Libel Labyrinth

Once the Net makes everyone a publisher, does everyone have to worry about being sued for libel?


Todd Woody
March 5, 1997 1:00AM (UTC)

one of the verities of the World Wide Web is that just about anyone with a computer can become a publisher -- you, me, Rupert Murdoch or the latest nutcase raving on alt.fan.oj-simpson.

The withering away of the Fourth Estate, the dismantling of the wall between the journalist and the passive masses, is much celebrated by the digerati as a defining mark of the coming millennium.

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But some attorneys believe the age of interactivity is destined someday to collide with a defining moment of the past: New York Times vs. Sullivan, the 1964 Supreme Court victory by the old gray lady of dead-tree journalism that is the fountainhead of modern libel law and press freedom.

The Sullivan case gave the press extra protection from being sued for libel by public officials. But how will that precedent survive in the world of the Net, where everyone's a publisher and a potential public figure?

"The law will be transformed by the Internet," predicts Bruce Johnson, a Seattle First Amendment specialist. "The round peg of defamation law will almost certainly be hammered into the square hole of the Internet. The only question is what shape the peg will emerge."

The Net, in short, upends historic assumptions about libel, defamation and journalism as it exponentially expands the possibilities to commit libel, defamation and journalism -- and no one knows who will be left more vulnerable and who will be better protected in the new medium.

Libel law -- largely a local affair practiced by a specialized cadre of attorneys -- could well become a universal concern in an era when launching a global flame campaign against a company, product or person is a matter of a few mouse clicks.

U.S. libel law long has been premised on the existence of powerful publishers who control the flow of information. Today, Web zines, home pages and Usenet newsgroups have blurred the line between publisher and reader. Technological change, once again, has left the law lagging behind. When lawmakers attempt to close the gap, the result can be disastrous -- witness the Communications Decency Act.

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An individual's ability to bring a libel or defamation suit, notes Electronic Frontier Foundation staff counsel Mike Godwin, levels the playing field with the presumably all-powerful publisher. To promote what now-retired Supreme Court Justice William Brennan Jr. called "uninhibited, robust and wide-open" debate, the Supreme Court ruled in Times vs. Sullivan that public officials cannot win a libel suit unless they prove "actual malice" on the part of the press.

But on the Net, are we not all publishers? And are we not all public figures, to the extent that we, as retired Justice Lewis Powell put it, "thrust" ourselves "into the vortex" of public debate? For that matter, are we not all journalists, if we gather information and publish our findings worldwide? And if that is so, will Web writers invoke protections afforded reporters, such as the right to shield confidential sources from discovery by the courts, and the actual-malice standard of Times vs. Sullivan?

"Where private individuals are likely to sue and where the standard (for libel) is therefore negligence, you will see the courts trying to grapple with what standard of negligence to impose on ordinary citizens who simply transmit or retransmit information," Johnson says. "Do you apply the ethics of the journalist or the cyberspace citizen in exercising reasonable care in transmitting information?"

Johnson expects the sheer amount of information zipping around the globe to generate more libel suits. Others aren't so sure.

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"People have been flaming each other on the Internet for years and you hardly have seen any libel suits," says Godwin of the Electronic Frontier Foundation.

Godwin believes the ability on the Net to instantaneously counter libelous statements and the high cost of litigation discourages suits.

"It becomes possible for people who haven't got heavy-capitalized, traditional mass media access to correct the record in a serious way," he adds.

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Whether the courts ultimately will accept such a remedy is another matter. And would, for instance, a corporation like The Walt Disney Co. see a global retraction as adequate compensation for a smear campaign against Mickey Mouse? "See you in court, boys and girls" might be the more likely response. In such an instance, the libel suit gets transformed from being a remedy for the individual ill-treated by big media into a weapon in the hands of big media to retaliate against the unruly individual. And that doesn't even get to the question that usually arises in traditional libel suits -- "Who's got the deep pockets?"

International disputes over jurisdiction in libel cases also are likely to grow, according to Johnson. So far, U.S. courts have been reluctant to impose on American citizens judgments from countries that do not maintain similar protections for free speech.

Given that the widespread use of the Web began only about two years ago, it's not surprising there are few court cases over Net libel.

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One area that has been litigated, to a limited extent, is the liability for republishing libelous material. A 1991 New York federal district court decision, Cubby Inc. vs. CompuServe Inc., absolved an online service provider of defamation because it did not try to control the content of material it posted.

Four years later, in Stratton Oakmont Inc. vs. Prodigy Computer Services Inc., a New York state court ruled that the online service could be held liable because it retained the right to screen postings and thus acted more as a publisher than a distributor of information.

Seattle attorney Robert Cumbow and Adobe Systems Inc. corporate counsel Gregory Wrenn warned in a Perkins Coie law firm newsletter that liability may not be limited to online service providers like Prodigy and CompuServe.

"Does your company's name appear on (an) employee's Internet address, e.g, 'jdoe@XYZCorp.com'?" the attorneys wrote. "If 'jdoe' posts defamatory material online, expect 'XYZCorp' to be the deep-pocket defendant in the defamation action."

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That may explain the proliferation of disclaimers on some corporate and academic e-mail. These signature files announce that the views expressed belong only to the writer and not to the institution named in the Internet address.

Relief for some online publishers, however, may be found in the Telecommunications Act of 1996, Johnson says -- the very same legislation whose Communications Decency Act provisions so infuriated Net activists.

According to Section 509 of the law, "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."

One interpretation of that provision would immunize a newspaper that republished a libelous letter in its online edition but make it liable for the same letter if it was published in the printed version. Or to put it another way, if the New York Times' Web edition had somehow existed in the early 1960s, and it ran the civil rights movement advertisement that L.B. Sullivan of Alabama felt defamed him personally, the famous First Amendment case might never have gotten past a state court judge.

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Todd Woody

Todd Woody is a regular contributor to Salon. He is a senior writer at The Recorder, a San Francisco legal daily, where a different version of this story first appeared.

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