Defamation on the Internet
“Freedom of internet communication is fundamental to freedom of speech and violating it should be anathema to democracy” says David Isenberg at Harvard Law School’s Berkman Center for the Internet and Society (CQ Researcher, Clemmit). Unfortunately not everyone feels this way, and defamation laws restrict libel and slander on broadcasting industries. It has occurred with the evolution of print, radio, television and now the new media: the internet. The major difference with the internet which incorporates the abilities of print, radio, and television, is user interactivity which poses major issues of anonymously published slander or libelous content that can be read, heard, or seen by a mass audience. Libel cases are mostly dealt with in state court systems and can have damage awards over millions of dollars in some cases. They protect people’s livelihoods and they protect truth but at a cost of our free speech will regulations pose a slippery slope, or when one poor example of the law can cause a chilling effect resulting in weary reporters fearful of publishing any statement that could be considered defamatory. That is similar to an authoritarian model of government regulation which originated after the invention of the printing press and is actually in use today by countries such as China in their regulation of the internet (Clemmit, 2008). As with radio, early regulation was not clear as internet regulation is presently unclear. With little government control, one of the main differences is that radio and television are more invasive than the internet which is a big factor in regulation. It being a global network that has extended in massive size reaching anywhere on earth, some kind of international regulation requires policy negotiations with every country. Media law cases of online defamation or defamation on the internet, is a growing problem in 2009 and applies to internet regulation and development.
Defamation refers to damage of reputation of a person or organization in a community by being exposed to public shame. There are two categories of defamation which are libel and slander. Libel requires a mass audience and is found in broadcasting industries while slander is usually spoken word in a smaller audience. States usually incorporate both libel and slander into one statute, and defamation can be known as injurious falsehood or “insulting words” (Virginia). The first defamation laws originated in England around the 1400s and has been in US law since the US was founded (Bobbit.) Only living people and businesses can sue for slander and the most common cases in history refer to false accusations of a crime, sexual conduct, business reputation, and personal character. Presently the most common example of slander is criticism of an individual’s job performance or suitability for employment. Slander cases are usually resolved out of court and until 1964 libel cases usually remained at state level courts because of the broad definition. Content that can be perceived to be libelous is usually consisted of news stories but photographs, captions, headlines, and advertisements are vulnerable as well (Bobbit.) Libel consists in two types, libel per se and libel per quod. Words that are directly harmful to an individual describe libel per se, and libel per quod is more of a less direct approach where the statement was not blunt but could be interpreted libelous.
There are six major categories of libel and the first is false accusation of a crime which is an identification error in a news report. The second is false criticism of personal character, habits, or obligations which is related to statements referring to promiscuity, dishonesty, cruelty, mental illness, alcoholism, drug abuse, contagious diseases, gambling habits and poor parenting (Bobbit.) False criticism of professional performance or competence, deals with false statements of labor practices. False criticism of business performance or financial standing refers to false statements made about ones business ventures or financial standing. Product disparagement is another category of libel which deals with an actual product rather than a person or a company. False criticism of political or religious beliefs or affiliations is a false statement of a person’s religion, not race or ethnicity.
Along with six categories of libel there are six components to prove for there to be a successful libel claim. The first is defamation which is defined by The Restatement of Torts as “communication which has the tendency to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him.” The second is harm, or damage to the reputation, financial condition, or emotional well being (Bobbit.) Identification is the third where claims will be more successful if the person is identified directly. Communication is a big factor for a successful libel claim where the statement was be broadcasted or published. Fault, negligence, and malice, is when a reporter goes by an unreliable source. Finally there is just plain falsity, which is blatant false information as getting a date wrong (Bobbit.) Libel suits do not apply to government or any public figures.
The best defense against libel is truth, but only if someone can prove the statement to be true. Just saying that it’s true because it was in plain sight and one person witnessed it is not enough. Fair comment and criticism, or opinion, is another defense against libel which gives the opportunity to fairly criticize public officials, business, and entertainment (Bobbit.) Privilege is a defense used by reporters who attend governmental meetings, and neutral reportage is another defense where both sides of the issue are treated fairly. Wire service defense provides protection to broadcast defamatory information from wire service reports (Bobbit.) Finally Rhetorical hyperbole is a defense based on exaggeration and is obviously a parody of some sort.
