Daniel Canon

Daniel Canon, who’s representing Jake Payne in Payne’s suit against Jake Payne Watch, has become the go-to attorney in Louisville cases that have an Internet component.

But Canon, who practices at Clay Frederick Adams PLC, doesn’t see the Internet as a practice area per se. Rather, he sees the Internet as a communication platform that will become  increasingly important in all areas of law.

Just because attorneys are dealing with communication that happens to be on the Internet doesn’t change the fact that it’s a civil rights issue or a free speech issue or a intellectual rights issue, Canon said:

Copyright attorneys will still practice copyright law. Civil rights attorneys will still practice civil rights law. But (attorneys) are having to adapt to the different ways people are communicating. People are using Twitter and Facebook, and those communications are going to become a part of legal issues. It doesn’t matter what practice area you’re in, these are widely used forms of communication. People are going to communicate, and those communications are going to become part and parcel of any defense, or of any case you’re trying to prove.

Payne, who blogs at Page One Kentucky/The ‘Ville Voice, filed suit last week in Jefferson Circuit Court against the anonymous blogger or bloggers who created Jake Payne Watch, a site that Payne alleges contains defamatory comments. He and Canon are asking Judge Barry Willett to order the Jake Payne Watch creator(s) to be revealed.

Canon declined to discuss the case in detail.

Insider Louisville – You are if not the only attorney in Louisville, one of a handful who are tackling Internet-related issues such as the Yoder case and now, the Jake Payne Watch case. (Editor’s note: Canon defended Nina Yoder, who was expelled from the University of Louisville’s school of nursing after posting unfavorable comments about the coursework on her blog. Yoder since has been reinstated and graduated.) How did you get into this terra incognito area of the law?

Dan Canon: Mostly by accident. I have accounts on most of the major social media sites, and that has helped me stay connected with developments in the law as it relates to the internet. There has been a fairly healthy contingency of lawyers on Twitter for a couple of years now, and more attorneys are starting to see the value of social media to their practice overall. Several of the cases I’ve been involved in have come to me from Twitter, etcetera. More importantly, social media has allowed me to stay on top of what other lawyers in the country (and in the world) are doing. That said, I don’t think I have any specialized knowledge that makes me an “Internet law” expert. I’m really just a civil rights lawyer who spends too much time on the computer.

How technically adept will attorneys have to be?

Generally speaking, it’s going to be necessary for lawyers to at least be able to identify what the kind of different social media are and how they happen: Tweets, Facebook posts or what have you. I don’t think it’s necessarily important for us lawyers to be tech geniuses (at least I hope not). It is important to know and understand the terminology, which is changing all the time. Lawyers who don’t know what an IP address is, or what Twitter is are going to be at a disadvantage regardless of practice area.

What are the opportunities here, as you see them? Commercial? Civil Rights? Copyright law? Do you see individual attorneys and firms specializing in protecting companies, for example? The Internet is rife with bloggers and sites that target insurers such as Humana, as well as retailers such as WalMart.

I guess it depends on why the client needs “protecting.” I don’t know that I have personally seen a spike in attorneys protecting their clients any more than usual; it just happens in different ways now. What I am seeing is that ISPs and websites that collect private information from users (e.g., Google, Twitter, Yahoo) are mounting a pretty stiff resistance to producing that information to litigants, and are putting a lot of resources into that resistance.

How excited are judges going to be about delving into this?

I don’t think it’s going to be all that different for judges as long as attorneys present the law in a coherent package. At the core of most of these Internet issues are the same legal issues that judges have been dealing with for centuries: defamation, free speech, etc. Judges and attorneys alike have to be able to deal with terra incognito, as you put it, all the time.

Does the First Amendment even apply to the Internet? After all, the actual wording refers to “the press.” There’s no press. And information posted on the Internet is kind of ephemeral. Common Law doesn’t address information on the Internet.

