The idea behind defamation law is very simple. If and when the reputation of an identifiable third person is lowered by the communication from one person to one or more person/persons and where the communicator has no legal defense it is called defamation. Balancing of the right of a person to protect his reputation with free speech is aimed at the formation of the defamation law. Defamation law is divided into two viz. oral and published. "Comments or stories told at a party or meeting is called Oral defamation or 'slander'." 1. TV broadcasting or a newspaper article is published defamation also known as 'libel'. Libel defamation includes pictures and words also. Anything that badly affects the reputation of a person is defamatory.
If a comment takes a person into disrepute, contempt, or ridicule is very likely to be defamatory. Defamation consists of libel and slander. Libel is defamation by writing and slander by speaking. Ever since the printing press was invented libel caused more damage than slander as the written word remained permanent. But there is no much difference in the legal world, between libel and slander. "Defamation these days mostly involves libel, and writers of these modern days describe both libel and slander by the term 'defamation'."3 Often defamation actions are targeted at news media, but song, satire, artistic criticisms, paintings, photographs, cartoons, poems and novels also have been sued. To combat criticism through stop writs or to settle attack on personal privacy and other grievances defamation is usually used.
1. C. Counts; A.Martin. "Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier," Albany Law Review, 1996, vol 59, p.45
2. C. Counts; A.Martin, p.45
However when a plaintiff pursuing legal action against publisher of a libel, he is permitted to use terms of definitions and fault, and is exempted from the law as majority of cases have shown. But correct assessment so far have not been made on its liability on secondary parties using them. To understand the current position in the courts, we consider here three major court cases in 'cyber libel' liability, viz. Cubby v. CompuServe in 1991, Stratton Oakmont v. Prodigy in 1995, and Zeran v. America Online of 1996. Besides these three cases, many other litigation attempts have made court's opinion on internet libel cases clear.
Firstly let us analyze the case of Cubby violence CompuServe: Cubby, Inc. Vs. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y. 1991). One of the hundreds of independent, self operated forums of CompuServe caused damages to the plaintiff Cubby, Inc. And this is the first ever, published major case of Internet libel. A defamatory comment was posted about Cubby, Inc. In an electronic magazine called Skuttlebut by the journalistic form called Rumorville. As it is usually not the practice of CompuServe to review the contents of the publications before posting, the court considering them like an electronic book store or library, relieved them from facing the liability of a being a publisher. The United States Supreme Court in the case of Smith v. California made the judgment that if a distributor is to be charged with a case of defamation then he has to have information about the published materials before its publication itself.3 In earlier cases like Western Union Telegraph v. Lesesne, and N.Y. Times v. Sullivan, where the plaintiffs called for libel action against a carrier it was found that unless the carriers or distributors of publications have sufficient knowledge in advance of the libelous material they distribute, they cannot be held responsibile for libel.
3. Hermann, Richard. "Who is Liable for Online Libel?" St. Thomas Law Review, 1996. p.50
Again another network service provider having been relieved of their responsibility of the defamation liability is the case of Stratton Oakmont v. Prodigy too. Here also a company, for a public online forum making libelous remarks, sued a network service provider. "A Prodigy user had posted regarding Daniel Porush who was the president of Stratton Oakmont which was an investment securities firm, on Money Talk, which was a hugely read forum relating to financial affairs." 4. The forum stated Porush as an almost proven criminal and Stratton Oakmont, Inc. As a cult of brokers who either got fired or they lied.
Porush filed suit against the network Service Provider, after reading this posting on Prodigy, claiming them liable for the libelous claims of this poster. Prodigy too claimed the status of a distributor, in turn, similar to the case of Cubby vs. CompuServe. But prodigy must be classified more as a publisher than a distributor, according to Stratton Oakmont. Because, Prodigy had made it clear for all its users that in order to ensure a family atmosphere online it retained the right to edit, remove, and filter messages in its system. Hence the court awarded damages to Stratton Oakmont classifying Prodigy as a publisher.
Taking the third case, Zeran vs. America online, we can see here of how a user became victim of a filthy hoax. Glorifying the Oklahoma City Bombing, Kenneth Zeran, the plaintiff, had his address and phone number posted in connection with advertisements for souvenirs (T-shirts, mugs etc.). Getting Zeran's personal information a user of America online whose identity was not known, has posted these ads throughout AOL. As a result of this hoax, Zeran had many disturbing threats and had also repeated harassments over post and telephone. 5
4. C. Counts; A. Martin. "Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier," Albany Law Review, 1996, vol 59, p.47
5. Charles, Nesson, David, Marglin "The Day the Internet Met the First Amendment: Time and the Communications Decency Act," Harvard Journal of Law and Technology, Fall 1996. p.55
Claiming negligence from AOL's side, in spite of complaints and postings he had registered with AOL, he sued AOL. Through the protection the CDA (communications Decency Act of 1996) provides to Internet service providers, AOL claimed immunity. The final decision was in favor of America Online. The final judgment was that the interactive computer service providers cannot be found guilty when a third person would be the culprit in posting statements which are of a defamatory nature. In fact, the findings of Stratton Oakmont, Inc. Vs. Prodigy, was reversed here. 6
It was not just fair comment, but defamation was made with malicious intent, is to be shown by the concerned public figure, including candidates and office bearers. Unless there is malice, damages to slander may be limited to actual damages. "Libel per se or slanders per se are statements accusing of having a feared disease, of having committed a crime, or being unable to perform his duty, and can more easily lead even to punitive damage recovery by the person harmed or at least large amount of money awarded by the court." 7 There is provision in most states, for a printed retraction of defamation and lawsuit is allowed only if such an admission of an error is not there. And they are settled outside court in many cases. The legal battle between former Good Hope FM presenter Nigel Pierce and the comedian and local TV personality Soli Philander settling outside court is an example for this.
6. Charles, Nesson, David, Marglin. "The Day the Internet Met the First Amendment: Time and the Communications Decency Act," Harvard Journal of Law and Technology, Fall 1996. p. 57
7. Fatima, Schroeder. "Comedian Wins Sex and Celebs-Case Against DJ" Cape Times, August, 11, 2002, p.3
Philander sued against the SABC, Pierce and station manager Paul Kay for R150 000 about one year after the controversial Good Hope FM breakfast show, in which Pierce asked those of whom who had sex with celebrities to phone in response one unidentified caller, phoned in claiming as having unplanned sex with Philander two months earlier in a Cape Town hotel room. Philander claiming that they had control over the content of the radio and over discussions with callers, and also claiming the statement made by the caller as false, sued Pierce and Kay. The parties settled outside the court, though the civil case hearing was to be heard in the Cape High Court. The settlement was made an order of the court by Justice Jock Comrie. The defendants had to pay Philander an amount undisclosed, according to the order, as damages for what he and his family suffered as a result of the matter broadcast, and the legal costs Philander had met. 8
Cost, complexity and selective application are only a few of the several fundamental flaws in the legal systems. As a result the defamation law is not able to protect most people, but it hinders free speech. Even if you win the defamation case, you will be losing tens of thousands of dollars as legal fees. And you will end up paying a lot besides the fees, if you lose. Most people do not sue for defamation because of the large costs, including the cost of legal…