According to US law defamation varies among the 50 states and is not under federal law. The internet is found in every country each with its own policies on restrictions and regulations. There are many establishments which offer free internet access ranging from coffee shops, hotels, internet cafes, and even home networks which have no security on their wireless network’s access to the internet. A computer that is connected to an internet service provider is assigned its own individual internet protocol address, which is a series of numbers. That is how the government can track down illegal activities on the internet such as defamation. There is a service known as a proxy which allows the user to mask their internet protocol address with one based out of another country. This can make it costly to trace. Under a proxy, a user may post anonymously without leaving any evidence making it a time consuming costly investigation and the ability to commit defamatory remarks on blogs that do not show names, but still allow users to post anonymously without a proxy. The web site may be forced to give up that information in court as it did in Maryland, 2008. In the article titled “Md. Court of Appeals grapples with online anonymity,” two bloggers were accused of slandering a Dunkin’ Donuts because of blog posts on a newspaper web site. The posts read the establishment was “dirty and unsanitary looking” and “no one is cleaning outside of the building and the [garbage is] wafting into the river that runs right alongside” (Lash, Daily Record 2008.) “Queen Anne’s County Circuit Judge Thomas G. Ross told Independent Newspapers “to provide…the names of two commenters to its Web site.” On the website the bloggers only identified themselves as CorsicaRiver and Suze (Lash.) “In the United States, the battle for Internet control is playing out over revision of the landmark 1996 Telecommunications Act, which deregulated the telecommunications industry to increase competition” (Clemmitt, 2008,) and the Communications Decency Act or also known as the Internet Privacy Communications Act limits the liability of online service providers (Nahrstadt & Burton, Journal of Internet Law 2009.) The CDA states “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” (CDA, Nahrstadt & Burton.) As you can see there are laws protecting the internet service providers and the website owners which makes it difficult for victims of libel to find out who actually is guilty for libel.
Defamation online is harder to regulate than the traditional mass communications mediums due to millions of web pages with millions of users. Regulation of sexual content on the internet was the first attempt to regulate the internet through the CDA or Communications Decency Act which was part of the Telecommunications Act of 1996 (Bobbit.) This act was found to be overbroad and vague so in 1998 COPA was adopted which stands for Child Online Protection Act which prohibited sexual content to minors. In 2000 the Children’s Internet Protection ACT or CIPA required schools and libraries to carry filters protecting users from accessing sexually explicit materials. Private industries or employers enjoy full regulation of the internet on their employees to protect the company. Many states have established laws restricting unsolicited emails but these laws are difficult to enforce. The Can Spam Act was passed in 2003 which required mass emailers to label unsolicited emails. The Digital Millennium Copyright Act or the DMCA protects ISPs but at the same time holds responsibility to the ISP to take down illegal content after a warning. “In other words, once an ISP receives notice it must: Act expeditiously to remove or disable access to the allegedly infringing materials; Notify the alleged infringer that the material has been removed; Forward any counter-notices from the alleged infringer to the complaint; and Replace the allegedly infringing material if the complainant has not filed a lawsuit within 10 to 14 days after the ISP has received the counter-notice” (Medenica, Journal of Internet Law.)
“Today, ICANN is the closest thing to an Internet governing organization, although ostensibly it only manages certain technical parameters – mainly involving internet addresses – and bases its decisions on input from businesses, governments, and users around the world (CQ Researcher, Clemmitt.) ICANN resides as an independent organization but works under the auspices of the U.S. Department of Commerce (Clemmitt.) “ICANN – and other organizations being considered to take over Internet management, such as the United Nations – are too likely to become enmeshed with aims of big business and wealthy governments to make good long term stewards, say many public-policy analysts” (Clemmitt.) According to Milton Mueller who is a Syracuse professor of the political economy of communications and co-founder of ICANN’s Noncommercial Users Constituency, “The world is on the path to more globalized governance.” A current issue in Internet regulation is that ISPs treat content equally or a term known as net-neutrality.
