The World Wide Web of Potential Liability

The unique and sometimes unexpected publication risks that exist as a result of operating a website were evident in Michigan’s first defamation case where publication via the internet presented a legal issue. The case was decided recently in the Michigan Court of Appeals.

A business law professor at Oakland University posted a paper, written by a group of students in one of his classes, to serve as an example for other students. The school paper had been written for an assignment by the professor to analyze a business experience from an ethical perspective. After the professor posted the paper, search engine Google picked up the paper, cataloged it and produced it in results for searches of the words “Ben-Tech.”

Ben-Tech Industrial Automation is a company that designs and markets automation systems for industrial clients. It was not happy with the paper, which contained allegations by one of the students, a former employee of Ben-Tech, that Ben-Tech had engaged in activities that would be unethical if not illegal. Ben-Tech and several of its employees who had been named in the paper sued the professor, the university and the student/former employee.

The trial court had granted a motion to dismiss the case in favor of the defendants. The Michigan Court of Appeals reversed and gave new life to the plaintiffs’ claims.

One issue in the case was whether a mere allegation of publication on the internet, without alleging that any specific person had seen the publication, was sufficient to survive a motion to dismiss the case. The trial judge decided that “…the plaintiffs have not identified any individual to whom the defamation was published. The plaintiffs may not allege defamation in general and fill in the blanks through discovery.”

An essential element that must be proven by a plaintiff in a defamation case is that the allegedly false and defamatory statement was published to others. The defense was arguing that if the plaintiff didn’t identify specific individuals who had seen the posting, the plaintiff could not establish that it had actually been “published.”

The Michigan Court of Appeals disagreed and wrote: “Although no Michigan case has addressed internet publication in the defamation context, implicit in several Michigan cases is that a defamation complaint need not identify specific individuals/readers to whom the allegedly defamatory statements were published where a specified mass media source is the vehicle of publication.” The appeals court noted that the complaint did allege that the paper had been published on the internet “to the general public on a worldwide basis.”

The court also suggested that it was unfair to conclude that the plaintiff had failed to identify a specific individual who had seen the paper on the internet, given that discovery had still been open when the case was dismissed. Discovery would have given the plaintiffs the chance to gain access to the hit log of the website, to see just who had seen the paper on the internet.

Other significant issues exist in the case, including a defense of governmental immunity, since the professor was employed by a state university, but the appellate court felt those issues were worthy of further exploration and perhaps trial.

We take note of the case because we suspect neither the university nor the professor ever expected a paper that was posted for students in an education environment would make it into worldwide distribution (via search engines) and create potential or actual liabilities. Even if the defense ultimately wins this case, it’s clear the university and the professor have incurred significant defense costs.

The internet cannot be underestimated as a tool, nor can we underestimate its potential to generate liability.