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Online publishing forces evolution of defamation law

By David L. Hudson Jr.
First Amendment Center research attorney

(Editor's note: This story originally appeared in the Next Media Reader: New Technology and the American Newsroom, a publication of the American Society of Newspaper Editors.)

The Internet breathes life into the First Amendment by ensuring more people the opportunity to speak out on matters of public importance, but it also affords greater opportunity for individuals — and, by association, the organizations that employ them — to defame others.

In dealing with the world of cyberspace, where virtually any person can become both journalist and publisher, the legal community has had to adapt principles of law from the medium of print to online. The challenge for the U.S. legal system has been to adapt existing constructs that govern such areas as defamation, trademark, privacy and copyright law to a global method of communication that shatters conventional jurisdictional boundaries.

Generally speaking, the traditional standards applied to defamation remain consistent in "cyberlibel," although libel law, as a species of tort law, does vary from state to state. In order to make a valid claim of defamation, the plaintiff in a cyberlibel case must prove that a defendant published a defamatory statement — either with actual malice or through negligence — and thereby caused damage to the plaintiff.

Defamation law distinguishes between publishers, such as newspapers and magazines which control the content of their publications, and distributors, which merely distribute material without knowing its content.

Perhaps the most pressing question for the online libel world during the last decade has been under whether an Internet service provider (ISP) should be treated as publisher or distributor in defamation lawsuits.

The distinction often determines the outcome of such suits because a distributor is generally under no obligation to examine the publications it offers to determine if they contain defamatory material.

Under what circumstances should an Internet service provider, such as America Online, be liable for defamatory statements posted by a third party? In 1991, a federal court in New York ruled in Cubby, Inc. v. Compuserve, Inc. that Compuserve was a distributor and had "no opportunity to review" content before it was posted on the Compuserve bulletin board.

However, in 1995 a New York state court reached the opposite conclusion in Stratton Oakmont, Inc. v. Prodigy Services Co. In that decision, the court determined that Prodigy should be classified as a publisher rather than as a distributor because it had exercised substantial editorial control over the postings to its bulletin board.

In response to this latter decision, Congress enacted Section 230 of the Communications Decency Act of 1996, which says that "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."

The principles of notice and fairness applied by Section 230 to online service providers were first articulated by the U.S. Supreme Court in the 1959 obscenity case Smith v. California, in which the court ruled that a bookseller did not have a duty to inspect every book to determine whether it might contain obscene material.

Imposing such a duty would cause booksellers to engage in self-censorship, the high court wrote. "The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it all, the distribution of all books, both obscene and not obscene, would be impeded."

Recent cases indicate that courts interpret Section 230 to prohibit ISPs from engaging in self-censorship and demonstrate the extent of the protection Section 230 offers ISPs.

For instance, a pair of decisions handed down in 1998 suggested that an ISP will not generally be held liable for third-party defamatory comments about which the ISP had no reason to know.

In Blumenthal v. Drudge, White House staffer Sidney Blumenthal sued Internet gossip columnist Matt Drudge and America Online over statements made in one Drudge Report inaccurately reporting a "rumor" that Blumenthal had a "spousal abuse past that has been effectively covered up." Blumenthal and his wife sued AOL because the online service had a contractual arrangement to pay Drudge $3000 a month for his reports.

However, U.S. District Judge Paul L. Friedman ruled in April 1998 that Section 230 of the Communications Decency Act exempts Internet service providers from lawsuits based on content created by others. Judge Friedman wrote that "Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role."

Reinforcing this principle, the U.S. Supreme Court in June of last year refused to review Zeran v. AOL, a ruling by the 4th U.S. Circuit Court of Appeals that Section 230 prevented AOL from being held liable for a phony message that had been transmitted over an AOL bulletin board.

Kenneth Zeran had sued America Online after an anonymous individual posted a message telling people to call "Ken" at Zeran's home number if they wanted to purchase "Naughty Oklahoma T-shirts" bearing tasteless slogans about the bombing of the Oklahoma City federal building.

The 4th Circuit had written that, in passing Section 230, "Congress recognized the threat that [such] lawsuits pose to freedom of speech in the new and burgeoning Internet medium." The U.S. Supreme Court chose not to review that opinion.

A second pressing issue confronting those concerned with cyberlibel is jurisdiction. One question raised in this context is whether a newspaper with an Internet site can be sued for libel under the laws of another state or even of a foreign country in which the alleged victim resides.

Generally, a court will examine whether a state may exercise personal jurisdiction over a defendant in an online defamation case by determining the level of the defendant's contacts — both online and offline — with persons in the state. An important factor is the nature of the Web site: whether it is interactive or only posts so-called "passive" information.

In the Drudge case, for example, the defendant argued that the federal court in the District of Columbia was not authorized to exercise jurisdiction over him. However, the court ruled that "the constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his Web site is the epitome of Web site interactivity."

The international reach of online communications now transforms such jurisdictional questions into global issues of competing international law.

In June, Dr. Laurence Godfrey, a British physicist, sued both Cornell University and the University of Minnesota for allegedly defamatory comments posted to a Usenet newsgroup by students at the universities. The suits are troubling because many foreign countries' libel laws do not incorporate the kind of free-expression standards guaranteed by the First Amendment.

Numerous other aspects of defamation law are continually being tested in cyberspace. These include:

  • Whether retraction or correction statutes apply to Internet publications and, if so, how retractions of stories posted online can be accomplished;
  • Whether the single-publication rule — an exception to the general rule that each communication of the same defamatory matter is a separate publication — applies to online newspapers. In the print medium, re-publication will not occur unless a new edition containing defamatory statements is released.
  • Whether the concept of "limited purpose public figure" — a plaintiff who has achieved enough prominence with respect to a certain controversy that he or she has to meet the "actual malice" standard of proof — will apply on a greater basis for people online;
  • Whether the statute of limitations begins to run in a defamation case when an article first appears on the Internet or when it first appears for sale on the newsstands.

The many issues involving libel law on the Internet will undoubtedly require additional litigation to clarify how existing legal constructs work in cyberspace. We can hope that courts will recognize, as the Supreme Court did 25 years ago in New York Times v. Sullivan, that "erroneous statement is inevitable in free debate" and will not stifle what the court in Reno v. ACLU called "the dramatic expansion of this new marketplace of ideas."

David Hudson is a research attorney with the First Amendment Center. He can be e-mailed at


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