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Libel and Defamation in Cyberspace Libel is one kind of "defamation." It is defamation by writing. Slander is
defamation by saying. Our focus in the next few messages will be on libel, since most of the defamation that would exist on the net is defamation by writing. (Not to say that slander is impossible when voice telephone
messages are transmitted over the net, there can be real slander on the net without libel. But we will ignore the subtle differences between the two.) But what then is defamation? Defamation is a statement that harms
the reputation of someone else. The important point is reputation: for it to defame, it must either lower the victim's standing in the eyes of the community, or tend to make others refrain from associating with the
victim. That sounds pretty straightforward, but there are many qualifications. (This is law, remember!) Adding these qualifications is the purpose of the balance of our messages. We first consider some basic features
of the law, and then consider special problems raised by the net. Let's begin, though, with a little bit more about the definition. Here are a few examples that might help: I send an email to my boss and accuse him
of cheating on his taxes: Whether true or not, this is not libel: it was not a statement made to someone else. Since it is not made to someone else, it doesn't harm the reputation of my boss. I post a message on a BBS
stating that Sarah has blue eyes, when in fact I know she has brown eyes: This too is not libel, since whether she has blue or brown eyes (probably) doesn't affect her reputation. I send an email to a friend of John,
and say that John cheats at golf. John's friend tells no one this, and doesn't believe it, since John doesn't play golf: No libel, since while false, and while likely to harm reputation, if the friend doesn't believe
that John plays golf, then there has been no harm to reputation. These examples emphasize the basics of a libel claim: The writing must be made to someone else, it must be the type that generally affects reputation,
and it must in fact affect reputation. Next time we discuss some defenses to the ordinary libel claim. Libel: Defenses Let's say you were silly
enough to send an email to someone and say: "Nathan, an accountant, calculated my taxes incorrectly." This person tells someone else what you said, and then someone tells Nathan, and then others take their
business elsewhere. Nathan then sues you for libel: Are you stuck? Not necessarily. You may have a defense. Here are four of the most significant defenses: Second, you may have an absolute privilege to make the statement, even though it was falsely defamatory. For example, if the email was to your husband, then even though falsely defamatory, you have an absolute immunity. (Your husband may not when he repeats it to someone else, but that is a different question.) Or if you made these comments as a witness in court, or as a witness in a legislative hearing, or as a witness in an executive hearing: In each of these cases you would have an immunity against a libel action. (You may be prosecuted for perjury if what you say is false, but again, that's a different question). Third , you may have a qualified privilege to make the statement, even though it is falsely defamatory. This is sometimes called the privilege of fair comment, and it covers a wide range of cases. But the essence of it is that where there is some sort of public or community concern at stake, you can say things that are "fair criticisms." So long as you don't do it out of spite, if the email was sent to Nathan's boss, or to the IRS, then you may have some defense to the claim. (This defense is closely related to an important twist to the law of libel given by the Free Speech Clause of the First Amendment which we discuss more later.) Finally, if your statement was just an opinion, then it will not be libel. So you say "Madonna is the worst performer ever," then what you say is not actionable. It is opinion, not fact (even if it is fact for you.) This is true even if the criticism is "unfair." Unfair criticism is not defamation. That does not mean that you can change a fact into an opinion merely by qualifying it. If you say, "I think Madonna is a murderer" then that is likely a statement of fact, not opinion. Clearly, the line will be hard to draw at times, but usually not. Perhaps the best statement of the test
is this: Does the statement reasonably imply some false factual claim? If it does, then it can be defamatory; if not, then it cannot. What if the writer was extremely careful, checked the facts, but it turned out that
the facts were wrong: Liable? Under most state law, the writer must at least be negligent about the facts before he or she is liable. If he or she knew the writing was false, then of course there is liability. But
usually, there must be a showing that the writer was at least careless. Next time we add another important qualification: What if instead of Nathan, you said something false about President Clinton, or even Clint
