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Obstacles to Defamation Recovery in Cyberspace
Obstacles to Defamation Recovery in Cyberspace User Forums
Mark Cenite
Ph.D. Student
School of Journalism and Mass Communication
University of Minnesota
_
Address inquiries to:
Mark Cenite
111 Murphy Hall
206 Church Street S.E.
Minneapolis, Minnesota 55455
612/379-4754
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ABSTRACT
The ancient tort of defamation may not survive in interactive cyberspace
user forums for the reasons that those forums appeal to many--they are easily
accessible, anonymous, international, high-volume, rapid-transmission, chaotic
forums. Existing statutory and case law favors system operators, a likely
target of suits. Courts are reluctant to leave the defamed without remedy, but
fortunately, an alternative remedy that maximizes freedom of expression, the
opportunity for reply, is inherent in the medium.
Obstacles to Defamation Recovery in Cyberspace
Page _
Like Halloween revelers who do, masked, what they would not do unmasked,
users insulated from face-to-face confrontation attack one another with abandon
in cyberspace. "Flaming"--slang for assailing another with vituperative
comments--is epidemic in cyberspace user forums like bulletin boards,
newsgroups, and lists. Statements that might earn defamation recovery if
published outside of cyberspace are everywhere in these forums. Traditional
definitions of defamation seem to characterize well many of these messages: "A
defamatory communication usually has been defined as one which tends to hold the
plaintiff up to hatred, contempt or ridicule, or to cause him to be shunned or
avoided."[1] Defamation is "that which tends to injure 'reputation' in the
popular sense; to diminish the esteem, respect, good-will or confidence in which
the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings
or opinions against him."[2] The ease with one can retaliate against those
with whom one disagrees doubtless makes many post in haste what they would not
post after further reflection. Scores may read one's scathing comments.
Comments delivered in a moment of rage are not simply spoken and forgotten, but
may be preserved for enormous audiences.[3]
Cyberspace is not always a mannerly place, but the harm of defamation is
more serious than bad manners. The potential for rumors, accurate or not, to
spread quickly and result in reprisals against their subject is enormous. An
eighteen-year old University of Maryland student posted a message to at least
eleven Internet newsgroups accusing a woman of mistreating her teenage
daughter.[4] The student had never met the girl and was merely repeating
rumors.[5] The message provoked outraged calls to the family and a police
investigation of whether the girl was mistreated.[6] The potential for lost
income resulting from the online circulation of defamatory messages is
staggering. One can easily envision false rumors, circulated in cyberspace,
causing stock prices to plummet before the rumors can be denied.
Courts have been forced to balance First Amendment interests in free flow
of information with their solicitude toward allowing recovery for damage to
reputation. The medium in which the alleged defamation circulates may appear to
have little bearing on whether recovery should be permitted, but cyberspace
presents new high obstacles to defamation recovery. In Part I, I consider
potential obstacles to defamation liability that hold regardless of whether the
defendant is a system operator or the person posting. In Part II, I turn to
obstacles to recovery against system operators particularly, the most likely
targets of suits. In Part III, I conclude by arguing that a "self-help"
remedy--the opportunity for reply--a remedy "inherent" in cyberspace user
forums--may be the only remedy available to the defamed in cyberspace. Note,
crucially, that my arguments here mainly concern defamatory material in the
interactive user forums of cyberspace--not in cyberspace "genres" that are not
interactive, such as web sites, or in materials that are "published," in static
form, online. Traditional defamation law is arguably more applicable in
non-interactive genres, though some obstacles to recovery, discussed in Part
I(C), arise there as well.
I. Obstacles to Recovery That Apply to System Operators and Other Online
Defendants
Several features that may make public forums in cyberspace appealing may also
make defamation recovery less likely. Among these are wide access, within the
United States and internationally; colorful postings of opinion; and anonymity.
A. Wide Access to Cyberspace May Undermine Credibility
If anyone with Internet access may post to a huge audience, then perhaps few
posts will be taken seriously. Perhaps few posts will even be read in some
high-volume forums, like lists. Users may choose to turn to other sources of
entertainment and information, rather than reading countless postings of dubious
veracity. If user forums continue to be places where users may post freely--and
as stories of users duped by baseless postings proliferate--the Internet's
reputation for veracity may be annihilated. In a medium where users take what
they read with a grain of salt, plaintiffs will be unable to prove harm--a
requirement for defamation recovery. Today, with cyberspace still novel to
many, some may be confused about the veracity of messages. Brock Meeks, editor
of Wired Magazine, said of the Internet:
[I]t's kind of like the fax machine was in its early days, when
everybody would race to the fax machine when something came in
because it had a sense of urgency. Of course, now we just let our
faxes pile up and usually end up trashing them, but for some reason,
electronic mail or something that you receive via the Internet has
this air of urgency and authenticity that's still not understood.[7]
It may not be long before the Internet is as pass as the fax machine. If a
stranger on the street were telling passers-by rumors, probably few would
believe or act upon those statements without verifying them. The analogy may be
appropriate for cyberspace. In widely accessible environments, users may
develop appropriate skepticism.
