Cybertattling: Should It Continue to Be Legal for People to Report Bad Driving and Other Rude Behavior Online?
By ANITA RAMASASTRY
|Thursday, Jun. 14, 2007|
If you are a bad driver, if you suffer from road rage, or if you make a habit of parking in handicapped parking stop without a permit to do so, then you may soon find your license plate (and possibly other identifying details about you) reported online, by a disgruntled fellow driver or pedestrian.
Sites that host such comments - a relatively new phenomenon - have been nicknamed "cybertattling" sites. These sites raise privacy concerns, for people may find personal details about them posted alongside their license plate numbers.
Some may feel that we are too advanced to use the kind of "shaming punishments" employed in colonial times; others may feel that this is the only way to make dangerous drivers consistently accountable, given that law enforcement cannot be everywhere at once.
Such sites also raise concerns of accuracy -- as people may find themselves wrongfully accused. In addition, those with easy-to-remember vanity plates may be more at risk of complaints. (One user's ill-chosen vanity plate "IDRVFAST," along with claims that he was a bad driver, led to the posting of his full name, cellphone number, and a link to his MySpace page.)
Is there any legal recourse - against either the person who posted the information, or the site that hosts it? As I'll explain, the basic answer is no: If the information is accurate, and is not the result of a privacy violation, then there is no recourse against the person who posted it. Moreover, thanks to a broad federal statutory immunity, there is no recourse at all against the site, as long as it is simply acting as the host for the information.
In this column, I'll explain why this is the current state of law, and consider whether it ought to be changed.
Driving and Parking Gripe Sites: A Few Examples
To get a sense of the kind of websites that host cybertattling, it's useful to look at a few examples. The first is Aboveaveragedriver.com. Its mission is to identify and vilify bad drivers and its anonymous postings currently provide descriptions of the car (potentially including the license plate number) and of the alleged offense. In the future, the site may also post photos.
In addition to its stigmatizing mission, the site claims a more positive mission as well - to provide "an outlet for road rage and the frustration that comes from our daily encounters on the open road." It also suggests that its users can compliment good driving, as well as complaining about bad driving, noting, and "Here you can report drivers, whether good or bad."
PlateWire.com also allows people to post comments about good and bad driving deeds - by license plate number. Its founder was reportedly inspired to create the site after getting nearly run off the road by several drivers, including one who was looking into his backseat and steering with his leg. The site gets revenue through advertising. Users in a dozen or so states can also pay $2 to have a postcard sent to an offending driver, directing the accused to the site.
Caughtya.org displays pictures of cars illegally parked in handicapped spaces. (Other objects qualify, too; one photo in the "special mention" category is labeled "Big Rubber Chicken parked in accessible parking spaces.")
One site, Irate-Driver.com, allows visitors to subscribe to a service to receive reports about their own vehicle. This same site asks visitors to rate incidents on a sliding scale for example, a driver might receive a " -2" for "[r]ude or offensive hand motions and some tailgating" and a "-1" for "dirty looks after an incident".
Finally, if you type "ycantpark" into the photo website Flickr, you can find around 200 photos of bad parking jobs at Yahoo's Sunnyvale, California location. The photos were reportedly posted in 2005 by disgruntled employees who were fed up with incompetent employee parking.
One Potential Problem with Such Sites: Inaccuracy
The advantage of such sites is clear: Some dangerous and inconsiderate drivers may indeed be shamed into cleaning up their acts. But what about the downside?
For one thing, the postings may be inaccurate in several ways:
The car owner might be faulted when the real culprit is a teenage son or daughter, or a friend or neighbor, to whom he has lent the car. This problem might, however, be solved by a cautionary note on each site reminding users that the owner and the driver are not necessarily the same person.
The viewer may also misinterpret the situation - by arriving late to an accident scene, for example, only to assume that one car was at fault, when it was really the other, or failing to notice the entire traffic situation to which a given driver had to respond.
Moreover, good drivers might be maliciously targeted with false accusations. Allowing drivers to post rebuttals might ameliorate this problem somewhat. And the defamation laws definitely apply online - meaning that if the driver can find out who maliciously lied about him or her, then he or she could sue the liar. But finding out may prove difficult or impossible, since postings are anonymous and sites may or may not retain user information. Moreover, as I have discussed in previous columns such as this one, a provision of the Communications Decency Act prohibits going after site hosts for online defamation by site users. And even if a suit can be brought against a poster himself or herself, it's well-established law that statements of opinion - unlike statements of fact - cannot form the basis for a defamation case.
The effect of any inaccuracy could be compounded if insurance companies begin relying on cybertattling sites' information, formally or informally, and if litigants begin to use such information in car accident cases. Since the information is of dubious reliability, however, courts are likely to exclude it unless the person doing the reporting actually comes forward to testify to what he or she saw. Insurance company use is more problematic; it could happen without drivers' knowing it, and there might be no legal bar to its use. Unlike courts, insurance companies aren't required to assess whether evidence is more prejudicial than it is probative.
Another Potential Problem: Privacy Issues
Another worry that such sites inspire has to do with privacy - but here, again, current law provides little help. If a Web posting contains a person's address or phone number, and that information is already publicly available, there is no privacy violation. Thus, although most cybertattling sites say they will remove such information if asked, that's a matter of courtesy, not of compliance with the law.
In addition, postings might make sensitive private information public by locating a particular person at a particular place at a particular time - thus revealing, say, an extramarital affair or covert business deal. Though such scenarios may seem somewhat farfetched, it's this very kind of concern that is being raised regarding the images of populated streets that are shown on Google Maps. Moreover, a key component of privacy has long been through to be the privacy of one's daily doings and travels.
Potential Legal Solutions: Regulate Insurance Companies, and Protect Privacy
Should the law intervene here? I believe the answer is: Not now. The problems raised above are quite speculative at this point.
If we see insurance companies relying too heavily on cybertattling, in a way that creates unfairness, or courts accepting cybertattling evidence (an unlikely event), then regulation may be called for. In addition, if the combination of sites like Google Maps, security cameras, and cybertattling ends up transforming our private daily agendas into public knowledge, then the law also may need to change to better protect privacy.
For now, however, perhaps the best advice is for us all to drive more safely and considerately - which has always been the right thing to do, in any event.