I briefly mentioned this story on Friday in the Weekly Wanderings post and now I want to elaborate on it a little because this lawsuit has huge implications for journalists, bloggers, and anyone who likes to leave anonymous comments.
First off, a little background: Dear Author is a romance review site run by Jane Litte (blogger, lawyer, podcaster, and general all-around bad-ass). Dear Author gets its name for the unique reviewing style of addressing the review to the author instead of just posting a straight up review. It’s a cute gimmick that sets DA apart from other sites. DA is a massive site and I consider it to be one of the more reliable, unbiased romance review sites out there. Along with Smart Bitches, Trash Books and All About Romance, it’s definitely one of my favorite places to find good book recommendations.
Ellora’s Cave is a mostly online-only publisher of erotic romance. The publishing house has been groundbreaking on many fronts, from being among the first to publish digital works (by emailing PDFs to buyers way back in 2000) to publishing a sub-genre most houses were staying far, far away from. Several well known romance authors have published with EC, including Sylvia Day, Belle Andre, Jaci Burton, and Lora Leigh. EC was widely successful until 2010 when sales began to stagnate. It’s interesting that that happened because everyone else was jumping on the epub bandwagon and ebook sales were booming. There are a number of reasons why that might have happened and Jane Litte wrote about many of them in the post that launched the lawsuit.
I suggest you read Jane’s post, The Curious Case of Ellora’s Cave, as well as this interesting piece from independent publisher, Melville House, as well as the continuously updated SBTB post about the lawsuit and some of the social media shenanigans that have happened since the suit was filed.
Besides the fact that a publishing house thought it could get away with not paying all owed royalties, I have two main points I want to discuss.
1. Are bloggers journalists and are they protected by the first amendment?
Ellora’s Cave has filed a defamation suit on a blogger for what is basically a (very well researched) piece of investigative journalism. The journalist, in this case blogger Jane Litte, took a serious look at some controversial practices and followed up on rumors and stories circulating on social media and basically became a whistle-blower. My question is, if The New York Times or Buzzfeed or some other news outlet known for breaking whistle-blowing stories wrote this piece, would they be sued? I’d like to think yes, for fairness sake, but we all know that most things aren’t fair, and that no, while EC might send a cease and desist letter or demand a retraction, it is highly unlikely that a large news outlet would get sued over something like this. It would be a violation of freedom of the press. But this is different because this is a blog and a blogger being sued. While many of us rely on blogs for all sorts of news and information, the courts have been slow to protect bloggers’ rights and recognize them as journalists.
As a blogger, although not one who reports on news (unless Caty shredding yet another roll of toilet paper counts as news), I find this concerning. If Ellora’s Cave wins this suit, what’s to stop someone from suing me because they didn’t like the review I gave them? What if I made an off hand comment about something/someone I didn’t like and they decided to sue? These are obviously far-fetched and very unlikely scenarios, but I think you see my point. Bloggers need to know that they can publish true accounts, however horrible they might be to the ones being reported on, without fear of retribution. Many bloggers already fear negative comments so much they don’t post what they really want to. That’s a separate issue, but any blogger or freelance writer publishing in an online medium needs to know that their right to publish whatever they want (you know, in line with the law and everything) is protected.
2. Does anonymity really guarantee staying anonymous?
The suit filed by Ellora’s Cave demands the names of the authors who commented on the post saying the same thing happened to them. Can they do that? I don’t know; I’m not a lawyer, but something about it seems fishy. I know there are laws in place to protect anonymity in other situations and many journalists (print and television) use anonymous tips and clips while reporting, so I would think (and hope) that that right would be extended to commenters. Bloggers have always dealt with anonymous commenters, mostly encountered as negative posters, and most bloggers retain the rights to delete any comments that are truly offensive. Many sites won’t let you post anonymously, but that isn’t the case here. Dear Author does allow anonymous comments and now EC wants to know who they are, probably so they can seek retribution. Jane has vowed to protect those who commented anonymously, which is good news for those authors. But, again, what does this mean if Ellora’s Cave wins? How far will others go to punish those who are trying to protect themselves? I can’t think of a single good thing that could come of that.
I find this case to be scary because the implications on the blogging world are huge. It may be that this is only a scare tactic to force Jane to remove the post (which is totally not happening – Jane is a lawyer after all!) and the lawsuit won’t actually proceed. A temporary injunction hearing was held last week and the judge requested that DA come back for another hearing with more evidence in their defense. Jane is now seeking testimonies or affidavits from EC authors on whether or not they were paid all that was owed to them. So we shall see what happens next.
What are your thoughts on this? Do you think EC has legal grounds for a defamation suit? How would an EC victory affect the blogging community?