Internet defamation most commonly occurs by posting negative comments on a blog and very rarely will courts order a blog to give your identity which gives posters a good amount of protection. Many people feel that the ability to remain anonymous has created progress and internet development. Some feel there needs to be a better form of regulation to protect victims. Today it is very easy for someone to be victimized by online defamation. As noted earlier defamation on the net can be found on blogs or also known as internet forums. With the advancement of blogs with streaming abilities, or broadcasting audio and video, new forms of defamation will increasingly surface and cases of defamation will continue. One example of this can be found in the article “Domino's Management Responds To YouTube Fiasco,” by David Kiley. Domino’s employees posted a video of themselves violating the food before it went out to customers. Domino’s president responded “the event had done big damage to the company’s brand (reputation,)” and that particular store was shut down. No lawsuits were filed against youtube.com but the employees who posted the video were fired and the video has been removed. This case is a good example of how defamation can be broadcasted through the internet by video. The internet resembles a television in many ways except of the less invasiveness but the website youtube.com is very conscious of the law which needs to be followed by other websites which give the ability to post video. The website movie-forumz.com is one example of how even the Hollywood movies are streaming before they are in theater which can show how easy it is to get away with posting a video that is defamatory or copyrighted.
In a California Supreme Court ruling in the case of Barret v. Rosenthal, November 2006, the Court of Appeal was overturned on the ruling of Rosenthal being guilty for posting an article that was not written by her on her message board (blog.) The ruling in this case showed that she was in fact a user of the interactive computer service provided and she received full protection under Section 230 (c) under the Communications Decency Act. This case is unique because the owner of a blog posted a document written by someone else and was labeled defamatory. This ruling surprises me only because she was the blog owner, if she wrote it herself the original ruling would stand. The defamatory comments consisted of statements made that criticized individuals abilities in the medical field.
A case where Calloway Golf Company received negative comments on their website from a competitor known as La Jolla Golf Club Company using twenty-five different aliases and posted more than one-hundred and fifty comments, including how stockholders should “get out before the next down tick occurred,” resulted in a subpoena to Yahoo. After pulling up the records, Steven Cade, owner of La Jolla Golf Company, was the user who under twenty five different aliases posted one hundred and fifty comments on Calloway’s web site. Cade posted an apology on Yahoo as part of a settlement but the case was “was referred to the Securities and Exchange Commission for further review” (Vance, Lawyers.com.) This is known as a cyber-smear campaign where competing companies write negative statements about each other via internet, through blogs, and any form of interactivity to decrease stock and sales.
The web site EBay has turned into a main source of income for some people and a recent case where negative feedback on an auction was settled out of court for $1800 and a vintage doll. A seller of a vintage doll had an item returned which resulted in the seller to write negative feedback about the buyer saying “the buyer tampered with the doll” (Vance.) The buyer then had people refuse business, which was an affect from the comments from the seller. “The buyers in turn brought suit in federal court alleging defamation. As a result of the suit, the seller retracted the comments, and the negative feedback was purged by EBay from the buyers' profile” (Vance.)
A recent online defamation case known as Noonan v. Staples, resulted in what some are calling the most chilling ruling on internet defamation or “the most dangerous libel decision in decades” and “The court ruled in the case of Noonan v. Staples that truth published with “actual malice” gleaned from the context of the statement can give rise to a libel lawsuit” (Martin Langeveld, Harvard University.) The case is centralized around an email sent by Staples manager to over 1500 employees about Noonan’s expenses on travel and how he violated company policy. “In reversing the district court decision, as well as its own earlier affirmation of summary judgment for Staples, the court ruled in Noonan’s favor, relying on a 1902 Massachusetts law that provided truth is a defense against libel unless the plaintiff can show “actual malice” on the part of the defendant in publishing the statement. The final outcome of the case could have chilling implications for journalism” (Langeveld.). Even though the Staples email contained all factual information of truth, the fact that they showed “actual malice” or blatant intent to harm Noonan’s reputation, they were found guilty of libel. This proves to show that internet defamation cases can also come from emails not just web pages.
My personal opinion on internet governing and regulation is there should only be regulation on pornography and obscene materials. People know that not everything on the internet is true and information on the web should be taken with a grain of salt if the source is not academic or from a broadcasting industry. I feel that newspaper, television, radio, and magazine websites should be under the same restrictions of defamation law as if it were the original medium only because of the larger audiences they reach. That should also imply to other high traffic websites. Anomynimity issues on blogs will certainly have more cases which go unsolved and will be a total waste of money and time which is very good reason to just keep regulation on porn and obscenity. There should be a free certification on websites to publish newsworthy content that meets standards of professionalism which can discourage people from writing libelous content on their blog and be blatant on informing them of the consequences from their actions if a post is defamatory. There needs to be more fraud protection on the internet and a better way of tracking criminals who commit fraudulent acts and cause defamation. A way to achieve this is again creating some kind of certification that is encrypted, unique to a computer that is registered on the internet and creating a global alliance to destroy proxy servers. Sadly there will always be new technologies preventing this view on regulation and anomynimity will continue regardless. People need to more informed on the consequences from blog posts. I believe that if people are more aware of the law and the risk they are taking by breaking the law, they will not commit acts of defamation on the internet. The issue with service providers of interactivity (the website itself) and libelous content needs to be clear, we can’t just rely on webmasters deleting libelous content, there needs to be more clear regulation on how this issue will be addressed and until people take the internet more seriously I doubt that there won’t be any less defamation cases and this will be a growing problem.
