A Tangled Web We Weave

The choice between having nothing nice to say and saying nothing at all, at least on the web, is becoming increasingly easier by the day. Say nothing at all.

When the 1996 Communications Decency Act (CDA) was struck down to allow indecent, as opposed to obscene speech, the effect – unintended or otherwise – was to give online service providers immunity from the actions of its customers. While the act was created with obscenity in mind, the CDA was part of the larger Telecommunications Act of 1996, and that piece of law says that your service provider is not liable should you knowingly or unknowingly commit libel on your Web site.

However, if you knowingly or unknowingly commit libel on your website, you could be in deep trouble. On the other hand, if you suspect somebody has committed libel against you online, you have the same recourse as if the person had defamed you in the morning paper. In other words, just because the Web seems like a no-rules environment, don’t think for a second that you’re not protected.

Elements of libel

Any fourth-year journalism student can tell you that libel is comprised of the following elements:

• Defamation – includes accusations of criminal behavior, moral turpitude or professional incompetence. It can be direct or inferred defamation.
• Publication – includes a printed newspaper article, a Web page or a campus flyer. Technically, it can include graffiti, something written in a bathroom stall or doodling on a napkin.
• Damage – includes damage both actual and perceived, and is not necessary to show libel although it helps to assess award. The reason showing damage is not necessary in libel cases is that by printing something shown to be defamatory, the damage is assumed.</li>
• Identification – includes both individual and group identification, when the group is under 15 people. When the group is between 15-100 people, defamation should be shown to point to each person in the group. If the group is more than 100 people strong, there is no identification. For example, claiming that all piano players are clinically insane will not result in a successful libel suit; however, claiming that all the musicians at your local church are insane just might.
• Fault – includes a couple of degrees of fault, the first of which is assumed if there is libel. However, a higher degree of fault can be found should the writer have published defamatory information knowingly or with reckless disregard. And, according to a famous 1964 court case, journalists can be found guilty of libel if their actions are found to be malicious.
• Truth – includes an interpretation of whether the alleged defamation is actually true. If the alleged defamation turns out to be true, then there is no libel.

What’s the truth?

Truth is that there is a lot of gray area as it pertains to what constitutes libel on the Web. Online business proprietors not only concern themselves with what’s printed about their ecommerce stores and their products, but also themselves. The potential that somebody sometime will publish something online that casts you, your company or your product in something less than the best light is high. Your best bet is to play nicely, work with the individual and the ISP to resolve any differences or concerns amicably and with diplomacy.

Previous libel cases

On the other hand, while the odds of winning a libel case are notoriously slim; if you have been libeled, take heed – many have come before.

Here are a few plain-English explanations of some famous online libel cases:

• Cubby v. CompuServe, 1991

  Plaintiff says that CompuServe should be held liable for alleged defamatory bulletin board postings in a forum called Rumorville, available on CompuServe’s system. The plaintiff’s argument was that, as the publisher of the alleged defamatory information, CompuServe should be held accountable. The Court disagreed primarily because CompuServe did not have any procedures in place for monitoring posts regularly.

• Stratton-Oakmont and Porush v. Prodigy, 1995

  Prodigy gets sued by investment banking firm Stratton- Oakmont and its president, Daniel Porush, claiming that anonymous postings on Prodigy’s Money Talk bulletin board were libelous. According to a summary found on the Eff.org website, “The statements claimed that Stratton Oakmont committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page, Ltd.”

  Because Prodigy had a policy of regularly monitoring message board posts, the court decided that the company had editorial control of its forum, which was moderated by a volunteer. The court, therefore, held that Prodigy was liable for the content of the forum’s messages.

• Stephen J. Barrett, et al. v. Ilena Rosenthal

  Illena Rosenthal posts a controversial opinion piece, written by somebody else, to a Usenet news group. The article was critical of a Canadian-based doctor, Terry Polevoy.

  Polevoy sued. The case was dismissed. But then, a California Court of Appeals overruled the dismissal, ruling that people could sue Internet publishers for what others write on their sites, a departure (or re-interpretation, depending on your point of view) from the federal Telecommunications Act of 1996. The California Supreme Court is reviewing, but the case’s implications have bloggers, in particular, extremely nervous.

Because blogging typically involves some original writing interspersed with others’ work and ideas, complete with links, bloggers are concerned that anything less than a victory for Rosenthal would leave them open for liability.