Moreover, expectations for veracity in cyberspace may be low because we want
them low. Low expectations of credibility may be a price worth paying for the
freedom to say whatever we want. And being whoever we want, for whomever will
listen, has value, even if one's fantasy is limited to cyberspace.
B. Hyperbole and Opinion May Not be Actionable
Because of First Amendment concerns, the Supreme Court has barred defamation
recovery when no reasonable person would believe alleged defamatory remarks
because they are hyperbolic. When the tenor of a flame war or negative posting
is hyperbolic, and it usually is, defamation recovery may be unlikely, for the
Court is solicitous of protecting colorful expression. In Greenbelt Cooperative
Publishing Assn., Inc. v. Bresler,[8] a real estate developer had negotiated
with the city council for a zoning variance on his land, while simultaneously
negotiating to sell other land the city. A newspaper published articles stating
that some people had characterized the developer's negotiating position as
"blackmail."[9] The Court found that no reasonable reader could find that the
word "blackmail" implied the developer had committed the actual crime of
blackmail, so liability could not be premised on a false allegation of the crime
of blackmail.[10] The Court in Bresler analogized to cases in which it held
that the First Amendment precluded recovery for emotional distress when an ad
parody "could not reasonably have been interpreted as stating actual facts about
the public figure involved,"[11] and to a case in which it held that the use of
the word "traitor" in a literary definition of a union "scab" was not basis for
a defamation action under federal labor law, because the word was used "in a
loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and
imaginative expression of the contempt felt by union members."[12] The Court
emphasized, however, that the published reports of what some referred to as
"blackmail" were "accurate and full"--so much so that "even the most careless
reader must have perceived that the word was no more than rhetorical hyperbole,
a vigorous epithet used by those who considered [the developer's] negotiating
position extremely unreasonable."[13] Potential defamation defendants in
cyberspace may not always be as careful to accompany their colorful expressions
with full accounts of the behavior they criticize--accounts so full that they
leave no doubt as to the hyperbolic nature of the language used. Nonetheless,
in many cases, Bresler may be a bar to defamation recovery for postings rich in
"lusty and imaginative" expressions.
Another related obstacle to defamation recovery arises because many statements
that users post in cyberspace are opinions. In Milkovich v. Lorain Journal,[14]
the Court ruled that expressions of opinion with no probably false factual
connotation are not defamation. The Court cautioned that there is no "wholesale
defamation exemption for anything that might be labeled 'opinion,'" and that the
words "I think" offered no talismanic protection from liability.[15] The Court
said that there is no real difference between the statements "In my opinion John
Jones is a liar" and "Jones is a liar."[16] Both statements are actionable,
because they can be proved false if the speaker did not really think that Jones
lied, but published the statements anyway.[17] However, the statement, "In my
opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of
Marx and Lenin" is not actionable because "it is a statement of opinion relating
to matters of public concern which does not contain a provable false factual
connotation . . . ."[18] Many flame wars could be defended by analogy to this
example; one regularly sees users accusing one another of abysmal ignorance for
their ideas. The Court protects such statements in the interest of "assuring
that public debate will not suffer for lack of 'imaginative expression' or the
'rhetorical hyperbole' which has traditionally added much to the discourse of
this Nation."[19] The Court added that it will consider the tone of the
language, and it said that "loose, figurative, or hyperbolic language" and "the
general tenor of the article" could negate the impression that the author was
seriously maintaining facts at issue.[20] Such considerations militate against
finding defamation liability for hyperbolic online exchanges.
C. Anonymity, Protean Identity, and a Global Network
Even if posted messages are read, and one suffers reputational loss,
cyberspace presents other obstacle to recovery--an obstacle that arises whether
material is posted in an interactive forum or elsewhere in cyberspace. Today,
anyone can be whoever she wants. Now on America Online, the most popular system
operator, creating a new identity is as easy as creating a username. At least
once, however, America Online has given law enforcement officials access to some
mailboxes.[21] Whether United States courts will again authorize the
penetration of anonymity for any purpose, including defamation cases, remains to
be seen. Anonymous remailers provide further, higher obstacles to American
authorities.[22] Sending key-encrypted messages through chains of anonymous
remailers may make penetrating anonymity impossible.