The First Amendment deals with a lot more than freedom of the “press,” regardless of how that term is interpreted. Principally, it deals with free “speech.” Regardless of whether the speech takes place on the Internet, on television, at a funeral, or in the street, the First Amendment offers a degree of protection. There are limits to those protections though, and those limits apply to Internet speech just the same as any other speech. The mere fact that speech happens on the Internet doesn’t put it in any kind of special category for constitutional purposes.

Do you see legislatures taking the lead on crafting Internet law, or the courts?

For “Internet law” as a whole, as with any other area of the law, the legislature as a whole is going to take the lead, and the courts are going to interpret. When it comes to constitutional issues, the courts necessarily play a pivotal role in saying what government action is permissible.

Obviously, Reno v. ACLU ruled the Internet to be a “free speech zone.” Before the Internet, there were so many de facto limits on speech. Newspapers had editors. Publishers didn’t want to run the risk of losing in court over unsourced allegations, so such content never saw the light of day. Now, I can create a WordPress site in a few minutes, create a domain name and target anyone and print anything. So, do you ultimately hold platforms such as WordPress and DreamHost accountable for what people use those tools to do (if it’s illegal?)

Only if they are complicit in producing or publishing the illegal material. The difference, of course, is exactly what you describe – anyone can, and does, publish just about anything now, and WordPress, Google, etc. can’t realistically be expected to monitor everything that all their users post. Once that material is brought to the host’s attention, however, they have an obligation to act appropriately.

What about sites such as Jake Payne Watch that are hosted in another country? In this case, the United Arab Emirates. Do you see any evidence that U.S. law has any jurisdiction?

Outside of my expertise. Best I can tell you is that if an injury occurs in the U.S., it’s pretty clear that American courts have the ability to provide relief to the injured party.

In the Cohen case you cited to the Courier-Journal, the New York court rejected the blogger’s claim that the blogs were a “modern day forum for conveying personal opinions, including invective and ranting” and should not be treated as factual assertions. One could argue that Jake uses inflammatory language. In one post I quoted recently, he talked about a state senate candidate’s “lying ass.” How are we supposed to know which speech is protected?

The courts tell us. And after about 50 years or so of modern First Amendment jurisprudence, we have some pretty clear guidance as to what constitutes protected speech. Still, the courts are resolving new issues as they arise, as seen in Snyder v. Phelps . (Editor’s note: In Snyder V. Phelps, the Supreme Court ruled the Westboro Church protests outside military funerals are protected speech.) Simply because it’s on the Internet doesn’t mean it’s protected speech. The big thing I want to stress here is, definitely there is a wide range of speech that is protected. But not all that stuff’s is protected whether in the street, in the paper or on the Internet. You can’t treat the Internet like the Wild West; say anything that ‘s not true, false or malicious

What I think you’re arguing isn’t that the anonymous blogger’s speech isn’t protected, but targets of negative (and possibly defamatory) posts have the right to know who’s attacking them? Right? Jake has never hidden behind a “nom d’Internet” or any kind of anonymity.

The medium you use doesn’t matter. (Speech) is either protected or it’s not protected.

You print an article that is defamation, the target of that defamation has right to sue and have their day in court. On-line information might be different in some ways. But the meat and potatoes of the way you litigate these cases is exactly the same. If a newspaper runs a story that’s out and out defamatory, the target of that defamation is going to ask a judge to reveal the source of that article. A judge can order the newspaper to reveal the source.

I would argue that any yahoo can put anything on the Internet at any time. There’s no buffer zone of editors and publishers. Without that buffer zone, it becomes an easier call. If someone is publishing material where the sole purpose is to defame someone or to deprive them of their livelihood, it’s not protected speech.

Internet (sites) like Google, Yahoo and Twitter have an interest in protecting the anonymity of users, but they also have an obligation to the public at large to not allow blatant defamation to be published on their services without any kind of accountability  whatsoever.