An interesting case has emerged out of Loveland, Colorado. J.P. Weichel, 40, has been criminally charged for libel for statements that he made on CraigsList under a nineteenth century law. Weichel allegedly made the comments in Craigslist’s “Rants and Raves Section.” Weichel says that he “was just venting.” It is a rare case of such defamation that is made even more rare by the use of a criminal versus civil charge.

The use of criminal libel statutes has faded into history for good reason: such matters are best handled between the affected civil litigants. It is also ripe for abuse: there is a great deal of libel out there and prosecutors tended to pick high profile cases or work for well-connected people. Finally, prosecutors have more important crimes to address from identity theft to drugs.

However, Larimer County District Attorney Larry Abrahamson decided that it was time to resurrect a law from the 1800s.

In December 2007, a woman called the Loveland police about postings about her between November and December 2007. In the postings, she is accused of trading sexual acts for legal services from her attorney. The poster also cited a visit from child services because of an injury to her child.

The police used a search warrant from various sites including Craigslist to identify Weichel, who shares a child with the woman. Weichel told police that he was “just venting.”

The statute uses archaic language: criminalizing speech “tending to blacken the memory of one who is dead” or to “expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.” Criminal libel carries a punishment of up to 18 months in prison.

This is a standard defamation case and a good example why it should not be a criminal matter. Is Abrahamson now going to police the Internet for libel felons?

The case also highlights the protection given to Internet companies like Craigslist from defamation lawsuits. Under a federal law and the ruling in Zeran. The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Kenneth Zeran sued America Online for negligence. On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-shirts.” It was a prank that featured offensive products about the Oklahoma bombing and told interested buyers to call “Ken” at Zeran’s home phone number in Seattle. Zeran notified AOL in a series of telephone calls and letters about the bogus posting. But AOL allegedly refused to take down the material. Then the prankster put more messages on the site from Ken, not only producing more calls but leading an announcer for the Oklahoma radio station KRXO to read the messages and encourages listeners to call Zeran.

The Fourth Circuit held that Section 320 blocked any liability, even if AOL was informed of the falsity and harmfulness of the information. It was a very harsh decision and it is not clear that the federal law was truly intended to protect these companies for any liability under any circumstance for false and harmful postings.

There are now an increasing number of such defamation cases as people leave newspapers for the Internet for their main news source and communication systems. Here, Craigslist virtually invites people to dish the dirt on a section called “Rants and Raves.” It is something that a newspaper would never be allowed to do. The question is whether these companies should bare greater responsibility for such postings or whether we should treat this as a necessary cost in preserving a free and open web.

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