Eastwood? Libel and the First Amendment A newspaper publishes an article, reporting that a local candidate for mayor has failed to pay his taxes for
the last 5 years. The reporter learned this from a confidential source at the tax office. The reporter has reason to believe this source, but it turns out the informant is flat out lying. The story is false, and because
of it, the candidate for mayor loses the election. Can the mayor sue the newspaper? No. In an important free speech case, New York Times v. Sullivan (1964), the Supreme Court held that public figures could not sue for
defamation unless they could show that the publisher: (1) knew that what it was publishing was false, or (2) unless the publisher was "reckless" about the truth of what it published. If the reporter knew
the story was false, then there would be liability. Or if the reporter simply published an "anonymous tip" received on the phone without checking the story at all, then there would be liability. But if took
even the most rudimentary steps to confirm the tip, then even if the story turned out to be false, the reporter, and the newspaper, cannot be sued. (The Supreme Court calls this the "actual malice" test, but
it has nothing to do with "malice" in the ordinary sense of that term. The question is not whether you had ill will against the victim; the question is just whether you knew what you said was false, or was
reckless about it.) The federal constitution, then, limits libel suits when they concern public figures. Who is a "public figure"? That is a complex question, too complex to go into here. For now we can say
this: Clinton is a public figure, but so too is Michael Jackson. The question is not just whether the person is a public official; it is more generally whether he or she has put his or herself in the public eye, and
become very well known. One reason why public figures have less protection from the law of libel is that the law assumes they can take care of themselves. They have, the law assumes, access to the media. If they want to
defend themselves against a false charge, it is easier for them to do it than it is for a private person. And since they can use the media to defend themselves, the libel law is focused on those who don't have the same
opportunity to protect themselves again, private persons. Libel On-Line: I We said that one reason public figures got less protection from libel law
was that they had an easy opportunity to defend themselves. Because they had access to the media, they could easily rebut charges that were in fact false. This, the courts have said, distinguishes public figures from
private persons, since private persons don't have as easy an opportunity to reply. But what about people on the net? If I am libeled in an America Online chat room, not only do I have the opportunity to respond quite
easily and cheaply, AOL in principle could determine most of the people who saw the libel. My reply could then be targeted at them. Thus my ability to reply in that context is better than a public figure's ability to
reply. Does that means people on the net should be treated as public figures for purposes of libel law and given as little protection from libel as public figures? Some have argued that they should, but no court has yet
accepted that argument. And while libel law may need to be adjusted to fit cyberspace, it is probably unlikely that it will be so dramatically changed. Whether they can defend themselves or not, courts are unlikely to
make self-help the only remedy for libel. They believe the law as well should help. The ability to respond cheaply may affect how harmful any particular libel is, but we believe it is unlikely that it will be converted
into a license to libel. Imagine Dr. Evans is hosting an on-line chat discussion about cancer. Someone named IBEX enters the room, and says, "Dr. Evans is not a medical doctor. She is a veterinarian. She knows
nothing at all about human cancer, yet she continues to practice medicine without any qualification. She is a fraud." IBEX then leaves. What then? Well, lets assume first that everything IBEX said about Dr. Evans
was false. IBEX has defamed Dr. Evans, and Dr. Evans has a right to sue IBEX. (How much she could recover depends upon how many people read what IBEX said, and whether Dr. Evans could effectively prove IBEX was
lying. That's a different question, though, from whether she can sue.) But who is IBEX? Imagine Dr. Evans contacts the on-line service provider about the defamation, and they then track down the person who owns the
account that IBEX was logged onto. That person, however, turns out to have been in Vietnam for the summer, and certainly could not have been IBEX. The real IBEX is gone, off to do harm somewhere else another day. Is Dr.
Evans then stuck? Is there no one she can sue? Well, what about the on-line service provider? Even though IBEX wrote the libel, the service provider technically "published" the words that defamed Dr. Evans.
