Readers will recall the case of Donna Hughes, the University of Rhode Island women's studies professor who was asked to remove two articles from her university web page after they drew a libel complaint from a London law firm. The articles in question had both been published elsewhere; Hughes was offering copies of them on her URI-sponsored site in order to make them more accessible than they otherwise would be. Last fall, Hughes agreed to remove the pieces that drew the legal threat while URI administrators evaluated the situation. When they still had not completed their evaluation six months later, the ACLU stepped in in Hughes' defense. Debate about the URI situation was heated here at Critical Mass. You can read my posts and readers' comments here, here, and here.

URI's president, Robert Carothers, has now issued a policy statement designed to address the questions Hughes' case has raised about liability and university-based web publications. It's lengthy, but I'm reprinting it in full so that readers can trace the full train of URI's thinking. While Hughes continues to await a determination on her case, readers are welcome to peruse and comment on the policy statement that has arisen out of it.

MEMORANDUM

Date: June 11, 2004

To: Frank Annunziato
Executive Director, URI AAUP

Faye Bartels
Chair, URI Faculty Senate

From: Robert L. Carothers
President

Subject: Policy on Personal Web Pages

Recently, the question has been raised regarding the Universityís policy on personal web pages and the consequences which may flow from the use or abuse of such pages. As defined in the University Manual, personal Web pages are ìWeb pages developed by students, faculty and staff and contain non-official information about the authors, including their backgrounds, interests and/or opinionsî (4.1). Section 4.2 continues:

ìResponsibilities: A personal Web page is the responsibility of its author rather than of the University. It can be hosted on any computer regardless of the machineís affiliation with the University. Every personal Web page stored on a University-owned computer or computer that depends upon University-owned communications for access must include the following disclaimer on its top-level Web pages: This personal Web page is not an official University of Rhode Island Web page. See disclaimer.

What this language means is that the University is not the publisher of these personal Web pages. Rather, it is a distributor of the pages and does not assume any responsibility for its contents.

All members of the University community are guaranteed the right of free speech and of academic freedom, both on constitutional grounds and on the basis of our policies and our collective bargaining agreements. For faculty members, the AAUP has been the champion of academic freedom, and the Board/University and the URI AAUP incorporated the language on this matter from the ì1940 Statement of Principles on Academic Freedom and Tenureî into both policy and the collective bargain agreement between the parties. This freedom is a cornerstone of our values as an institution of higher learning. That freedom is not without restraints, however, as the final paragraph of Section 7.2 of our contract makes clear:

ìThe college or university teacher is a citizen, a member of a learned profession, and an officer of an educational institution. When he/she speaks or writes as a citizen, he/she should be free from institutional censorship or discipline, but his/her special position in the community impose special obligations. As a person of learning and an educational officer, he/she should remember that the public may judge his/her profession and his/her institution by his/her utterances. Hence he/she should be at all times accurate, should exercise appropriate restraint, show respect for the opinions of others, and should make every effort to indicate that he/she is not an institutional spokesperson.î

So it seems reasonably clear to me that consistent with our policies that a student, faculty or staff member may place on a personal Web page whatever content he or she wishes, provided that he/she makes it clear that the Web-page is not a publication of the University and that the University accepts no responsibility for that content. Both administrators and faculty members are also bound by the collective bargaining agreement and AAUP Principles to exercise all due diligence to ensure that the content of such a personal Web page is accurate, reflects restraint , and shows respect for the opinions of others.

This is not, however, the end of it. There is still the law, an ever-evolving set of rules and regulations for our conduct as citizens. The advent of the Web has raised a myriad of questions, since it is a form both of institutional publishing and of self-publishing that goes out instantly, world-wide. The most pressing problem to date has been the protection of intellectual propertiesópatents, copyrights, licenses and suchóand the most aggressive parties seeking new laws to regulate the activities of others are those in the music and entertainment industries. College campuses have been among the places most active in infringement of copyrights, and the challenge for colleges and universities has been to separate themselves from the liability that attaches to the illegal acts of members of the community, using the universitiesí computing systems. In the past few years, Congress recognized this problem and passed the Digital Millennium Copyright Act to protect the interests of both the holders of copyrights and the institutions wherein freelance infringements might occur.

