INTERNET LAW - Understanding Internet Defamation

Kelly O'Connell, IBLS Editor
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The law of Defamation has come under renewed scrutiny with the advent of the Internet. This is largely because it is the nature of the Internet to give the average, anonymous person an opportunity to express their opinion well-beyond any previously defined venue. Consider the fact that a person of modest means now has the ability to publish a statement, article, or news item across the world in an instant, without an editor checking the facts. Thereafter, the item will linger on the 'Net for months, or even years, impossible to recover and amend, if the "facts" are erroneous. Therefore, it is inevitable that problems are going to arise.

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The law of Defamation has come under renewed scrutiny with the advent of the Internet. This is largely because it is the nature of the Internet to give the average, anonymous person an opportunity to express their opinion well-beyond any previously defined venue. Consider the fact that a person of modest means now has the ability to publish a statement, article, or news item across the world in an instant, without an editor checking the facts. Thereafter, the item will linger on the 'Net for months, or even years, impossible to recover and amend, if the "facts" are erroneous. Therefore, it is inevitable that problems are going to arise.

The main issue to remember when dealing with the Internet is that people still have their basic legal rights intact on the Net, and - likewise - the Internet is not as completely anonymous as the typical person may presumes.

What is Defamation?
The law of defamation has been defined in the West for centuries, and the Internet variety holds to that same basic outline with a few twists. Defamation is the act of making an untrue statement to a third party that damages the subject's reputation. There are several subcategories of Defamation, being Libel and Slander. Libel is Defaming in a printed forum, such as a newspaper or magazine. Slander is spoken Defamation, and could be made person-to-person, or also broadcast over a radio or television.
Technically, Defamation actionable at law follows this schema:
1. A false and defamatory statement regarding another;
2. Unprivileged publication of the claim to a third party;
3. Rising, in the case of matters of public concern, to at least negligence by the publisher, or worse; and
4. Damages to the subject.

Generally, persons defined as "Public Figures," have a higher threshold in proving someone committed Defamation against them; that is, the statement must have been made maliciously. There are also four subjects that if falsely dispersed as a fact about another person, are actionable on their face: Attacking a person's professional character /standing; Alleging an unmarried person is unchaste; Claims a person is infected with a sexually transmitted, or loathsome disease; Claims a person has committed a crime of moral turpitude.

Is Internet Defamation Defined as Slander, Libel or Both?
Until the recent development of "podcasts," and other types of online videos such as those featured on YouTube, Defamation on the Internet was largely deigned Libel. But whether an online case of accused Defamation should fall under either category of Libel or Slander will not be nearly as meaningful as whether the activity satisfies the basic Defamation criteria, as defined above. What is most important is to focus upon the actual statement, whether verbal or written, that a plaintiff claims is defamatory.
A recently filed case illustrates the application of a libel claim in a blogging case in NY, Stuart Pivar v. Seed Media, 2007cv07334, Filed August 16, 2007, in New York Southern District Court. Seed Media pays PZ Myers to blog at ScienceBlogs.com, and there he reviewed a book by Dr. Stuart Pivar, called "LifeCode: The Theory of Biological Self Organization" which purports to reconfigure Darwinian Evolution.

Myers claimed Pivar is a "classic crackpot" on his http://scienceblogs.com/pharyngula website. In response, the lawsuit complaint states, "Myer's defamatory remarks were made with actual malice; Myers called Plaintiff "a classic crackpot" fully knowing that statement to be false as a statement of fact and in reckless disregard of the truth about Plaintiff because Myer's knew full well, the time of publishing his defamatory statement that no scientist holding the international reputation of any of Hazen, Sasselov, Goodwin or Tyson would endorse or review the work of a crackpot."

The complaint claims Myers caused "considerable mental and emotional distress," tortious interference with the plaintiff's business relationships as a "scientist and scientific editor," and "loss of book sales and diminished returns on ten years of funded scientific research in special damages" exceeding $5 million.
The suits asks for: declaratory relief to remove defamatory statements from the web and an injunction to block further libel; $5 million in special damages for "tortious interference with business relations"; and $10 million in damages for defamation, emotional distress, and loss of reputation.
This lawsuit well illustrates the libelous cause, effect and damages of a proper tort case based upon defamation.

Can a Blog Be Sued for Defamation; Isn't It All Free Speech?
This is a knotty issue, but a short answer would be, generally, that a blog owner whose blog has published obnoxious materials can be held harmless while a blogger using the site can be liable. The Communications Decency Act of 1996 is a protector of blog owners. It states, in section 230, that it "precludes courts from entertaining claims that would place a computer service provider in a publisher's role." As to how the court sees blogs, in general, overall, the US Supreme Court has ruled that blogs are similar to news groups, saying "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."

For bloggers, all Defamation legal rules apply to their posts. But there are many complications in applying them. First, many people who post online comments, and probably those tending to make the most inflammatory and false statements, will do so anonymously, for obvious reasons. So the first threshold is identifying the blogger making Defamatory claims. Several things make this difficult, as well. Since the blogger probably will not identify themselves when the issue comes to light, there needs to be a legal process that allows identification. They can be traced by high-tech means, but a court must agree via summary judgment that all the elements of Defamation have been met. This technology does have some limits, as well, as it can be stymied through use of "Proxies," which mask the true origin of the blogger. Also, the website owner may not cooperate in the search, as well.

A recent case showed how powerful Defamation laws, applied online, can be. In November 2006, a Florida woman, Sue Scheff, was awarded $11.3 million in damages in Broward County Circuit Court, in one of the biggest awards ever tolled. The suit was filed for Internet defamation, and the jury found a Louisiana woman had posted caustic messages against the Scheff and her company, claiming she was a "con artist" and "fraud". The jury found the charges were completely false, so the Louisiana woman had no defense. Interestingly, Scheff's attorney had offered to settle the case for $35,000 before it went before the jury.

 

Kelly O'Connell, IBLS Editor

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