Shouldn't the on-line publisher, like a newspaper, be responsible for the damage its publications do? The law of libel was written in the world of newspapers. Newspapers publish stories that expose them to defamation
liability. These stories are typically written by newspaper employees (reporters), but this liability exists even for letters to the editor, or paid advertisement. There are editors who read through everything before
anything is published. The newspaper therefore exercises, or can exercise, some control over what it publishes, and because it exercises control, it makes some sense to hold it liable. What about an on-line service
provider, like Compuserve or AOL? They resemble newspapers, in that they, too, "publish" stories. Some of these stories have been written by Compuserve or AOL. But most of them have not. Most of them have been
written by users of the system, and posted to the system without any intervention by the service provider at all. Should the service provider still be considered a publisher and thereby be subject to liability for libel
like a newspaper? The question is complicated, and technology is not making it any easier. Here's another example: Imagine someone phoned up Larry King Live, and falsely said on national television that the local
butcher was a crook. Is Larry King liable for publishing a libel? (Note that it is a question whether this is a libel or a slander, but we assume it is a libel). The answer here has got to be no. Larry King had no
control over what the caller said, and there would be no way to screen what the caller said to make sure it was not defamatory. (Remember: if the story were true, it would not be defamatory.) So Larry King is not
liable as a publisher of this falsely defamatory fact. At least the first time: What about a rerun? Imagine Larry King reruns the same show, after learning that what the caller said was falsely defamatory. In this case,
Larry King could be liable. The same idea may be behind much of the debate about whether a on-line service provider is liable for libel. For when something is first posted, for the most part, it is like the caller on
Larry King. There is little the service provider could do to avoid the first posting. But if, after the service provider learns about the defamation, it still does nothing, then the provider is likely to be liable
itself. Even if it couldn't avoid the original publication, the later publications it could do something about. This was the decision of a famous case in cyber-lore, Cubby v. Compuserve. So long as Compuserve doesn't
know, or doesn't have reason to know, about the libel, Compuserve, the court held, cannot be liable. Compuserve would be treated more like a bookstore than a publisher if it knows of an offending work, but not if it
doesn't. Following the Cubby case, then, our Dr. Evans could not sue the on-line service provider. If she can't sue IBEX, then she is stuck. Her only remedy is to try to prove to people that what IBEX said was false.
But Cubby wasn't the last word on this subject. In our next message, we discuss a case that reached a different conclusion. Dr. Evans moves over to a different on-line service provider. This on-line service provider
promises to screen all messages before they are posted on an on-line bulletin board. Dr. Evans chooses this over the other on-line service provider, since she is less likely to be flamed on this service than the other.
The new service provider does what it promised; it does screen all messages before they are posted. A gaggle of editors sits at computer screens reading every message; any questionable message gets routed to a fact
checking team that determines whether it is too questionable to publish or not. Questionable posts are dumped; indecent posts are dumped. This on-line service provider becomes known as the Disney World of on-line
services. And then IBEX returns. Again, IBEX posts a similar message: "Dr. Evans is not a medical doctor; she is a veterinarian. She has fraudulently been practicing medicine for 5 years, pretending to be a medical
doctor when she is not. She is a LIAR and a FRAUD." The message is sent to be posted. A tired, and bored, editor, reads it, but doesn't understand the significance of what he has read. He allows the message to be
posted. Evans is shocked; very quickly, the service provider pulls the message, but not before 1,000 people have read it. IBEX has once again disappeared. What can Dr. Evans do now? Well, this case is a bit different
from the last case. In this case, the on-line service provider is acting more like a traditional newspaper. It is screening the stories that it posts; it promised that it would. And while this might be a difficult task
to do, or do well, no one forced it to do it. It chose to be the Disney World of on-line services. Now, the argument goes, the on-line service provider must pay. This was the reasoning that led a court recently to a
different conclusion from the one in Cubby. In a case called Stratton Oakmont, the court ruled that Prodigy would be treated as a newspaper, since the court believed it had exercised editorial control over the content
of the messages posted. Both through automatic screening, and some manual screening, Prodigy (the court thought) had become something different from Compuserve. Many thought the Stratton Oakmont case a radical
departure from the Cubby decision, and many have criticized the decision quite forcefully. Technically, however, (and lawyers love the technical), it was a much more limited decision. The court not holding that Prodigy