There are no such statutory protections related to the common law torts of slander, libel or defamation distributed via the Web or by any other media. The textbook explanation of the responsibility of a distributor and publisher of defamatory matter can be found in Sections 578 and 581 of the Restatement, Torts2d.

A publisher is the originator of the libel, and one who repeats or otherwise republishes defamatory matter is subject to liability as if he or she had originally published it. A distributor, on the other hand, is one who only delivers or transmits defamatory matter published by a third person. However, a distributor can also be subject to liability if, but only if, he or she knows or has reason to know of its defamatory character. (Italics added)

The official comments to the text further provide the following explanation:

Each time that a libelous matter is communicated by a new person, a new publication has occurred which is a separate basis of tort liability.

Thus one who reprints and sells a libel already published by another becomes himself a publisher and is subject to liability to the same extent as if he had originally published it.

Subject to the [knowledge/notice] limitation, stated in ß 581, the same is true of one who merely circulates, distributes or hands on a libel already so published.

It is no defense that the second publisher names the author or original publisher of the libel.

Thus a newspaper is subject to liability if it republishes a defamatory statement, although it names the author and another newspaper in which the statement first appeared.

And remember that there is no First Amendment protection of libel or slander other than the conditional privilege applicable to public figures and officials. Even in such ìpublic figuresî cases, an injured plaintiff can prevail if he/she can establish the requisite malice. Of course the case law in this country, based on the First Amendment, is largely irrelevant if the claim is brought in a foreign court. Some of these foreign courts have asserted jurisdiction in libel claims based on where the injury is alleged to have occurred. Since a libelous statement on the Web is arguably published world-wide, plaintiffs can do what is called ìvenue shoppingî for the court most sympathetic to their claims.

The facts in the case we have been discussing recently might be described as follows: a faculty member at URI publishes on his/her personal website article(s) in a highly controversial area of scholarship. (If the matter ended there, we would not be having this discussion since the controversial nature of an issue plays no role in the equation.) However, persons living outside of America claim that the publication is mere polemics and contains libelous statements which have injured them personally. The professor at URI believes that he/she has an absolute right to publish his/her articles containing these statements on his/her personal Web site, which he/she asserts are not libelous. The persons living in another country--on the face of it researchers at a foreign university (or universities)--claim that the existence of the article(s) and statements on the URI faculty memberís personal Web siteóin their view published by the University of Rhode Island--libel them and constitute an infringement on their academic freedom as well. Their attorney gives notice to the University of their claims and states that their clients are prepared to file suit in a foreign court to get a judgment against the University. As indicated in the discussion above, once we are given such notice, our continuing distribution of material which may later be determined defamatory can expose URI to the same liability as the original publisher, even under American law. The fact that these issues may be determined in some foreign jurisdiction applying foreign law can only increase that exposure.

So what should be our policy? On the core issue of academic freedom to publish, consistent with the language of the 1940 AAUP Principles, we are completely clear. URI must not and will not prevent any member of this community from writing and publishing their scholarship and opinions. But are we, as an institution, to become the publisher of those writings? Our Manual policy intends to erect a firewall between what is published on personal web sites and the University itself. Were these publications found on official University Web sites, the University would be required to exercise due care to prevent libelous statements. But it is neither desirable nor practical, from a policy viewpoint, to expect the University to do so on personal Web sites. Were the Manualís firewall able to stand in the face of legal challenges, our worries as an institution would be largely over. That would make the student, faculty member or staff individually responsible for the content of the personal Web site, as our Manual policy seeks to do. But it is unlikely that the law will let us escape so easily.

Let us think of it generally in this way: as the AAUP language affirms, faculty are ìofficers of an educational institutionî and agents of the University when they act within the scope of their employment. Publishing in refereed journals, for example, is an action for which they are employed and therefore within the scope of their employment. Publishing their opinion in the local newspaper is protected from any interference or reprisal from the University, but when a faculty member does so, he/she is not acting as an agent of the University but as an individual for whose actions the University takes no responsibility. Publishing on a University-based personal Web page is a protected activity, but it may or may not be an act within the scope of a faculty memberís employment, depending on the facts determined on a case-by-case basis.

