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Jeffrey D. Neuburger

Book publishers can be sued if they publish a book full of libelous statements because, the reasoning goes, a publisher should know what it prints. The publisher reviews the manuscript, edits and proofreads it, and distributes the finished book to retailers. It is involved in every part of the process.

But the Internet has given rise to a new breed of printing company, a hands-off model that doesn’t get involved with the writing process at all. Online print-on-demand companies specialize in printing books exactly as they appear on submission, without any changes. If print-on-demand services don’t exercise any oversight over their books, are they still liable when those books are found to contain defamatory statements?

That was the question in a motion recently decided in Sandler v. Calcagni, a defamation action filed in the federal district court in Maine over a book that was printed and distributed by BookSurge, a print-on-demand service that’s owned by Amazon.com.

Print-on-demand services appear at first blush to be the same as traditional vanity publishers, printing houses where authors can pay to have their work printed. However, the web-based interface of print-on-demand reduces the time and expense involved in getting a book to print and also helps to get the book placed with online retailers. Another key difference is that, while many vanity publishers may insist on an author paying for a set number of copies, many print-on-demand services will only print up as many copies of a book as have been ordered.

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The old days of printing books

Traditionally, book publishers could be held liable for defamatory statements in their books under the theory that they exercised some form of control over the books’ contents. But online print-on-demand companies typically provide printing and distribution services only, and do not perform the traditional editing, fact-checking and marketing functions associated with other publishers. Sandler v. Calcagni appears to be the first case in which someone has argued that a print-on-demand company should face traditional “publisher” liability.

Don’t Save the Cheerleader

The case started with a dispute between two high school cheerleaders over (what else?) a boy. According to the court’s opinion, one of the cheerleaders, Calcagni, and some of her friends harassed Sandler with religious epithets. Eventually, Calcagni was convicted of a hate crime for allegedly spray-painting a swastika near Sandler’s home.

Calcagni’s parents decided to tell their side of the story with a tell-all book about the incident. They printed the book through BookSurge, and purchased several hundred copies, which they distributed to friends, family and local bookstores. Several other parties also purchased copies of the book online.

Not surprisingly, Sandler sued Calcagni, her parents, the freelancer and BookSurge. BookSurge made a motion to dismiss the claims against it, arguing that it should not be held liable as a publisher for purposes of defamation law.

What Makes a Publisher?

So far, I’ve carefully avoided referring to BookSurge as the publisher of the book in question. That’s because “publisher” is a word of art in the law, a term that has a specific legal definition. There are specific legal consequences attached to the categorization of publisher — consequences that BookSurge hoped to avoid. As the court itself noted, confusion can arise in defamation cases because “publisher” has a common business as well as a legal meaning.

Under the common law, whether a participant is deemed to be a publisher for purposes of imposing defamation liability depends on the “extent to which he participates with an author…of the defamatory statement in its publication,” according to the court’s ruling in this case. Actors who are “more actively involved” in the process may be held liable “because they have the opportunity to know the content of the material being published.”

The court effectively viewed the BookSurge service as a giant online copy machine, noting that it had “negligible involvement” with the authors of the book. BookSurge never fact-checked or reviewed the manuscript, and it had no editorial control over the work. Accordingly, the court found that the service did not know, or have reason to know, that the book might be defamatory and thus could not be held liable.

We’ll never know whether the ruling would have survived an appeal. On September 4, the remaining parties filed a notice of settlement with the court, ending the case. So the court’s ruling on BookSurge’s liability will stand for now as persuasive authority for other courts faced with that same issue.

Consequences

Print-on-demand services are an example of how the Internet enables writers to circumvent the gatekeepers of traditional communications channels. By dramatically lowering the cost and greatly increasing the ease of communication, writers who would previously have been blocked from the market can find an easy way to get their works out to the public. Authors no longer have to send copies of their great American novel to hundreds of publishers, praying for an editor to view it favorably. In fact, in this case, the parents first sought to have their book published by traditional publishing houses, which uniformly rejected the manuscript.

The question prior to Sandler v. Calcagni was whether the law would saddle these kinds of services with potential liability that would force them to vet their authors’ works in the same manner as traditional publishers. If print-on-demand services were found not to be liable, they would have less incentive to weed out books that could give rise to legal action, almost certainly allowing more content to make its way into the stream of public discourse — for good or ill, as this case arguably demonstrates.

Of course, there’s an upside and a downside to all things. Freeing print-on-demand services from liability places the entire legal responsibility for content on authors, to the detriment of plaintiffs and defendants alike. Plaintiffs could not hope to recover much without a publisher’s deep pockets, while authors would lose the protection of the publisher’s attorneys and liability carrier. Such liability could bankrupt some authors, and the threat of legal action could cause authors to self-edit.

Outstanding Issues

Will courts in other states follow the Maine court’s decision in Sandler v. Calcagni? That remains to be seen. Defamation liability is controlled by state law, with an overlay of federal law in the form of the First Amendment. Although the broad general principles of defamation law are fairly uniform throughout the U.S., another jurisdiction might take a different view of the liability of print-on-demand services.

Overseas is another matter. It isn’t at all given that courts in foreign countries, where defamation law is often quite different, will follow the same reasoning. The U.S. is unique in that it has the First Amendment as a free speech backstop that encourages the dissemination of information. Even in such familiar common law jurisdictions as the UK, the law is much more favorable to plaintiffs, a fact reflected in the rise of libel tourism. Libel tourism refers to non-UK libel plaintiffs who bring their actions in UK courts in hopes of taking advantage of the favorable legal climate.

One final unresolved question remains: can print-on-demand services claim protection under Section 230 of the Communications Decency Act? Section 230 immunizes an “interactive service provider” from liability for content submitted by third parties; it’s the law that protects a website owner from liability for defamatory statements by users. That defense was addressed in briefs filed by both BookSurge and the plaintiff but was not addressed in the court’s ruling so that question survives for another day.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, “Doing Business on the Internet” and “Emerging Technologies and the Law.” He also co-writes the New Media & Technology Law Blog.

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