel that there is potential to sue TOPIX, most look at the Texas case where a couple was absolutely destroyed on TOPIX and since he himself is a lawyer, he was able to use his clear cut case of defamation and his legal abilities only to get TOPIX to reveal the IP addresses of posters. At this point I do not think that suing TOPIX for defamation will generate success in most, though if TOPIX is not soon stopped, some child is going to commit suicide over a TOPIX post and then maybe they will listen. Juries tend to be very supportive of grieving parents. We don't want it to get to that point though before TOPIX is stopped. I realize that it is generally the reaction of most who have been wronged to look for a lawyer, but I am telling you from experience that the law is not really on our side as much as we would like it to be. TOPIX is harboring criminals because of new laws that were created that did not count on companies like TOPIX existing without self imposed ethical boundaries. And like the Leshers in Texas, the most that even the best legal team might be able to bring you is getting them to reveal an IP address, a virtually costless expenditure on Topix behalf.
Because something is against the law does not mean that we all have the means to insure that the law is followed. When it comes to the internet and defamation, one would have to have substantial proof (and how do you prove that an affair didn't happen or that a child really doesn't have homosexual feelings or that someone did or did not commit a crime that they were arrested for if there was no trial?), they would have to prove monetary damages and have lots and lots of money to be able to afford a lawyer who could address the defamation. What local person has the money and resources and time and proof for that? Yet if you want to force TOPIX to remove something, you will have to go up against their legal team to do so and remember, they are in the internet business and you are not. What private person can do that? So, first and foremost understand that even if you are 100% right, you have a very slim chance of forcing TOPIX to remove anything. Topix CEO Chris Tolles has already said that TOPIX doesn't censor (other than profanity, which is censored automatically). They will cooperate with law enforcement (since they don't have much choice) if for example someone threatens to kidnap a child on Topix. They claim to review and remove inappropriate posts but the reality is that not only do they not always pull down posts which are defamatory, destructive, hateful or racist but they can't even handle the overflow of requests any more. One former employee finally realized how unethical this company actually is and left. Their story is here.
Topix stands behind the First Amendment which guarantees among other things the right that we all have to freely express ourselves in speech. The argument is that the internet is just another place where free speech exists and they are simply hosting a place for people to speak their minds. Tolles when interviewed spoke of how the freedom to post anonymously has made TOPIX so popular and of course Tolles is right. But just because something has become popular does not make it right or good and this fuzzy logic continues to suppress the consciences of people who work at TOPIX such as director of marketing, Amy Dalton. From PC World to Macy's, Amy has now graduated to the company which has single handedly destroyed the school lives of middle schoolers nationwide. Nice going Amy.
If we look at the history of Free Speech in modern America, clearly people have spoken up and spoken out and changed things for the better or the worse, but at least they have had the freedom to be heard. Yet when free speech becomes anonymous, it takes on an inherently darker side because the person no longer has to feel responsible for their speech. One of the highlights of the Ku Klux Klan was that its members hid behind a hood. So, while you do have the right to say that you hate people of another color or who do not follow the same guru as you, when you can do so behind a cloaked hood you are not just absolved of taking the rap for your comments, you can even do things that you don't want other people to know you were behind. Everyone of us behaves differently when we know that others are not looking or will never know, and given how broad an ethical range we find in modern internet users, the opportunity for unbridled abuse is virtually guaranteed. The constitution does guarantee free speech but it does not guarantee anonymity. The freedom part is critical, however EXPRESSION means that it comes from you. I could claim that bashing in windows on cars is a form of emotional release for me and this is how I express myself. So, if I leave my business card after having smashed, I will take responsibility for my free expression. If I do so in a dark parking lot at night, then my free expression has become a crime.
Prior to the internet, anonymous free speech often took the form of graffiti, which was not illegal because of what it said often but because it destroyed property. So, the law is on TOPIX side, and once again neither you nor I have the legal funding to fight them. However graffiti which was not removed for whatever reason (ie - spray painted on a highway overpass and nobody wanted to spend the money to take it off) for legal reasons was often removed because people knew it was wrong. Expressions of hate, defamation or hurt are generally taken off graffiti walls by good people who believe that society is not better off having someone's personal opinion printed for all to see. But since Topix controls the graffiti walls, we as the public can't take it down. Topix wants it there so you will feel free to visit, read, post and ultimately to view their advertisements.
There is simply no reason as a society where we have to accept that free speech must be anonymous. The only way that I see for us to take down the anonymous graffiti wall hosted by TOPIX is to inform you so that as a society we can begin seeing TOPIX for what it really is in hopes that they will recognize how profit and media power have jaded their ethical basis.
Internet laws should mimic the spirit of other law and no law would be created which would basically outlaw certain actions, but protect those actions if you happen to hide behind a big media company. If you write nasty things on a wall for everyone to see, you are responsible. If you say something defamatory on TV or the radio, you are responsible. If you create a website which defames someone else or breaks a law, you are responsible. Yet if you do any of these things on TOPIX, neither you nor TOPIX is responsible in practice, because the legal work that you would have to go through to hold someone responsible is unreasonably difficult.
We need to re-examine the laws and get this loophole changed before more lives are ruined and more companies profiteer off hosting anonymous speech that is destructive and damaging. The Communication Decency Act was designed to protect internet companies who were being used to commit crimes. For instance, if someone sent an email that threatened someone else, the recipient could take the email to the police and the police could take action against the SENDER. The police would not contact Verizon or AOL or GMAIL and bring them in for questioning in connection with the threat. In the case of Topix, the law is shielding abusers and forcing those who are harmed by Topix to file civil actions (lawsuits), an untenable solution for the average person.