Australia, won $28,000 in a lawsuit against an anthropologist who had
made allegedly defamatory comments about the archaeologist on an
Internet bulletin board.
An April article in the Wall Street Journal reported that Brock Meeks,
publisher of an electronic newsletter called Cyberwire Dispatch, was
sued for libel by the Suarez Corporation after Meeks made on-line
statements that a mail order marketing program promoted by Suarez was a
"scam" and that Mr. Suarez, the company's president, was a "slick
direct-mail baron." According to the company's attorney, Mr. Suarez "was
very disturbed and distressed by the publication" of the article, which
Meeks had boldly entitled "Cybersucker."
And so it goes. Of course, the law of defamation is of ancient origin.
Its purpose is to provide a remedy for those whose reputation has been
unfairly sullied by publication of false statements about them. As the
aforementioned news stories make clear, the new media and technology of
the information age are providing new contexts into which the law of
defamation is expanding. In this article we will examine the parameters
of, and tensions within, the law of defamation in the United States.
First of all, a statement must be published before it can be the subject
of a defamation lawsuit. If your boss should taunt and insult you to
your face in a private office at work, your feelings may be severely
hurt. You may become ill as a result. You might have a moral (or even
legal) claim against the boss and your employer if the tongue-lashing
turned out to be inappropriate or unjustified.
However, under these circumstances your boss could not conceivably have
defamed you; if no one else heard the remonstrance, the statements were
never published. Your reputation cannot be damaged by a private
communication between you and your critic. And the law of defamation is
intended to protect your reputation, which exists (if at all) in the
minds of the other members of society--not in your own mind. Defamation
law is therefore not directly concerned with your personal feelings
(justified or not) about the substance of the communication.
Consider the differences between using electronic mail and using a
bulletin board in this respect. "Flaming" someone in a private e-mail
message has quite different social (and therefore legal) consequences
from doing so on a bulletin board that will be read by hundreds of
people. The writer's use of the latter forum brings far more serious
potential consequences, for an unfavorable bulletin board posting may
cause other people to avoid the person who is subject of the
communication. If the communication concerns the business or profession
of the subject, then such avoidance may have serious economic
consequences.
An important issue arises at this point: are bulletin board operators,
too, liable for defamatory statements posted by the users of those
bulletin boards? A New York federal court ruled in Cubby v. CompuServe
(1991) that CompuServe was not legally responsible for information that
was disseminated over its network. Judge Leisure found that CompuServe
had "little or no editorial control over the publication's contents" and
that the on-line service "neither knew or had reason to know of the
allegedly defamatory statements." The judge compared CompuServe to a
bookstore, reasoning that a bookstore owner is not responsible for the
content of every book that the store sells.
Next, the statements must be defamatory before they can serve as the
basis for this particular form of legal action. That is, for one to be
defamed, the statements must be of a kind that would make other people,
who hear or read the statements, think less of one in some relevant
respect. Thus, at least one court has held that it is not defamatory for
a person to mistakenly report that a certain person is dead, even though
the subject of the story is still quite alive. (The plaintiff in that
case apparently felt it would not suffice to simply respond with a
variation on Mark Twain's famous comeback.) Death is a natural
occurrence; whatever a person's views on former President Nixon, for
example, I daresay that no one's opinion of him has been lowered because
of his recent death.
Social perception of defamation changes with the times. For instance,
calling someone a "Papist" was held not to be defamatory while James I
was on the English throne, whereas a contrary result was reached during
the rule of Charles II. The term was also considered defamatory during
the period between the abdication of James II and the accession of
William and Mary, when a "Papist" charge could prove dangerous to the
subject of the statement.
Next, the statements must be false. Without doubt, a published true
statement may prove painful and embarrassing. An utterance may be rude,
unwarranted, and entirely inappropriate for the speaker to make, and
under some circumstances, a true statement might even subject its
publisher to another type of legal claim (such as invasion of privacy).