Who appears to be one person online may be many RL ("real-life") persons;
and several online personas may originate from one RL person. The possibility
of protean, multiple identities in cyberspace presents mind-boggling legal
challenges. Imagine, for instance, that "NetGuy" provides pornographic material
online for pay. NetGuy is in RL a collective of ten women and men, whose
membership has changed over the last five years. Online, Netguy is represented
by a photograph of one young man, and "he" interacts with customers. Imagine
that a user circulates rumors that NetGuy is a child molester in RL. NetGuy's
business begins to fail. NetGuy sues for defamation. A former member of the
collective was once convicted of a sex crime against a minor. NetGuy's accuser
claims a truth defense. What outcome? Problems of group libel are complicated
when they arise offline. Possibilities for even greater complexity abound
online, in forum where identity and truth may be more complicated and
rapidly-shifting than existing law can accommodate.[23]
Another obstacle to defamation recovery that arises whenever legal issues
in cyberspace are considered is the limited role of United States law in a
global network. The limited success of nations and international lawmaking
bodies in resolving life-and-death issues warrants skepticism that they will
make international agreements regarding jurisdiction for civil suits in
cyberspace. Even when U.S. courts could subject foreign defendants to their
jurisdiction, would plaintiffs be willing to raise such potentially expensive
and risky suits? The lowest common denominator among nations' defamation laws
may have the greatest chance of enforcement. That certainly is not the United
States' complicated blend of common and constitutional law. Some American
lawyers' belief that enforcing U.S. defamation law is even a possibility in
cyberspace may reveal their hubris and provincialism.
II. Obstacles to Recovery Against System Operator Particularly
Because plaintiffs may be unable to identify and gain jurisdiction over
individuals who defame them, and because many defendants would be unable to pay
large damages, the logical target for the defamation suits is system operators,
some of whom have "deep pockets." To date, the issue in two major cyberspace
defamation cases has been whether a system operator is liable for defamatory
statements that were uploaded or posted by others. The underlying issue in both
cases was whether to classify a system operator as a publisher or distributor, a
distinction that derives from defamation cases with bookstores as defendants.
In a little-known provision of the Communications Decency Act of 1996, titled,
"Protection for 'good samaritan' blocking and screening of offensive material,"
Congress said, "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."[24] This provision is not among those provisions
of the act whose constitutionality has, at this writing, been challenged.[25]
Any defamation plaintiff may challenge the provision's constitutionality in
federal court. A final ruling on the standard to be imposed on system operators
may be distant. I now turn to the two major cases which motivated the
Congressional determination, and the arguments that may help us predict a
Supreme Court ruling on the issue.
A. Cubby and PRODIGY
In Cubby, Inc. v. CompuServe, Inc.,[26] the system operator, CompuServe,
was not held liable for defamatory statements in a daily newsletter that it
uploaded. Though the forum was not one of the user-dominated forums that are
our focus here, the case addresses the issue of classifying system operators.
The court cited New York common law for the finding that CompuServe was a
distributor rather than a publisher: "With respect to entities such as news
vendors, book stores, and libraries, . . . New York courts have long held that
vendors and distributors of defamatory publications are not liable if they
neither know nor have reason to know of the defamation."[27] The court then
turned to First Amendment law, and found that requiring that a distributor have
knowledge of the contents of a publication before imposing liability is "deeply
rooted in the First Amendment," which prevents courts from imposing strict
liability on distributors.[28] The Court had reasoned in Smith v. California
that
'Every bookseller would be placed under an obligation to make
himself aware of the contents of every book in his shop. It would be
altogether unreasonable to demand so near an approach to
omniscience.' And the bookseller's burden would become the public's
burden, for by restricting him the public's access to reading matter
would be restricted. If the contents of bookshops and periodical
stands were restricted to material of which their proprietors had
made an inspection, they might be depleted indeed.[29]
The analogy of the system operator to a bookstore seems appropriate, but too
weak. The practical constraints of screening material posted online seem even
more daunting than the practical constraints of screening books in a bookstore,
because of the pacing and volume of information flow in cyberspace.
