Defamation
• Tort = State law, so differs state to state
• Based on common law, so very similar
– Slander – spoken
– Libel - written
– Directed at goods or services =
Disparagement
• Must show four elements to prove case
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1st Element of Proof Required
• A fact made about another’s reputation or
business
– Can be by direct evidence, innuendo,
insinuation, reference
– Has to be understood to be about the plaintiff
– No cause of action if plaintiff is deceased
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2nd element
• Made to a third party
– E-Mail is so accessible that plaintiff would
have a hard time proving he didn’t know
others would see it
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3rd element
• Must show some degree of fault or
negligence
– if public figure, must show actual malice
(reckless disregard of the truth)
– if regular person, must show did not use
reasonable care (negligent)
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4th element
• Must result in damages
– with libel there is the presumption of damages
– with slander, must prove, unless slander per se
• accusing another of committing a serious crime
• accusing another of having a loathsome or communicable
disease
• injuring another in their business or profession
• in some state, accusing a woman of being unchaste
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Defenses
• Truth
• Absolute Privilege
• Qualified Privilege
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Absolute Privilege
– Furtherance of operations of government:
judicial, legislative, and executive branches as
they do their work
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Qualified Privilege
• Rebuttal, within reason
• Reference for a job or other position
• Newsworthiness - when talking about a
public figure or official
– the press have this privilege to tell us about
the famous
– for defamation, have to prove they told an
untruth with actual malice
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Who is Liable for Defamation?
• In non-internet defamation cases the court
distinguishes among the following:
– Common Carriers
– Distributors
– Publishers of the defamatory material
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Common Carriers are not Liable
for Defamation
– Common Carriers, telephone and telegraph,
have been held to not have any control over
the content of the material and therefore are
not liable
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Distributors, vendors or bookstores
are not liable for defamation
• Smith v. California: proprietor of bookstore
not liable for obscenity because didn’t
know what was in the book
– Can’t be liable for obscenity unless the vendor
knows what the content is (not that it is
obscene)
– So can’t be liable for defamation if don’t know
what is in the book
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Publishers of books, newspaper,
television, radio can be liable
• If they exercised control over the content
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Are Online Service Providers
Common Carriers?
• Are they common carriers? distributors,
publishers?
• Lunney v. Prodigy: Prodigy was just a
conduit, not a publisher of profane and
threatening messages
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What is a Publication in the
Internet Environment?
• It’s in the Cards, Inc. v. Fuschetto: Question:
was a computer subscription service accessible
anytime by its users a periodical? and therefore
a publication?.
– Court said no because
• it did not appear on a regular basis, posting was random
communication
• analogous to posting a written notice on a public bulletin
board
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Who is a Publisher?
• Cubby, Inc. v. CompuServe, Inc.
– Facts:
• Provides a service: CIS = General information or “electronic”
library
• CIS subscribers can access over 150 special interest
“forums” comprised of bulletin boards, interactive chat rooms,
and databases = “Journalism Forum”
• Rumorville, USA is a daily newsletter available on a forum
providing reports about broadcast journalism and journalists
• CompuServe hired Cameron Communications, Inc. (CCI) to
monitor and control the Forum’s content in accordance with
standards established by CompuServe
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Publisher? Continued….
– Plaintiff Chubby competed with CompuServ by developing
Skuttlebut, a computer database designed to publish and
distribute electronically news and gossip about the television and
radio industries
– Chubby sued CompuServe and Rumorville for publishing
defamatory remarks about Scuttlebut on the Forum.
• Law
– First Amendment says that a person has to have control over
content to be a publisher
– CompuServe said it had no control over content, that it was a
distributor
• Holding:
– Compuserve had no control over content – not a publisher
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Publisher? Continued
• Stratton Oakmont, Inc. v. Prodigy Services Company
– Facts:
• Prodigy owns and operates a computer network with bulletin boards
that can be accessed by its subscribers
• Prodigy did exercise control over content of messages posted on its
BBs in trying to be responsible
• 1994 statements about plaintiffs appeared on “Money Talk” bulletin
board
• Prodigy hired managers or board leaders to monitor and edit the
content of the publications published on Money Talk.
• Defamatory remarks about Stratton, a securities investment banking
firm and its president
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Publisher? Continued…
• Stratton continued
– Law:
• Publishers are libel for defamation, distributors are not
– Holding:
• Prodigy controlled the board leaders, so it was a publisher
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Independent Contractor v.
Employee
• Independent Contractor runs the BB = no liability
for employer
• Employee = Respondeat Superior
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CDA Section 230
• No provider or user of an interactive computer
service shall be treated as a publisher or
speaker of any information provided by another
information content provider.
• Zeran v. AOL
• Sidney Blumenthal v. Matt Drudge and AOL, Inc.
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Zeran
• Facts:
– Defamatory info about Zeran and the Oklahoma bombing posted
on AOL BB
– AOL did not close account of defamer
– Radio station urged listened to protest to Zeran
– Newspaper published that it was a hoax
• Law
– Zeran sued AOL for defamation on its BB
• That AOL knew of content of messages on BB
• AOL defended on grounds of CDA section 230
• Holding:
– Suit filed two months after 230 became effective – AOL not liable
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Blumenthal
– Facts:
• Drudge is author of electronic gossip column
• Drudge contracted with AOL to make his column available to
AOL members
• AOL could remove content
• AOL advertised that it was rumor and gossip
• Defamation about Blumenthal – spousal abuse
• AOL publisher?
– Law:
• State defamation law versus CDA
– Holding
• CDA gives absolute immunity even if ISP knows of content
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After Blumenthal
• Carafano v. Metrosplash.com, Inc.
• Operator of a website found to be a content
provider and not protected by 230
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Anonymous Speech and
Defamation
• Usually protected by freedom of speech
• What about anonymous defamation?
– Can plaintiffs force revelation of authors?
• Recording Industry Association of America v. Verizon
Internet Services, Inc.
– To discover identity of subscriber who had downloaded
600 songs in one day
– Freedom of speech does not extend to copyright
infringement
– Verizon appealed
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Ct. Established Principles to
Subpoena Identity of
Anonymous Defamer
• Dendrite International Inc., v. John Doe
– In order to subpoena the identity of the
anonymous defendant
• Post a notice of the subpoena addressed to the
defendant (john doe) on the relevant message board
• Provide the court with the content of the alleged
defamatory statements
• Establish a prima facie case of defamation exists
against the defendant
• Court must then weigh harm of defamation against
freedom of remaining anonymous
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SLAPP Suits
• Strategic Lawsuits Against Public
Participation
– McDonald v. Paton
•
•
•
•
Anti-SLAPP law applied to cyberspace
Defendant operated an interactive town forum Web site
Residents of the “town” could post their opinions
Plaintiff was a town selectman and candidate for
reelection who was referred to as a “Gestapo agent”
• Plaintiff lost election and brought SLAPP suit
• Defendant sought to dismiss under the anti-SLAPP
statute – won
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Other Countries
• United Kingdom
• Australia
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ISP Liability for Defamation?
• Varies widely from country to country
–
–
–
–
U.S.
UK
Japan
Singapore
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International Regulation of
Online Defamation
• Occurs in country where material is accessed?
– Ellis v. Time (1997)
• Act of State Doctrine applies
• Forum shopping by plaintiffs
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