Libel & Defamation in the Information Age

By Eric Eden

On the Internet, where abnormal behavior is the status quo, tempers
can flare in the heat of debate and word wars can last for days or
even weeks.  It's not uncommon for users to ridicule, harass or insult
those who disagree with them.

But if you damage someone's reputation by trying to embarrass them in
a public forum, you could be sued for libel or defamation.  After all,
there's no reason to assume that the messages you send through
cyberspace are immune from lawsuits.

"The Internet culture right now is for users to refute speech with
speech," says Dave Marburger, the attorney who represented Brock Meeks
in one of the first defamation lawsuits in the United States involving
the Internet.  "But as the Internet culture gets more diverse, users
will start refuting speech with lawsuits."

There have only been a handful of libel and defamation lawsuits filed
involving the Internet so far, but as the Net grows, the number of
lawsuits will probably increase.   If the few court battles that have
been decided involving libel and defamation on the Net are any
indication of how the law will be applied to the Internet in the
future, it's worth your time to learn what's libelous or defamatory on
the Internet and what's not.

Other users have the right to sue you for defamation if they can prove
you damaged their reputation or good name with false information.  You
can be sued for libel if another user can prove you have distributed
defamatory statements about them in a public area -- such as a news
group or mailing list.

In April of 1993 Gil Hardwick, an anthropologist in Australia, was
ordered by the Australian Supreme Court to pay David Rindos $40,000 in
damages because he defamed Rindos on an international mailing list.

After Rindos lost his job at the University of West Australia,
Hardwick posted a message on an international disscussion group that
suggested Rindos was fired because he was a bully and had sexually
molested a local boy.

Rindos filed a defamation lawsuit against Hardwick because he felt the
message had hurt his chances of finding a new job.  In a letter to
Rindos's attorney, Hardwick wrote "Let this matter be expedited and
done with....I can do nothing to prevent it, lacking any resources
whatsoever to defend myself."  Like most people, Hardwick didn't have
the money to hire a lawyer or finance an expensive legal battle.

"He (Rindos) suffered a great deal of personal hurt because of the
message," said Supreme Court Justice David Ipp in the West Australian.
"The damages award must compensate him and vindicate his reputation to
the public."

The Internet is an informal forum and people often write personal things
about other users, but you can be held accountable in court for making
libelous or defamatory remarks in public forums just like Hardwick was.

"We know that as the Internet grows, there will be more and more
lawsuits involving libel and defamation," says attorney David H.
Donaldson, editor of Legal Bytes, an electronic magazine that
discusses legal issues involving computers and networking.   "The only
question is if the number of cases will grow steadily or if there will be
an explosion of lawsuits all at once."

Anybody can sue you for libel or defamation if they think you damaged
their reputation, but if you can prove what you say is true, chances are
that you won't end up in court.

"Make it clear when you are stating your opinion," says  Donaldson,
"Always state the facts that your opinions are based on just to be safe.
You probably won't lose a libel or defamation lawsuit if you can back up
what you write with solid facts."

For example, Brock Meeks, a full-time journalist who also distributes his
own electronic magazine, avoided losing a defamation lawsuit largely
because he could prove an article that he sent over the Net was true.

Meeks was sued by Suarez Corporation Industries in April of 1994 for
writing an investigative story about the company and its services in his
electronic newsletter -- the CyberWire Dispatch.  Meeks had no libel
insurance, no publishing company backing him up and a lot of legal
fees to cover.  (His lawyer charged him $200 an hour.)  The only thing
Meeks had was his house -- and he didn't want to sell it to pay off a
lawsuit.

Meeks defended his article in numerous posts on the Net, "All of my
facts were rock solid.  Although the article was delivered with a fair
amount of attitude, I don't believe that I'm in dangerous waters," he
wrote.

Benjamin Suarez, owner of Suarez Corp., filed the suit because he felt
that Meeks had damaged his reputation and hurt his business by
saying he was "infamous for his questionable direct marketing scams,"
and saying "he (Suarez) has a mean streak."  To back up his opinion,
Meeks cited accusations made by the Washington state attorney
general's office concerning Suarez's direct marketing practices.

In August of 1994 Suarez Corp. made Meeks an offer he couldn't
refuse.  They agreed to settle the case for $64 -- to cover
administrative court costs.   The company refused to comment on why
they agreed to settle the lawsuit.

If the case had gone to trial, Meeks's lawyer thinks Meeks would have
been able to win anyway.  "The defendants in libel or defamation suits
involving the Internet have enhanced First Amendment rights," says
Marburger.  "The plaintiff has to prove actual malice.  In other words,
the plaintiff has to show that the defendant made false statements or
was negligent."  Marburger's only regret is that they didn't get to set
that precedent in court.