My conclusion regarding this very interesting question is, therefore, that the publication of writings and opinions of individual employees on personal Web pages as defined and described in the University Manual are protected from interference by the University. When employees are writing and publishing on these individual Web pages, they are generally not agents of the University, and their actions lie outside the scope of their employment with the University.

When the University is given legal notice of an alleged libel, however, the Universityís General Counsel will access the publication in question to make a prima facie determination as to whether it is reasonable to believe that a libel has occurred. If in his/her best judgment there is no basis for the claim, we will so advise the complainant and maintain the publication. If there is a prima facie case for libel apparent, we will so advise the employee and attempt to reach a resolution that is acceptable to both the employee and the institution. If that fails, the Universityís General Counsel will make a recommendation to the President.

In unusual or exceptional cases, the President may also convene a panel to consist of the employee, the Universityís General Counsel, and a representative from the AAUP, the Faculty Senate, and the Office of the Provost. It will be the charge of this panel to review the issues raised and attempt to facilitate an appropriate resolution and response. This panel shall have no authority to respond on behalf of the University or to impose a resolution on the employee. However, the panel shall provide appropriate input to the President that it feels should be taken into consideration in rendering a decision regarding the maintenance of the publication. The decision of the President shall be final.

C: Judge Frank Caprio, Chairman of the Board
Commissioner Jack Warner
Provost Beverly Swan
General Counsel Lou Saccoccio

URI's concerns about liability don't dovetail all that neatly with the scholarly interests cited above, and the lip service paid in the statement to academic freedom and case-by-case evaluation don't inspire confidence that URI is interested in being a defender of its faculty's right--some would say obligation--to attempt to reach a wider public than one can typically reach with peer-reviewed journals published at a snail's pace for tiny audiences of specialists.

URI has said to Donna Hughes that the case against her has no merit--but the school is nonetheless framing a policy more centered on protecting itself from lawsuits (even spurious ones) than on defending the free inquiry and free expression of its faculty. That's both understandable and sad. It remains to be seen whether URI will decide to support Donna Hughes against a potential libel action that it has already said, off the record at least, is groundless. I don't think anyone would argue that URI--or any other university--should have to defend libelous statements made on its servers. The question is what URI will do when material published on its servers is accused of libel. Donna Hughes' case will be a defining one.

It may well be that URI is within its rights to frame a policy about the web pages it hosts in the way it has here. It may also be that those members of URI's faculty who wish to make their scholarship available to the world can do so most effectively via self-purchased commercial webspace. It will be up to the University of Rhode Island to decide whether that is or is not a shamefully self-discrediting outcome of its new policy. That, in turn, will depend on how URI enacts that policy, and on what criteria come into play, behind closed doors, when libel threats are assessed on the case by case basis outlined above.

The problem here, however, is caused by British law.

British publishers have been forced to cave in on this issue for most of the past century, and some rather well known authors have been hurt by it.

The principle is simple: if the persons are still alive, you can't say padoodle about them and get away with itif they're of a mind to litigate, Mainly because there's absolutely no doubt they'd win.

As we go more global with scholarship, this British problem will become more and more of a nuisance.

That being the case, URI is in a real pickle, and I'm not sure it's fair to jump on their case.

Of course, John, while I happen to be all for British withdrawal from the EU, most people don't don't realize that the European Convention on Human Rights is NOT an EU document: it stands on its own, as a seperate treaty many of the parties to which are not even EU members themselves. Therefore, unless it's already been tried and failed, I'd think that because Parliament incorporated the ECHR into UK domestic law, an attorney could easily argue (in the English courts, without having to go to Strasbourg) that it requires a reversal of the burden of proof similar, if not stronger, than that first imposed pursuant by US courts pursuant to the First Amendment in New York Times v. Sullivan.

