As SF Weekly went to press, Governor Arnold Schwarzenegger was expected to sign California Senate Bill 1411, which would make maliciously impersonating someone on the Internet a misdemeanor crime punishable with up to a year in prison or a fine of $1,000. The bill's supporters tout it as a big step forward in adapting defamation law to the digital age. California's current law on impersonation was written in 1872.
But there's a problem with SB 1411, and it's not the one free-speech advocates — who worry that broad interpretation of the new statute would restrict the First Amendment rights of satirists — have focused on. While the law criminalizes online impersonation with the intent of "harming, intimidating, threatening, or defrauding," it has no provisions requiring that the defamatory material be removed.
In other words, even if trolls are sent to prison for what they have written online, the scurrilous messages themselves remain for all to see. "It does not require the content to come down from the Internet — even if you win the lawsuit, even if the person goes to jail," notes Michael Fertik, CEO of ReputationDefender, the Redwood City–based company that helps clients chase down digital defamers. "The point is, if someone's defaming you on the Internet, it's an eternal, recurring defamation."
Fertik supports the bill, which he calls "a good step in the right direction." But why the curious lack of provisions for striking malicious lies from the online record? State Senator Joe Simitian (D-Palo Alto), who wrote the bill at the behest of a constituent victimized by an impersonator sending fake e-mails, said he "tried to keep this narrow," and that a bill censoring malicious material would have faced even more opposition from the First Amendment camp. On a practical level, he adds, the state of California is ill-equipped to police the Internet in such a manner: "My goal here was to simply make plain that malicious impersonation, as defined in the bill, is a crime, and hopefully that serves as a deterrent so there's nothing to take down."
Simitian notes that the bill does specifically allow for lawsuits seeking injunctions in the civil courts — in other words, victims are authorized to ask a judge to issue an order removing defamatory content. In the digital Wild West, it looks like the targets of impersonators will still have to do quite a bit of fending for themselves.