Although the Meeks case doesn't really mean anything in the law
books, it does show that if you're responsible and can prove what you
write on the Net is true, people will be less likely to take you to court.  If
you just make something up and your sources aren't reliable, you could
lose big like Hardwick did.

"You have to follow the same rules that journalists do if your going to
write and distribute controversial material about other people," says
Donaldson.

The increasingly common phenomenon of online forums creates the
possibility for you to reach large audiences, but it also creates the
ability for you to commit defamation or libel -- something that an
ordinary citizen didn't have to worry about in the past.  Before the
growth of online communication, people who didn't work in the media
usually didn't have to worry about libel or defamation. "Libel laws apply
to the Internet the same way they do to newspapers and TV stations,"
explains former Federal Communications Commissioner Nicholas
Johnson, a professor at the Iowa University school of law. "The same
technology that gives you the power to share your opinion with
thousands of people also qualifies you to be a defendant in a lawsuit."

Like a newspaper or TV station, you are responsible for making sure
the material you distribute -- or broadcast -- over the Internet is not
libelous or defamatory.  Lani Teshia-Miller never meant to defame
anyone, but when she took over the distribution of a tattoo FAQ she
almost ended up in court.  The rec.arts.bodyart FAQ she inherited
contained a lot of generalizations based on contributions from
unattributed sources.  Although she listed her name on the FAQ, she
didn't edit out several defamatory statements.  One review of a San
Francisco tattoo artist in the FAQ said, "He's getting old and having
problems with his eyesight.  His quality is really bad and he hurts
people."

After the artist hired a lawyer and threatened to sue, Teshia- Miller
changed the FAQ's wording to reflect a more factually-based and
less-hysterical view.   The review now says, "His eyesight is not what it
used to be."

After the FAQ was changed and Teshia-Miller apologized, the artist
dropped the lawsuit.  "It turned out to be a good experience for me,"
said Teshia- Miller.  "I'm  a lot more careful about what I allow on the
artist list, and I now have a very long disclaimer at the beginning of the
FAQ."

Every person you write something negative about won't sue you for
defamation or libel, they might flame you or just try to set the record
straight by replying to the message.  But if you post false information
about another user and disgrace them in public, they have the right to
take you to court -- and they could win a big settlement if they can
prove you were negligent.

Medphone, a Fortune 500 company that manufactures medical
instruments, has filed a $200 million lawsuit against Prodigy user Peter
DeNigis.  Medphone filed a "systematic program for defamation and
trade disparagement" lawsuit against DeNigis after a stockholder
reported that he was making several negative posts about Medphone a
day on Prodigy's Money Talk Forum. DeNigis, a former Medphone
stockholder, lost more than $9,000 last year by selling off his
investment in the company. In one post DeNigis wrote, "My research
indicated the company is really having a difficult time.  No case, no
sales, no profits and terrible management. This company appears to be
a fraud.  Probably will cease operations soon."

Although the accusation that Medphone is a "fraud" is very serious --
and potentially defamatory -- DeNigis might be able to win the lawsuit if
he can prove what he wrote is true in court.

"The Medphone case is a clear indication that libel and defamation is
something for Internet users to think about," says Johnson.

There are court cases in progress right now that will decide if access
providers such as Prodigy, America Online and Compuserve are
responsible for defamatory remarks broadcast over their services, but
there is no legal ambiguity about whether individual users can be sued
for making defamatory or libelous statements. Individual users are
responsible for making sure the information they distribute is not
libelous or defamatory.

The Internet has made world wide, instantaneous communication easy.
The average user now has the power to be heard by hundreds or even
thousands of other users, but in terms of libel and defamation, the Net
is not a new world of freedom. The reality is that libel and defamation
laws are enforceable in the virtual world just like they are in the real
world.

                         # # #


You may distribute this article freely for non-profit purposes.  Otherwise
contact the author (Eric Eden -- R3eje@vm1.cc.uakron.edu) for reprint
permission.

                    ------------------------------

Date:    Tue, 10 Jan 1995 10:47:24 -0600
From:    Henry Itkin 
Subject--Re: Libel & Defamation in the Information Age

Several clarifications are needed and will, I think, ease people's minds a bit.


Eric Eden  r3eje@vm1.cc.uakron.edu  wrote, in part:

> Libel & Defamation in the Information Age
> By Eric Eden
>
> Other users have the right to sue you for defamation if they can prove
> you damaged their reputation or good name with false information.

Absolutely right.  It is the _plaintiff_ who must prove that a wrong has been
done.  See further mention below.

> You can be sued for libel if another user can prove you have distributed
> defamatory statements about them in a public area -- such as a news
> group or mailing list.