was responsible for every false fact published on their service. Prodigy had represented (or so the court found) that it would remove offensive and uncivil comments, whether true or not, and this was what they had
failed to do. It was only because of it undertook to do this that the court considered Prodigy more like a publisher than a book store. The authority of the Stratton Oakmont case has been made questionable by the
recent Communications Decency Act of 1996. The famous part of that statute is the part that attempts to limit indecency on-line. But in a little-discussed portion of the statute, it says that service providers will not
be considered "publishers" of material that they did not write. That seems to say that the Cubby decision is the law, and that Stratton Oakmont is not. But this is an area of some doubt. Stay tuned! Injury to a Pseudonym's reputation? IBEX, from a few messages ago, is a real character. He appeared in an on-line discussion group in a cyberlaw class that
one of us taught. When he appeared, he was not very nice. His contributions were harsh, and direct, and people in the on-line community were angry about them. Many were angry he was appearing with a pseudonym, rather
than using his real name. IBEX defended his use of a pseudonym, claiming he had a right to speak without fear of retaliation. After a brief and furious exchange with members of the class, IBEX disappeared. For a few
days, all was quiet. Then IBEX returned. This time, however, IBEX was not just harsh. This time, he was plainly offensive. IBEX had become a hateful and vicious character, insulting members of the community and in one
case, doing real harm by revealing confidential facts about one class member's background. Once again, but now to a far greater extent, the community was outraged. And once again, IBEX went away. But again, IBEX came
back. This time, however, IBEX was the angry one. For IBEX claimed that the second IBEX (IBEX II) was a fraud. He claimed that the vile IBEX II was not him, and that the person who had taken IBEX's name had
"defamed" IBEX. IBEX (still quite harsh and generally unpleasant) demanded an apology from the person who had made him seem vile to others in the community. IBEX had, IBEX claimed, been wronged. Was he?
Let's start with a simpler case: Imagine you send a letter to the editor of the New York Times, pretending to be one of us. In that letter, you give an analysis of the recent Communications Decency Act. Imagine the
letter is published, but that it is a terrible legal analysis. Imagine it makes basic mistakes in applying constitutional law (so basic that even we wouldn't make them), and generally makes us appear to be fools. Have
you defamed us? If you have harmed our reputation, then defamation law protects us. And the same should be true on-line, maybe even more so. One feature of cyberspace that is troubling is the problems with identity.
It is often easier in cyberspace to fake someone's identity, and therefore easier as well to steal someone's identity. If you steal someone's name, and then say things harm him, we expect a court would find you liable.
This is different from merely taking a pseudonym: Merely using the name "Snowflake" doesn't harm anyone, so what you say as "Snowflake" isn't actionable. But what then about IBEX? Well, conceivably
IBEX would have a claim against the fake IBEX, for certainly the real IBEX's character has been harmed by the fake. In principle, that is, a pseudonym may deserve as much protection as a real name does. This is for now
a point of some uncertainty. Trade Libel Frustrated with the service you receive from your on-line service, you post a message on a USENET newsgroup
claiming that the service "has repeatedly misdirected my email, and lost my files." In fact, this happened once. Have you defamed the service? Yes. Defamation law protects businesses as well as individuals.
You are liable if you falsely ascribe to a business conduct, characteristics or a condition incompatible with the proper conduct of that business. Saying (falsely) that a on-line service provider misdirect mails
repeatedly is an example of this. Saying that an attorney bribed a judge is another. Claiming that a pharmacy mislabeled a drug is a third. In each case, if what you say is false, and it undermines confidence in the
business or professional's job, then you are liable. In some cases, if the defamation ascribes to another conduct that would adversely affect his fitness for is job, trade, profession, or office, the defamation can be
actionable without an actual showing of harm. Trade libel will become even more important on-line. As the number of commercial transactions on-line increases, the ability for consumers to "publish" their
complaints will increase the incidence of trade libel. It is unlikely, however, that companies will resort to suing customers who complain: The (true) report that a company is suing a complaining customer is itself not
libel, and may do more harm to the company than the customer's original complaint. Where trade libel is most likely to affect on-line speech is with on-line service providers. While the defamed company is not likely
to sue the complaining customer, it is quite likely to threaten to sue the on- service that keeps the complaint posted. That threat is quite likely to induce the on-line service provider to keep complaint boards at a
minimum.
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