The Cubby court did not address the applicability of its decision to system
operators fulfilling other roles, such as gateway, content provider, database,
or bulletin board. Thus the Cubby court did not rule that all system operators
would be considered distributors, rather than publishers, of information on
bulletin boards and other forums where users post. Regarding bulletin boards, a
publisher standard of liability would seem to exact impossible requirements of
system operators. Among the main advantages of electronic bulletin boards is
that they provide the ability to communicate instantaneously with a large number
of other users. The advantages of such forums--volume and speed--are the
practical burdens that make screening for defamation so daunting. Screening for
defamation involves determining which statements may harm reputation,
determining which of those are false, and then screening out the false
statements. Though electronic screening for certain words is possible,
screening for defamation presents unpleasant choices. Screening out all
messages that, at first reading, might possibly harm reputation, would leave
little for users to discuss. Such screening might strangle the medium. The
alternative, screening out false statements, seems almost impossible if bulletin
boards are to resemble their current form. Screening out false statements would
require no less than fact-checking departments like those operating at major
magazines. The cost could be staggering. The New Yorker's legendary
fact-checking department employed sixteen checkers in 1994.[30] Fact-checking
is a time-consuming process. Fact-checking takes people, exercising judgment,
looking up facts and making telephone calls. It is difficult to imagine how the
process could be accelerated to enable the rapid exchanges possible in
cyberspace today. If screening were attempted, potentially defamatory
statements whose truth a bulletin board's employees could not immediately verify
would have to be suppressed, delayed, or posted at the risk of incurring
liability.
Despite the difficulties of screening for defamation, the court in the
unreported decision in Stratton Oakmont, Inc. v. PRODIGY Services Company[31]
found that system operators shall not always be considered distributors, even of
bulletin boards. Crucial to the court's finding that PRODIGY was a publisher
were findings that PRODIGY held itself out as a family-oriented computer network
with content guidelines, and that it exercised editorial control over the
content of its bulletin boards through electronic software screening programs
and board leaders who could delete material.[32] Because of the editorial
control that PRODIGY attempted to exercise, the court found that PRODIGY could
not be held to be a mere distributor, defined as a "passive conduit" of material
that could not be found liable in the absence of fault.[33] Instead, the court
found that PRODIGY exercised sufficient editorial control over its bulletin
boards to render it a publisher with the same responsibilities as a newspaper.
The court took pains to note that it did not differ with the court in Cubby in
finding that bulletin boards should generally be regarded as analogous to
bookstores and libraries, but noted that PRODIGY's "policies, technology and
staffing decisions"[34] mandated the finding that it was a publisher.
The defendant Interactive Services Association (ISA), in its amicus brief
advocating rehearing of the case, argued that much precedent weighs against the
PRODIGY decision. The ISA emphasized that publishers select material for
publication with "specific and actual knowledge of its contents," and have the
practical opportunity to "examine the material, evaluate the reputation and
reliability of the author, and conduct appropriate fact and source investigation
prior to publication."[35] Citing the sheer volume and rapid pace of message
exchange on bulletin boards, the ISA argued that a system operator can perform
none of these functions on electronic bulletin board messages that third parties
post.[36] The ISA noted that several courts have not required distributors to
check the truthfulness of messages circulated using several technologies,
including print and telegraph.[37] Nor did a court find that a network
television affiliate broadcasting a network program had to check truthfulness of
the broadcast.[38] Moreover, the ISA pointed out that a medium's guidelines for
limiting the transmission of obscenity have never been used to justify imposing
upon it a publisher standard of liability. For instance, even though a printer
eliminated what it deemed "nudity, profanity, and vulgarity" from printed
material, a federal court ruled that it did not have the additional
responsibility of testing the truth of statements submitted by independent
authors.[39]
B. Market Forces Are Unpredictable
One may wonder if the court in PRODIGY, in an attempt to maintain cyberspace's
current freedoms, imposed publisher liability to make unbearable the costs of
erecting controls like PRODIGY's. The court disavowed this rationale when it
said that those who fear that the decision "will compel all computer networks to
abdicate control of their bulletin boards[] incorrectly presume[] that the
market will refuse to compensate a network for its increased control and the
resulting increased exposure [to liability]."[40] Apparently, the court
envisioned an island within cyberspace that was different from the largely
uncontrolled atmosphere that prevails today. There, users weary of encountering
false information could find bulletin boards with editorial control similar to a
newspaper's. To answer the question of whether there is a market for bulletin
boards that act as a publishers, other questions must be answered first. How
much money are users willing to pay to use an fact-checked bulletin board? How
much accuracy are users willing to exchange for the freedom of instantaneous
high-volume traffic in ideas? Users may have to pay considerably higher fees
for a bulletin board to employ staff to screen for possibly defamatory content,
and (presuming the law allows defamation recovery in user forums) to absorb the
cost of litigation and damages in the occasional defamation suit, or to absorb
the cost of liability insurance. Users might also face substantial delays in
receiving or posting messages that must be fact-checked. How much money users
will pay, and how much delay they will tolerate, are empirical questions about
which I can only speculate here. The markets involved are so new that
predictions seem risky, but current trends are discouraging. Many are
predicting that current market pressures will force monthly access fees
down.[41] But market forces may change. Users fooled by false statements in
cyberspace today may be willing to pay more--in fees, and in speed of
communication--to avoid being fooled again. And advertising on a system
operators' pages may help offset the cost of liability insurance.