Bibliography
Alexand, S. L. (2004). Contemporary world issues: Media and American Courts. Santa Barbara, CA: ABC CLIO.
Bernadette, H. & Martin, C. (2004). Contemporary world issues: Cybercrime. Santa Barbara, CA: ABC-CLIO.
Bobbit, Randy (2008.) Exploring Communication Law: A Socratic Approach. University West Florida: Allyn and Bacon.
Bradley C Nahrstadt, Jeremy T Burton. (2009, March). MUST YOU WATCH WHAT YOU SAY? APPLICATION OF CDA TO PUBLICATIONS ON THE INTERNET. Journal of Internet Law, 12(9), 1,14- 23. Retrieved April 26, 2009, from ABI/INFORM Global database. (Document ID: 1661805251).
Clemmitt, Marcia. "Controlling the Internet." CQ Researcher 16.18 (2006): 409-432. CQ Researcher Online. CQ Press. Your library's name, city, state abbreviation. 7 April 2009 <http://library.cqpress.com/cqresearcher/cqresrre2006051200>.
Keenan, M. K. (2005). Contemporary world issues: Invasion of Privacy. Santa Barbara,
CA: ABC-CLIO.
Lash, S. (n.d.). Md. Court of Appeals grapples with online anonymity. Daily Record, The (Baltimore, MD), Retrieved April 19, 2009, from Regional Business News database.
Maxwell, B. (2000). How To Track Politics on the Internet. Washington DC: CQ Press.
Medenica, Olivera. "THE IMMUTABLE TORT OF CYBER-DEFAMATION." Journal of Internet Law 11.7 (Jan. 2008): 3-10. Business Source Premier. EBSCO. [Library name], [City], [State abbreviation]. 26 Apr. 2009 <http://online.library.marist.edu/login?url=http://search.ebscohost.com/login.aspx ?direct=true &db=buh&AN=28082973&site=ehost-live>.
Netscape (2009). Retrieved March 16, 2009. Open Directory - Society: Issues: Science and Technology: Computers: Internet.
The Gale Group (2005). Libel. In West’s Encyclopedia of American Law, Second Edition (Vol. 13, pp. 127-127). Farmington Hills, MI: Thomson Gale.
(2007). Media Access Project. Retrieved March 16, 2009.
Evan Brown. (2007, January). INTERNET LAW IN THE COURTS. Journal of Internet Law, 10(7), 16-18. Retrieved May 15, 2009, from ABI/INFORM Global database. (Document ID: 1197024311).
Lynch, T. (1996). DS9 trials and tribble-ations review. Retrieved October 8, 1997, from Psi Phi: Bradley's Science Fiction Club Web site: http://www.bradley.edu/campusorg/psiphi/DS9/ep /503r.html
Media Access Project. (2007) Retrieved May 2009. Web site: http://www.mediaaccess.org/
Open Directory - Society: Issues: Science and Technology: Computers: Internet. (2009). Retrieved May 2009. Web site: http://www.dmoz.org/Society/Issues/Science_and_Technology/Computers/Interne t/
Domino's Management Responds To Youtube Fiasco - BusinessWeek (2009). Retrieved May 2009. Web site: http://www.businessweek.com/the_thread/brandnewday/archives/2009/04/domino s_managem.html
Noonan v. Staples: “The most dangerous libel decision in decades” » Nieman Journalism Lab.(2009) Retrieved May 2009. Web site: http://www.niemanlab.org/2009/02/the-most-dangerous- libel-decision-in- decades/
Libel Online. (2009) Retrieved May 2009. Web site: http://internet- law.lawyers.com/Libel-Online.html
DC sues former patient for bad review, Part 2: Changing the law to fit the internet. (2009). Retrieved May 2009. Web site: http://www.chiroeco.com/chiropractic/news/7104/677/dc- sues-former-patient-for-bad-review-part-2-changing-the-law-to-fit-the-internet/