Partially right.  The post need _not_ be in a "public" area, however.  You can
libel someone through private e-mail.  If even _one person_ (beyond the
defendant and the plaintiff) is exposed to the defamatory statement, a libel
may have occurred.

> Anybody can sue you for libel or defamation if they think you damaged
> their reputation, but if you can prove what you say is true, chances are
> that you won't end up in court.

...

> For example, Brock Meeks, a full-time journalist who also distributes his
> own electronic magazine, avoided losing a defamation lawsuit largely
> because he could prove an article that he sent over the Net was true.

As noted above, this is technically incorrect.  The defendant does _not_ have
to prove that the statement was true.  Instead the plaintiff must prove it was
_false_.  There's a big difference.  For one thing, if a lawsuit is truly
groundless, then the defendant isn't required to say anything in court.
Lacking proof of falsity, the lawsuit is dismissed.


> "The defendants in libel or defamation suits
> involving the Internet have enhanced First Amendment rights," says
> Marburger.  "The plaintiff has to prove actual malice.  In other words,
> the plaintiff has to show that the defendant made false statements or
> was negligent."

This really muddies an already-difficult concept.  For now, let's just say
that how much "fault" the plaintiff has to show on the part of the defendant
depends on how "public" a figure the plaintiff is
determined (by the court) to be.  If plaintiff is ruled a "public" person, then
in most states, the defendant will have a somewhat easier time of it.

Best to all.

Hank Itkin  (itkin@uni.edu)
University of Northern Iowa

                    ------------------------------

Date:    Wed, 11 Jan 1995 10:41:11 EST
From:    Eric Eden 
Subject--Re: Libel & Defamation in the Information Age

On Tue, 10 Jan 1995 10:47:24 -0600 Henry Itkin said:

>> Libel & Defamation in the Information Age
>> By Eric Eden
>>
>> Other users have the right to sue you for defamation if they can prove
>> you damaged their reputation or good name with false information.
>
>Absolutely right.  It is the _plaintiff_ who must prove that a wrong has been
>done.  See further mention below.
>
>> You can be sued for libel if another user can prove you have distributed
>> defamatory statements about them in a public area -- such as a news
>> group or mailing list.
>
>Partially right.  The post need _not_ be in a "public" area, however.  You can
>libel someone through private e-mail.  If even _one person_ (beyond the
>defendant and the plaintiff) is exposed to the defamatory statement, a libel
>may have occurred.

Yes.  Libel could occur through private e-mail but the fact that it is
Private makes it a weaker case.  Most of the cases to date revolve around
messages that have been posted in public forums on Compuserve and Prodigy or
on mailing lists.


>> Anybody can sue you for libel or defamation if they think you damaged
>> their reputation, but if you can prove what you say is true, chances are
>> that you won't end up in court.
>
>...
>
>> For example, Brock Meeks, a full-time journalist who also distributes his
>> own electronic magazine, avoided losing a defamation lawsuit largely
>> because he could prove an article that he sent over the Net was true.
>
>As noted above, this is technically incorrect.  The defendant does _not_ have
>to prove that the statement was true.  Instead the plaintiff must prove it was
>_false_.  There's a big difference.  For one thing, if a lawsuit is truly
>groundless, then the defendant isn't required to say anything in court.
>Lacking proof of falsity, the lawsuit is dismissed.

The legal experts I interviewed for this story felt that even though the burden
of proof is on the plaintiff's shoulder, defendants are less likely to lose
in court if they can prove what they said is true.  Especially if the plaintiff
does have some evidence.  If a plaintiff knows the defendant can prove what he
or she wrote was true they will probably settle or drop the case.

My personal opinion is that you should be able to prove -- beyond a reasonable
doubt -- that what you write is true.   If you can't prove it, you should do
some more research or ommit the statement.  Not only for ethical reasons but
also because when your giving information to a large audience you should be
sure what you are writing is true.  However, technically you are correct.

>> "The defendants in libel or defamation suits
>> involving the Internet have enhanced First Amendment rights," says
>> Marburger.  "The plaintiff has to prove actual malice.  In other words,
>> the plaintiff has to show that the defendant made false statements or
>> was negligent."
>
>This really muddies an already-difficult concept.  For now, let's just say
>that how much "fault" the plaintiff has to show on the part of the defendant
>depends on how "public" a figure the plaintiff is
>in most states, the defendant will have a somewhat easier time of it.

The public figure issue is very complex and that's why I decided not
to tackle it in this story.  However, I do believe that Marburger's
statement is correct.

Thanks for your honest critique,

Eric Eden
r3eje@vm1.cc.uakron.edu
EricEden@AOL.COM