When Robert Steinbuch discovered his girlfriend had discussed intimate details about their sex life in her online diary, the Capitol Hill staffer didn't just get mad. He got a lawyer. Soon, though, the racy tidbits about the sex lives of the two Senate aides faded from the front pages and the gossip pages. Steinbuch accepted a teaching job in Arkansas, leaving Washington and Jessica Cutler's "Washingtonienne" Web log behind.
While sex scandals turn over quickly in this city, lawsuits do not. Steinbuch's case over the embarrassing, sexually charged blog appears headed for an embarrassing, sexually charged trial. Lurid testimony about spanking, handcuffs and prostitution aside, the Washingtonienne case could help establish whether people who keep online diaries are obligated to protect the privacy of the people they interact with offline....
[...] Steinbuch also recently added [Ana Marie Cox, then the editor of the popular gossip Web site Wonkette.com] as a defendant in the case, though he has not served her with court papers. A trial date has not been set, but Matthew Billips, Cutler's attorney, said there are no settlement talks that might head off a trial. "I have no idea what he wants," Billips said. "He's never said, 'This is what I think should be done."'
You have to wonder exactly what Steinbuch wants to accomplish with this lawsuit. After all, it seems to be the considered opinion of a great many people that this lawsuit is, to put it mildly, unwise. It means that the public -- to the extent that the public cares any more -- will get to hear all the salacious details of his sex life. Granted, he'll get to tell his side of the story ... but that hardly seems helpful, especially if the details Cutler originally related are substantially true, and the grounds for the lawsuit are that the details were private and personal and that publishing them was offensive; he's not suing her for libel or slander. Cutler's defense would, I would think, be partly based in that it was both true and her own life, and they will drag Steinbuch onto the stand to testify to all of those details. You wonder if he's really thought about what that would be like; I would imagine his lawyer has tried to point that out to him.
...Marc Rotenberg, director of the Electronic Privacy Information Center, said he may teach the Washingtonienne case this spring during his class at Georgetown Law School.
"Anybody who wants to reveal their own private life has a right to do that. It's a different question when you reveal someone else's private life," he said, adding that simply calling something a diary doesn't make it one. "It's not sitting in a nice, leather-bound book under a pillow. It's online where a million people can find it." Rotenberg asked, what if Cutler had secretly videotaped the encounters and sold the videos without Steinbuch's consent? There has to be a line somewhere, he said....
Well, to be fair, that last question is somewhat disingenuous. Congress has been, shall we say, extraordinarily enthusiastic in making certain that the line for visual depictions of sexual activity is very clear. If you publish, online or anywhere else, explicit depictions of sexual activity featuring actual people, nudity, all that fun stuff, then you need 2257 documentation, detailing the identification and ages of the people involved, detailed descriptions of the sexual activity, and their consent to participate and be photographed/filmed. Lacking that information, there are all sorts of legal things that can be done to someone publishing, say, naked pictures of their ex-significant-others online. To be sure, it doesn't often go much further than cease and desist orders ... in part because of the very considerations of personal privacy that Steinbuch seems to be both asserting and serenely ignoring at the same time. After all, if you go to the trouble of suing for damages -- and depending on who you are, the damage of having naked or sexually explicit images of you floating around the internets seems fairly easy to assert -- then you're likely to have to testify about the circumstances in which that photograph or video was shot, the circumstances of your breakup, the details of your sex life ... and who wants to do that?
It's going to be interesting to see if this case proceeds far enough for the judge to need to deal with the freedom of speech issues. I have not, myself, had an online journal per se for some time, but that was one of the issues that kept me from ever posting a lot. On the one hand, your life is your life. On the other hand, unless you're an entirely self-sufficient hermit, your life involves other people, who are also entitled to some consideration. How much of their business do you feel comfortable putting out into the public arena? Will they hate you if they find it and realize what you've said about them? If you're talking about your significant other, how much information will they be comfortable having out there that they don't control? What if you say something online in a fit of anger or pique, and then want to take it back, only to discover later that it was read more widely than you expected, even in a brief amount of time? How do you balance the fact that, again, your life is your life against the fact that their life is theirs?Posted by iain at December 28, 2006 02:16 AM