If courts follow the congressional ruling that system operators not be
considered publishers, and disregard PRODIGY, bulletin boards may continue to be
the free forums they are today. Even if courts follow PRODIGY, the
technological and cost constraints that publisher liability would impose on a
rapid-paced, high-volume forum may force computer networks to abdicate control
of bulletin boards; fact-checked bulletin boards may be an illusory alternative.
Defamation plaintiffs may have no recourse but self-help, a remedy to which we
return.
C. The First Amendment Defamation Cases May Limit Liability of System
Operators
If courts rule that system operators are publishers, at least in some contexts,
or if courts analogize them to publishers, those courts must apply a complicated
line of First Amendment media cases that began with New York Times v.
Sullivan.[42] Strong arguments against imposing defamation liability on system
operators can be drawn from those cases. The Supreme Court has in those cases
curtailed defamation liability without fault in the interest of protecting the
dissemination of ideas.
A principal distinction that courts applying the First Amendment defamation
cases must draw is whether the plaintiff is a public official, public figure, or
private figure. This distinction can be enormously complicated. At a general
level, a public official applies "at the very least to those among the hierarchy
of government employees who have, or appear to the public to have, substantial
responsibility for the control over the conduct of government affairs."[43] A
public official holds a government position of such "apparent importance that
the public has an independent interest in the qualifications and performance of
the person who holds it."[44] The Court ruled in New York Times that a public
official can only recover damages for defamatory falsehood relating to official
conduct when she proves that the statement was made with "actual malice."[45]
Actual malice is knowledge that the defamation was false or was published with
reckless disregard of whether it was false or not.[46] The plaintiff bears the
burden of proving actual malice with "convincing clarity."[47] The Court
subsequently extended the New York Times "actual malice" standard to public
figures, defined as those who are "intimately involved in the resolution of
important public questions or, by reason of their fame, shape events in areas of
concern to society at large."[48] In Gertz v. Robert Welch, Inc., the Court
ruled that private citizen who are not public officials, and are not public
figures for all purposes, may be public figures with respect to a particular
controversy.[49] Some plaintiffs are neither public figures generally nor with
regard to a particular controversy. For such private figures, "so long as they
do not impose liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster of defamatory
falsehood injurious to a private individual."[50] To collect punitive damages,
however, a private individual must show actual malice.[51] Finally, a plurality
of the Court found in Dun & Bradstreet v. Greenmoss Builders, Inc., that in all
the previous cases, the speech involved expression "on a matter of public
concern,"[52] but that because speech on matters of "purely private" concern is
of less First Amendment concern, "the state's interest [in reputation]
adequately supports awards of presumed and punitive damages--even absent a
showing of 'actual malice.'"[53]
If the First Amendment cases tell us nothing else, they allow two predictions.
First, the Court seems likely to follow its precedents and require plaintiffs to
prove system operators' fault before imposing defamation liability--perhaps
higher levels of fault for cases public figures and speech of public concern. A
finding of fault is a very high barrier to recovery, given the technological
constraints of fact-checking. Second, given the Court's long history of
balancing interests in the dissemination of ideas against interests in
protecting reputation, it seems likely that the Court will be loathe to see
defamed plaintiffs without remedy. The Court has made it clear that it is
solicitous of protecting reputation. It said in Gertz that "First Amendment
protections shall not leave no remedy to the defamed."[54] It said in Hepps
that
the danger of self-censorship was a valid, but not the
exclusive, concern in suits for defamation: The need to avoid
self-censorship by the news media is . . ., not the only societal
value at issue . . . [or] this Court would have embraced long ago the
view that publishers and broadcasters enjoy an unconditional and
indefeasible immunity from liability for defamation.[55]
The Court added that, "Any analysis must also take into account the 'legitimate
state interest underlying the law of libel [in] the compensation of individuals
for the harm inflicted on them by defamatory falsehood.'"[56] The Court even
said in Time, Inc. v. Firestone, that it sought the "appropriate accommodation
between the public's interest in an uninhibited press and its equally compelling
need for judicial redress of libelous utterances."[57]
III. Reply, The Inherent Self-Help Remedy
Given the defamation rulings, courts seem stuck. Imposing the publisher
standard of liability would impose seemingly impossible fact-checking demands on
a system operator. But the Supreme Court has indicated its reluctance to leave
injured parties without any possible remedy. Fortunately, there is a remedy
that is perhaps more readily available in cyberspace user forums than in any
existing medium: access for a reply. If one is defamed on a newsgroup or on a
list, one can post a reply. One can defend oneself real-time on a bulletin
board. The reply may reach much of the audience who saw the alleged defamation,
especially if the forum has many regular users, or the reply is posted quickly.
