parrhesia.com

Matt Homann suggests “Blogging Insurance“, whereby some benevolent organization - such as big law firms, or blog software firms, or Google ,(or Santa Claus?) will pay for insurance, meant to fund the legal defense (or indemnification?) where bloggers are sued.

Apparently the genesis of this discussion (other commentators have proposed a “Blogger Legal Defense Society“) came when a blogger posted first an audio clip, then a transcript, of the episode of Jeopardy where the record-winning contestant finally lost. Sony TV sent him cease-and-desist letters, and the blogger took down the content because he was concerned about his ability to enter into a war-of-attrition lawsuit against Sony.

I don’t imagine that the people who are talking about “blog insurance” or “blogger legal defense” really intend to exclude Internet authors or publishers who aren’t using blog software, or who aren’t creating traditional frequently-updated informal-tone websites. At least I hope they don’t intend that. More reasonably, I expect that what they’re proposing is some sort of general protection for little guys who are threatened by big evil bullies. That’s a nice sentiment, and hopefully people are, and will continue to be, sympathetic to underdogs.

There are two problems with the approaches discussed, however. The first is known to economists as “moral hazard” - the tendency of people to alter their behavior when they know another party is bearing the risk associated with their behavior. The second, related problem involves distinguishing between defensible and indefensible claims.

It’s not clear to me that it makes any sense to create an environment where we’re effectively saying “Write anything you want - you don’t need to be worried about accuracy, some nice people will pay for your attorney if you get sued.” It’s especially ironic to adopt that posture with respect to (stereotypically) individuals, but to expect others (stereotypically “corporations”) to scrupulously comply with laws regarding privacy, fair information practices, and accurate credit reporting.

I think it’s even weirder to imagine that perhaps the AmLaw 200 - the firms who make their money representing, typically, the Fortune 500 - will somehow pony up cash to pay for insurance to cover the defense costs for the defendants who are creating the problems that AmLaw 200 are hired to solve.

Ok, I’ll admit that it actually makes sense, in a perverse way, but I don’t think that’s what the original commenator intended. Going back and reading his post again, it’s clear that it’s not - his message has plenty of qualifiers discussing frivolous litigation and in-the-right bloggers - but not a defense fund, or an insurance fund, for everyone who manages to piss someone else off, whether they deserved it or not.

Ultimately, I think the EFF already does a pretty good job taking care of this - they provide active assistance in cases they find particularly important or egregious, and maintain a “cooperating attorneys” mailing list to help find volunteer or low-cost attorneys for cases where EFF isn’t going to intervene directly.

I don’t mean to say that there’s no problem here, or that since EFF exists nobody needs to care about free speech, but I think it makes a lot more sense for individual defendants to continue to seek help as individuals based on the righteousness of their individual circumstances, rather than lump true underdogs-in-need together with people who deliberately seek drama and excitement and trouble, and won’t be satisfied until they find it.