Defamation is a major issue on the Internet, largely because of its widespread reach and its ability to conceal anonymous users. The basic issues underlying defamation on the Internet are almost identical to other areas such as television and the newspaper. Internet publication takes place when and where the offending material is accessed. Because defamation is determined by state law, the elements vary by jurisdiction.
What is Defamation?
Generally, to prove defamation, a plaintiff must demonstrate
- the statement was published
- the statement referred to the plaintiff
- the statement was defamatory
- the statement was false
- the defendant was either
- negligent in publishing the statement and the publication was a direct cause of actual damage to plaintiff’s reputation
- clearly and convincingly shown to have published the statement with knowledge of its falsity or with reckless disregard for its truth or falsity
When Does Defamation Occur Online?
There are several areas where defamation can emerge on the Internet, including:
- e-mail (including one to one e-mail, mailing lists and newsgroups) which can be forwarded to others
- through the world wide web, including web pages and web sites
E-mail from employees can be a concern for a business in which the company’s name appears in the employee’s e-mail address (email@example.com). Aplaintiff may be more likely to sue the business, since it has deeper pockets than the employee.
Online Defamation & the Law
The law to date has dealt primarily with service provider liability, in part due to their deep pockets. For a good overview of defamation issues involving the Internet, see Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). This case involved a statement published in the “Drudge Report,” available through America Online, accusing White House Advisor Sidney Blumenthal of covering up abuse of his wife. The court granted America Online’s Motion to Dismiss because, as an Internet service provider, it was shielded from defamation liability. According to § 230C of the Communications Decency Act, “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,” 47 U.S.C. § 230 (c)(1). This case contains an interesting discussion of defamation concerns arising from publication on the Internet and makes a clear distinction between the original party responsible for posting defamatory messages and the Internet service provider who may serve as nothing more than a conduit for the dissemination of the information.
Two prominent pre-Communications Decency Act cases dealing with service providers are Cubby Inc. v CompuServe., 776 F. Supp. 135 (S.D.N.Y. 1991), and Stratton Oakmont Inc. v Prodigy Services Co., 1995 N.Y. Misc. LEXIS 229, 23 Media L. Rep. 1794 (Sup. Ct. N.Y. 1995). In Cubby, defamatory material was published on a forum provided by CompuServe. The Court held that CompuServe would not be liable, because it acted as a distributor of a forum edited by another party and not as a publisher of the statements. CompuServe argued in Cubby that it had no opportunity to review the contents of the publications before they were uploaded onto the computer. It is important to note that a distributor generally must have some knowledge of the contents of defamatory material which it distributes before it will be held liable for defamation. The test laid down by the Court in Cubby was whether the provider “knew or had reason to know of the alleged defamatory statements.”
In Stratton, defamatory material was again published on the Internet and the service provider was sued for the information posted by its subscribers. Here, the Court found Prodigy liable as a publisher, not a mere distributor, because Prodigy exerted some form of editorial control of the information posted on its bulletin boards and it utilized an automatic software screening program. Unlike Cubby, the Court said that Prodigy was clearly making active decisions regarding the content of information published on bulletin boards. Prodigy was not successful at arguing that it simply could not control 60,000 daily messages posted through its service. The case is distinguishable from Cubby and post-Communications Decency Act cases however, in that it involved use of a former employee’s unretired access code. As such, Prodigy could arguably be liable under negligence theory.
The parameters of defamation claims relating to material posted by individuals on the Internet are still a largely unsettled area of law, particularly as defendants are often difficult to locate, thus deterring many potential lawsuits. As such, this area of the law involves uncertain rights and potential liabilities for individuals and businesses.