One may post a reply on the Internet as soon as one becomes aware of another's
false posting. The reply may be as prominently posted as the alleged
defamation, unlike corrections in newspapers, which are often less prominently
displayed. Indeed, there is no page one in many user forums, but only an
ongoing dialogue. The reply is in the words of the aggrieved party, and she can
introduce new material, so that rather than merely correcting false information,
she can further debate.[58] When a plaintiff who is a public official or public
figure takes on a media defendant, the Court requires that plaintiff to show a
higher degree of fault than a private plaintiff in part because public officials
and figures have media access in which to reply. In cyberspace, everyone with
Internet access may have such access. In user forums, access is, in the words
of one commentator, "inherent in the medium."[59] So is the opportunity for
reply. Thus, cases involving alleged defamatory material may be resolved out of
court. The advantages of resolving disputes involving false statements outside
of the legal system are clear. Such disputes may be resolved quickly, perhaps
so quickly that damage to reputation is avoided altogether. The right of reply
is available to plaintiffs who would be unable to afford attorneys' fees for a
defamation suit. The right of reply eliminates the threat that huge damage
awards against Internet defendants may bankrupt them, or encourage them to
regulate expression--and encouraging free expression is the guiding principle of
First Amendment law.
In Miami Herald Publishing Company v. Tornillo,[60] the Court invalidated a
1913 Florida statute that allowed a right of reply to political candidates who
were attacked in the press. However, that ruling does not necessarily apply to
the right of reply in defamation cases. Jerome Barron, attorney for the
plaintiff and crusader for media access, notes that "In Tornillo, the right of
reply statute under consideration did not require that a reply be afforded only
if defamation were proven. Certainly the statute could have been given that
gloss. But we neither asked for that interpretation, nor did the Florida courts
provide it."[61] Therefore, contrary to some misreadings of the case, "Tornillo
did not deal with the validity under the First Amendment of a right of reply
statute directed at providing a remedy for defamatory attack."[62] More
importantly, the Court's rationale for ruling against a right of reply in print
media is of dubious applicability to cyberspace user forums, where the
opportunity for reply is inherent. The Court said, "Compelling editors or
publishers to publish that which 'reason tells them should not be published' is
what is at issue,"[63] and ruled that a right of access would be an "intrusion
into the function of editors."[64] The Court also said that "it is not correct
to say that, as an economic reality, a newspaper can proceed to infinite
expansion of its column space to accommodate the replies that a government
agency determines or a state commands the readers should have available."[65]
In Internet user forums, few operators have sought to exercise tight editorial
control, and I have argued that they cannot. And Internet user forums do not
face the practical and economic limits on space that newspapers do. The
dialogue in lists, newsgroups, and bulletin boards expands infinitely. The only
costs are to those users who are paying for service providers for online time,
and those users are free to log off after reading however much or little they
wish. Thus the Court's ruling against the right of reply in Tornillo has little
bearing to defamation in cyberspace user forums.[66]
The remedy of media access is not a perfect remedy. Even in user forums, where
timely reply is possible, there remains the possibility that the reply will not
"catch up with" the rumors. Indeed, the Court does not treat media access as a
perfect remedy in New York Times and its progeny; despite their access to media,
public figures can still be defamed through actual malice of media defendants.
