Defamation Law, Cyber Libel, and Free Speech Limits

Introduction to Defamation Law

The idea behind defamation law is straightforward. When the reputation of an identifiable third person is damaged by a communication from one person to one or more others, and the communicator has no legal defense, the act is called defamation. Defamation law aims to balance a person's right to protect their reputation against the principle of free speech. Defamation law is divided into two forms: oral and published. Comments or stories told at a party or meeting constitute oral defamation, also called slander. Television broadcasting or a newspaper article constitutes published defamation, also known as libel. Libel includes pictures as well as words. Anything that badly damages the reputation of a person is considered defamatory.

If a comment brings a person into disrepute, contempt, or ridicule, it is very likely to be defamatory. Ever since the printing press was invented, libel has caused more damage than slander, since the written word is permanent. There is, however, little practical difference in the legal world between libel and slander. Defamation today mostly involves libel, and modern legal writers often use the term "defamation" to describe both libel and slander. Defamation actions are frequently targeted at news media, but songs, satire, artistic criticism, paintings, photographs, cartoons, poems, and novels have also been the subject of lawsuits. Defamation is commonly used to combat criticism through legal threats or to address attacks on personal privacy and other grievances.

When a plaintiff pursues legal action against the publisher of a libel, he or she is permitted to rely on established definitions of fault, and most cases have shown that the majority of the liability falls on the primary publisher. However, correct assessments of liability for secondary parties — those who distribute rather than originate defamatory content — have not been consistently made. To understand the current position of the courts, this paper considers three major cases in cyber libel liability: Cubby v. CompuServe (1991), Stratton Oakmont v. Prodigy (1995), and Zeran v. America Online (1996). Besides these three cases, many other litigation attempts have clarified the courts' views on internet libel.

Landmark Cyber Libel Cases

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) is the first major published case of internet libel. One of the hundreds of independent, self-operated forums on CompuServe caused damages to the plaintiff, Cubby, Inc. A defamatory comment was posted about Cubby, Inc. in an electronic magazine called Skuttlebut by a journalistic forum called Rumorville. Because CompuServe did not typically review the contents of publications before posting, the court treated CompuServe like an electronic bookstore or library and relieved it of publisher liability. The United States Supreme Court, in Smith v. California, had established that a distributor can only be charged with defamation if it had advance knowledge of the libelous material. In earlier cases — Western Union Telegraph v. Lesesne and N.Y. Times v. Sullivan — courts found that carriers or distributors of publications cannot be held responsible for libel unless they had sufficient prior knowledge of the libelous material they distributed.

The case of Stratton Oakmont v. Prodigy similarly involved a network service provider sued over libelous statements made on a public online forum. A Prodigy user had posted messages on Money Talk — a widely read financial affairs forum — regarding Daniel Porush, president of Stratton Oakmont, Inc., an investment securities firm. The posting described Porush as an almost-proven criminal and characterized Stratton Oakmont as a firm of brokers who had either been fired or were dishonest.

Porush filed suit against Prodigy as the network service provider, claiming it was liable for the libelous statements of the poster. Prodigy, like CompuServe in the earlier case, claimed the status of a distributor rather than a publisher. However, the court determined that Prodigy must be classified as a publisher rather than a mere distributor. This was because Prodigy had explicitly informed all its users that it retained the right to edit, remove, and filter messages in its system in order to maintain a family-friendly online environment. Because Prodigy exercised editorial control, the court awarded damages to Stratton Oakmont, classifying Prodigy as a publisher.

The Zeran v. America Online Case and CDA Immunity

The third case, Zeran v. America Online, illustrates how an innocent person can become the victim of a malicious online hoax. An unknown AOL user posted advertisements purportedly glorifying the Oklahoma City bombing, using the plaintiff Kenneth Zeran's name, address, and phone number in connection with offers for offensive souvenirs such as T-shirts and mugs. As a result of this hoax, Zeran received numerous disturbing threats and suffered repeated harassment by post and telephone.

Zeran sued AOL, claiming negligence on AOL's part even after he had registered complaints with the service. AOL claimed immunity through the protection provided by the Communications Decency Act (CDA) of 1996. The court ruled in favor of America Online, holding that interactive computer service providers cannot be found liable when a third party is responsible for posting statements of a defamatory nature. In effect, the findings of Stratton Oakmont, Inc. v. Prodigy were reversed by this ruling.

Conclusion

Threat is the most common use of defamation law to suppress freedom of speech, and such threats are far more numerous than actual lawsuits. Many cases filed in court are dropped halfway and never reach trial. Publishers, unwilling to risk costly legal proceedings, block publication at the very first sign of a threat. The fear of being sued is ultimately more harmful than the threat itself, imposing a form of self-censorship. The fear of offending potential litigants causes many publishers and editors to remove anything controversial.

These problems are reduced somewhat by self-publication on the internet. An author can send email directly to recipients or set up a website, and while they can still be sued, the risk is comparatively lower than for large media corporations that represent attractive targets due to their financial resources. To conclude, for financially limited authors and speakers, defamation law is consistently unattractive as a means of redress, and pursuing it through to the end may often prove more detrimental than the original harm. A well-functioning defamation framework should protect individual reputation without becoming a weapon wielded by the powerful against freedom of speech.

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