Maybe I don't understand exactly what your problem with URI is but it seems to me that what they are espousing is eminently justified.

What they are saying is that in the US case the posting of the warning that they will be no responsibility for what the individuals post on the website is sufficient in most cases. That is not necessarily true on an international situation such as the one in question and for Ms Hughes to involve URI in her case with the people supposedly libeled in a UK court without their having any say in the matter is really presumptuous on her part. The lawyers are saying that there is a real chance that URI would be found guilty of libel and since the case is renewed for each individual, the penalties could be severe. It is in their own interests for something they have nothing to do with to withdraw their support in the case of the individual website on the URI server but not withdraw their support in the case of the item being published on the official website on the URI server. I think they are fully justified in this case.

To do otherwise is to make them party to something they did not write and do not necessarily support whether they like it or not. Ms Hughes should be in this on her own and not involve her employer in her situation because what she published was not done on their watch.

I don't think the Professor and I would see eye to eye on a lot of things (although we would share an intense disdain for the sex trafficers she often assails). Nevertheless, I jumped on the URI Pres for leaving the Professor in limbo on this, and urged him to act.

I think the policy outlined here is pretty reasonable - that is, assuming it is administered in a relatively fair and unbiased way (not a given in the university setting, but usually tilted toward, rather than against, lefties like the Professor).

It might to be bit unreasonable to expect a small taxpayor supported university to trailblaze this particular sticky-wicket of international law. On that basis, I would grant them some credit for a tolerable compromise.

"The lawyers are saying that there is a real chance that URI would be found guilty of libel and since the case is renewed for each individual, the penalties could be severe."

More likely, however, they'd be entirely (excuse the pun) academic. As a hypothetical, let's say neither Hughes nor URI appeared to defend the suit in England, and the English court entered a default judgment in favor of the plaintiffs. Then what? Someone can correct me if I'm wrong, but I know of no jurisdiction in the US that will enforce an English defamation (libel or slander) judgment, because that would allow an end-run around the First Amendment. So the English judgment is uncollectable unless there are assets in England to attach in order to satisfy it, or in some other jurisdiction whose courts are more receptive than are American ones to enforcing English libel judgments.

Dave J, I think I set out a couple of cases supporting your assertion in an earlier thread. There may be an excess of caution on URIs part but being risk averse is not necessarily an unheard of institutional policy and it is not necessaarily unwise.
Ivan

To reiterate:

There is nothing wrong with being risk averse. URI has to be. I say in my post that its new policy is "understandable but sad." I say that not because I have some simplistic notion that it should be the job of URI to drain its resources defending free speech in courts across the globe, but because URI's refusal to do so (which may well be a necessary and wise refusal) nonetheless has a chilling effect on scholarly expression at that school. That's an inevitable consequence of this new policy, and there is no reason to imagine that the implications of URI's decision here will stop at URI. To the extent that other schools follow URI's lead--and unless they have more resourceful lawyers or deeper pockets, the only thing preventing them from doing so is the absence of a faculty member in a situation similar to that of Donna Hughes--they will have sacrificed the principles of free inquiry and expression that ostensibly rationalize their existence as institutions of higher education. Once again, this may be necessary from a CYA standpoint. But it is hardly unreasonable on my part to point out that policies such as this one can substantially alter the climate of academic culture, and not for the good. Yes, URI is in a "pickle." That does not mean that in trying to protect itself from one kind of threat, it does not itself create new ones.

No question that the course of the case to date has been fraught with problems. But frankly, if the official policy is as stated in the memo you quoted, it sounds like a remarkably reasonable one...more liberal than could readily be obtained from most commercial web hosting firms (which generally have fine print amounting to "the first time we hear your name and the word 'lawsuit' in the same breath, we'll cut you off immediately, fork over all your information to the plaintiffs, and then sue you ourselves for exposing us to liability, regardless of the merits of the original claim").

A policy that says essentially "you're free to say whatever you want on a personal page, as long as you include this boilerplate disclaimer saying you're not speaking for us" sounds like a pretty good one. Certainly better than what was apparently in effect when this mess started.