But because locating and gaining jurisdiction over defamation defendants may be
difficult or impossible when anonymity and international access are common, and
because screening for defamation may be an impossible burden on system
operators, self-help--the opportunity for reply--may be the only practical
remedy in cyberspace. If courts deem self-help a sufficient remedy in some
cyberspace forums, they will have largely abandoned the tort of defamation
there. Abandonment of defamation in cyberspace would surely please tort
reformers who have proposed alternative remedies, rather than damages, in
traditional media.[67]
If courts refuse enforcement of defamation law in cyberspace interactive
forums, vigorous debate, and flame wars, will continue. Users may or may not
pay attention. At least sometimes, false rumors will circulate. The aggrieved
will have access to reply to those rumors. A slight risk of uncompensated harm
will be the price of that freedom. Perhaps courts will require system operators
to post notices that users are assuming that risk. The risk may be acceptable,
for the stakes are so high. Media ownership is increasingly concentrated in an
ever-smaller number of corporations' hands. Most people have no easy media
access. Cyberspace is a comparatively free forum--in Ralph Nader's words, "the
lowest-entry-barrier mass-communications system in history."[68] A forum where
people who are not public figures or members of the press can express their
views freely seems more and more vital. The Court in New York Times raised this
issue in another context, when it decided not to discourage editorial
advertising because it did not wish to "shut off an important outlet for the
promulgation of information and ideas by person who do not themselves have
access to publishing facilities--who wish to exercise their freedom of speech
even though they are not members of the press."[69] Cyberspace user forums may
be such outlets, and the access inherent in them may eliminate the need for
imposing defamation law there. The result may be chaotic. But as a court said
in holding some provisions of the Communications Decency Act of 1996
unconstitutional, "Just as the strength of the Internet is chaos, so the
strength of our liberty depends upon the chaos and cacophony of the unfettered
speech the First Amendment protects."[70]
[1] Prosser and Keeton on Torts 773 (5th ed. 1984).
[2] Id. (footnotes omitted).
[3] Compare the following:
The promise of the virtual neighborhood has proved far-fetched
at best. How could it be otherwise when the communicants are
faceless and voiceless, many writing under assumed names?
Facelessness brings out the beast in people. As exhibit A, consider
that the first verb cyberspace contributed to the language was "to
flame," meaning to singe someone's eyebrows with an obscene or
derogatory message. Flaming has become the on-line sport of choice;
whole sectors of the Internet are given over to the most putrid
insults. A curse muttered on the street disappears into the air. A
flame echoes on, to be read by millions. The information
superhighway may yet rise to its lofty promise. But as of now, its
most pronounced accomplishment has been to chisel into stone trash
what would better have been left to disappear.
Brent Staples, Beastly Manners in Cyberspace, New York Times
Oct. 13, 1994, at A:26.
[4] Scott Bowles & Todd Shields, Internet Message Prompts Call for a Student
Code, Wash. Post, Feb. 15, 1996, at B1.
[5] Id.
[6] Id.
[7] Interview with Brock Meeks, All Things Considered, National Public Radio,
Transcript # 2124-6, Feb. 15, 1996.
[8] 398 U.S. 6 (1970).
[9] Id. at 13.
[10] Id.
[11] Id. (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)).
[12] Id. (citing Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974)).
[13] Id. at 13-14.
[14] 497 U.S. 1 (1990).
[15] Id. at 19. - correct?
[16] Id.
[17] Id.
[18] Id. at 20.
[19] Id. (citing Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398
U.S. 6).
[20] Id. at 21.
[21] Peter H. Lewis, Company Says Electronic Mail Was Opened to Find
Pornography, at A:16.
[22] When Finnish authorities were investigating allegations that a user posted
materials taken from a Church of Scientology computer, they sought to seize the
computer that is the most-used anonymous remailer, anon.penet.fi in Finland.
Johan Helsingus, the man who supports anon.penet.fi, gave the name of the user
they sought. Daniel Akst, Postcards From Cyberspace: The Helsinki Incident and
the Right to Anonymity, Los Angeles Times, Feb. 22, 1995.
[23] For discussion of postmodern identity online, see Sherry Turkle, Life on
the Screen: Identity in the Age of the Internet (New York: Simon and Schuster,
1995).
[24] 47 U.S.C. _ 230(c)(1) (1996).
[25] Only the provisions of the Act relating to obscenity and child pornography,
__ 223(a)(1)(B), 223(a)(2), 223(d)(1), and 223(d)(2), have thus far been
challenged, and ruled unconstitutional, in American Civil Liberties Union v.
Reno, 929 F.Supp. 824, 883 (E.D. Pa., 1996) (appeal pending).
[26] 776 F.Supp. 135 (S.D.N.Y. 1991).
[27] Id. at 139 (citing Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp.
228, 235 (1981).
[28] 776 F.Supp. at 139.
[29] Id. at 139-40 (citing Smith v. California, 361 U.S. 147, 152-53).
[30] Antony Shugaar, Truth Or Consequences, Columbia Journalism Rev., May/June
1994, at 14. Back in 1981, People Magazine spent $800,000 a year on its
fact-checking department, which employed eighteen people plus free-lancers.
