Law 897: The Law in Cyberspace

Defamation on the Internet

October 25, 2006 — Joshua Albertson

I. Defamation Primer

Recall fondly the last week of your torts class. Then read the Electronic Frontier Foundation's bloggers FAQ on online defamation law, which provides some basic information about the elements of a defamation claim and how the law has evolved online.

II. Intermediary Immunity and Section 230 of the Communications Decency Act (CDA)

As you may remember from our discussion of Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court struck down much of the CDA as unconstitutional. However, section 230, "Protection for private blocking and screening of offensive material," has survived and flourished.

o The statute

o Read 47 U.S.C. § 230, focusing especially on 230(c), the "Good Samaritan" clause. Consider Congress's stated policy objectives in 230(b). Are these objectives at all contradictory? Are they still relevant?

o The case law

o Read Zeran v. AOL, No. 97-1523 *pdf*, 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1999). This remains the benchmark application of section 230.

o Since Zeran, courts have continued to apply section 230 broadly. See, e.g., Blumenthal v. Drudge, No. 97-1968, 992 F. Supp. 44 (D.D.C. 1998) (finding AOL immune from liability for content Drudge supplied to AOL subscribers via a licensing agreement). (Optional, but note Judge Friedman, "The accusations are explosive.")

o In 2004, a California appeals court attempted to rein in section 230, declining to grant immunity to a defendant who forwarded a defamatory email written by a third-party to a listserv. The court held that a re-publisher of defamatory information should not have immunity "if he or she knows or has reason to know of its defamatory character." Barrett v. Rosenthal, 9 Cal. Rptr. 3d 142, 152. The California Supreme Court, however, is expected to reverse. Read The Recorder article, Calif. High Court Cold to Liability in Online Speech. See also Eric Goldman's blog entry. Full text of the decision here (optional).

III. Distinguishing Online Content from Offline Content

Outside of this statutory immunity for third-party content, the same defamation rules generally apply to online content as to offline content. Should they?

o Read quickly Diane Rowland, Griping, Bitching and Speaking Your Mind: Defamation and Free Expression on the Internet,110 Penn St. L. Rev. 519. (Note: The article is a breezy 20 pages. Don't get too caught up in the intricacies of the theories. Just focus on whether the nature of communication on the Internet is such that it necessitates different defamation laws.)

o Consider this statement by Delaware Supreme Court Chief Justice Steele: "Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely." Doe v. Cahill, 844 A.2d 451, 465 (Del. 2005) (holding that in order to unmask anonymous commenters, a plaintiff in a defamation action must meet a summary judgment standard). Is he right? Why does this matter? (Full text of the opinion here *pdf* (optional).)

o In O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. App. Ct. 2006), a California appeals court ruled that, for the purposes of protecting sources, online journalists are no different than offline journalists. Read the EFF article, "Huge Win for Online Journalists' Source Protection." Background from the EFF here (optional). Full decision here *pdf* (optional). Does this muddy the waters?

IV. Jurisdiction and International Concerns

In some parts of the world, most notably the United Kingdom and Australia, defamation laws are decidedly more pro-plaintiff than in the U.S. This can create tricky jurisdictional issues for creators of Internet content.

o Read paragraphs 1-56 of Dow Jones & Co. v Gutnick (2002) HCA 56 (Austl.).

o BREAKING: Earlier this month, the House of Lords relaxed the UK's libel laws as they apply to public figures. Read this New York Times article for background. The full text of the decision in Jameel v. Wall Street Journal Europe, [2006] UKHL 44, is here for the inspired (optional).

V. Today in Defamation

Defamation suits against bloggers and message board posters are on the rise. Read Laura Parker's article in USA Today.

o Recently, a Florida jury awarded $11.3 million in damages for defamatory comments posted at Fornits.com. The offending comments labeled the plaintiff a "crook," a "con artist" and a "fraud." More about that verdict and the reaction here.

o In March, an English man won £ 10,000 in damages for being called a "sex offender," "nonce," and "racist blogger" on a Yahoo! discussion site. It was the country's first award for defamatory comments posted in a chat room. More in this Guardian article.

o This spring, a U.S. district court in Pennsylvania held that Tucker Max, who runs an eponymous website, is not liable for defamatory comments written by anonymous third parties on his site's message boards. Dimeo v. Max, 433 F. Supp. 2d 523. Read this Eric Goldman's blog entry. Note, however, that the court did not directly address the issue of whether bloggers are responsible for defamatory third-party comments. Read Evan Brown's blog entry. Full text of the decision, No. 06-1544 *pdf*, is highly amusing and entirely optional.

Finally, a quick case study in how lawyers and bloggers interact on the bleeding edge of online defamation disputes: Does this Gawker post libel Ron Burkle? Burkle thought so. Check out his lawyer's cease and desist letter and later call for a "sarcasm-free" apology.

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