Certainly, many true statements are published that damage the reputation
of their subjects, sometimes irreparably and catastrophically; as Oscar
Wilde so pointedly observed, it is justice, not injustice, which really
stings.
However, in our law, a true statement cannot be the basis of an action
for defamation. In most cases, however, as a matter of legal procedure,
truth is treated as an affirmative defense, and a publisher relying on
that defense is required to demonstrate the truth of the statement.
Therefore, it may be more accurate to say that statements harmful to
reputation will create liability if published, unless the publisher can
establish their truth.
In addition, statements that cannot reasonably be interpreted as stating
actual facts about an individual are not sufficient as a basis for a
defamation action. Such nonactionable expressions of opinion may
include, based on the circumstances, epithets, vulgarities, and
profanities. It is often held that the ad hominem nature of such words
and phrases clearly distinguishes them as a form of rhetorical hyperbole
that cannot be reasonably understood as stating any facts or
information.
For instance, a Minnesota appellate court recently declared that while
the term "shitheads" is not complimentary in nature (no surprise here),
neither does it suggest any verifiable or falsifiable facts about
anyone. In contrast, and even more recently, the Wyoming Supreme Court
reversed a lower court's decision and reinstated a libel claim filed
against Hustler magazine by nationally prominent Wyoming attorney Gary
Spence. Hustler had found various and sundry ways to articulate its
claim that Spence was a "greedy, hypocritical asshole," including but
not limited to identifying him as Hustler's Asshole of the Month. (It
should be noted that a 1972 Illinois Court of Appeals case had held that
while calling an attorney an asshole might be objectionable, it was not
actionable defamation because it was not intended or reasonably
understood as an assertion of fact.)
Under traditional common law standards, defamation is known as a strict
liability civil wrong. That is, one who makes a defamatory statement
that turns out (to one's surprise) to be false is not ordinarily allowed
to escape liability by showing that one was diligent by making efforts
to ascertain the truth. In short, the traditional law is that
carefulness is simply not a defense; if you make a defamatory statement,
you take the risk that it may turn out to be false. However, in the
United States, the law of defamation has a constitutional dimension that
moderates this strict liability aspect. A moment's reflection will
reveal that the values enshrined in the First Amendment must at some
point come into conflict with the law of defamation. Accordingly, the
Supreme Court has limited the extent to which states can impose
liability without fault on defendants in the news media.
The famous 1964 Supreme Court case New York Times v. Sullivan gave
the landmark decision that established that the media have special
privileges to publish matters of public interest. During the 1960s civil
rights movement in the South, the New York Times published a political
advertisement that was sponsored and paid for in large part by the
Committee to Defend Martin Luther King. The advertisement, which
described the struggle against segregation in Montgomery, Alabama,
contained several factual inaccuracies, and Sullivan, the Montgomery
police commissioner, sued the newspaper for libel.
The Supreme Court held that, as a matter of First Amendment law, a
newspaper publishing factual material that is critical of a public
official must be immune from a libel claim unless the claimant can
establish that the publisher acted "with actual malice." The test of
malice required either that the publisher knew that statements were
false or that the publisher had serious doubts about the truth of the
statements but nevertheless acted with total disregard for any issues of
truth or falsity.
The First Amendment protection in the Sullivan case, which sets the
extremely high standard of "actual malice," has been extended to
immunize certain statements made by media defendants about public
figures as well as public officials. Media defendants who defame private
persons do not enjoy that high level of protection, although even in
this area the Supreme Court has declared the states must refrain from
imposing no-fault liability on the media.
The law of defamation therefore remains a powerful legal force in the
public and private arenas of electronic communication. Next issue's
column will continue the theme, giving a more detailed examination of
this legal action and introducing the related issues of privacy and
electronic communications.
This column provides only generalized and anecdotal discussion of legal
issues and should not in any way be construed as legal advice. Legal
problems are inherently complex and require specific attention to and
analysis of the particular facts. Never rely on a general article for
guidance in a particular case.