Does Saul Bellow Stand on His Head? Ask a Fact Checker, Wall St. J., Dec. 15,
1981, at 1.
[31] 1995 WL 323710 (N.Y. Supp.).
[32] Id. at *2-*3.
[33] Id. at *3.
[34] Id. at *5.
[35] Memorandum of Law of Interactive Services Association in Support of Motion
for Leave to File Submission as Amicus curiae and Motion for Renewal and
Reargument of Defendant Prodigy Services Company (Aug. 29, 1995) (hereinafter
ISA Memo).
[36] Id.
[37] Misut v. Mooney, 124 Misc. 2d 95, 99, 475 N.Y.S.2d 233, 235-36 (Sup. Ct.
Suffolk Co. 1984) (printer); O'Brien v. Western Union Telegraph Co., 113 F.2d
539, 542 (1st Cir. 1940) (telegraph company).
[38] Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 931-32 (E.D. Wash. 1992).
[39] Misut v. Mooney, 475 N.Y.S.2d at 235-36.
[40] ISA Memo at *3.
[41] Interview with Ken Auletta, Bob Huber, and Peter Lucky, All Things
Considered, National Public Radio, Feb. 2, 1996; Peter H. Lewis, A Boom for
On-Line Services, New York Times, July 12, 1994, at D:1 (predicting limited
growth for the next several years unless monthly fees for online services drop
below $10).
[42] 376 U.S. 254 (1964).
[43] Rosenblatt v. Baer, 383 U.S. at 85, 86.
[44] Id.
[45] 376 U.S. at 279-80.
[46] Id. at 280.
[47] Id. at 285-86.
[48] Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).
[49] 418 U.S. 323, 352 (1974).
[50] Id. at 347.
[51] Id. at 349.
[52] 472 U.S. 749, at 757 (1985).
[53] Id. at 761.
[54] 418 U.S. 344.
[55] 475 U.S. 767, 773 (citing Gertz, 418 U.S. at 341). See also Rosenblatt v.
Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).
[56] Id. (citing Gertz, supra, 418 U.S., at 341, 94 S.Ct., at 3008.)
[57] 424 U.S. 448, 456 (1976) (emphasis added).
[58] Compare Jerome A. Barron, The Right of Reply to the Media in the United
States--Resistance and Resurgence, 15 Hastings Comm/Ent L.J. 1, 1 (1992)
(discussing how the right of reply in traditional media offers these advantages
over the right of retraction).
[59] Edward A. Cavazos, Computer Bulletin Board Systems and the Right of Reply:
Redefining Defamation Liability for a New Technology, 12 Rev. Litig. 231, 247
(1992).
[60] 418 U.S. 241, 1 Med. L. Rptr. 1898 (1974).
[61] Barron, supra, at 5.
[62] Id.
[63] 1 Med. L. Rptr. 1904.
[64] Id.
[65] Id.
[66] Though it is encouraging that the Court upheld the constitutionality of a
right of reply under the Federal Communication Commission's personal attack and
political editorial rules in Red Lion Broadcasting Company v. Federal
Communication Commission, 395 U.S. 367 (1969), that ruling too bears only
indirectly on online defamation, because the Court based its ruling on the
scarcity of broadcast frequencies. "Where there are substantially more
individuals who want to broadcast than there are frequencies to allocate, it is
idle to posit an unabridgeable First Amendment right to broadcast comparable to
the right of every individual to speak, write or publish." Id. at 388.
[67] See, e.g., the proposed Uniform Correction or Clarification of Defamation
Act (1993) (proposing remedy of correction); Annenberg Washington Program,
Proposal for the Reform of Libel Law (1988) (proposing remedies of retraction
and reply); Marc Franklin, Good Names and Bad Law: A Critique of Libel Law and
a Proposal, 18 U.S.F. L. R. 1 (1983) (proposing retraction or "restoration" or
reputation remedies); James H. Hulme, Vindicating Reputation: An Alternative to
Damages as a Remedy for Defamation, 30 Am. U. L. R. 375 (1981) (proposing a
declaratory hearing on falsity of statements and a declaratory judgment).
[68] T. R. Reid and Brit Hume, Bulletin Boards Make for Cut-rate Media Moguls,
Chi. Trib., Dec. 8, 1991, at C8.
[69] 376 U.S. at 266.
[70] American Civil Liberties Union v. Reno, 929 F.Supp. 824, 883 (E.D. Pa.,
1996) (appeal pending).
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