Defamation Tort State law so differs state to

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 (c) 2004 West Legal Studies in Business A Division of Thomson 1

1 st 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 (c) 2004 West Legal Studies in Business A Division of Thomson 2

2 nd 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 (c) 2004 West Legal Studies in Business A Division of Thomson 3

3 rd 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) (c) 2004 West Legal Studies in Business A Division of Thomson 4

4 th 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 (c) 2004 West Legal Studies in Business A Division of Thomson 5

Defenses • Truth • Absolute Privilege • Qualified Privilege (c) 2004 West Legal Studies in Business A Division of Thomson 6

Absolute Privilege – Furtherance of operations of government: judicial, legislative, and executive branches as they do their work (c) 2004 West Legal Studies in Business A Division of Thomson 7

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 (c) 2004 West Legal Studies in Business A Division of Thomson 8

Who is Liable for Defamation? • In non-internet defamation cases the court distinguishes among the following: – Common Carriers – Distributors – Publishers of the defamatory material (c) 2004 West Legal Studies in Business A Division of Thomson 9

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 (c) 2004 West Legal Studies in Business A Division of Thomson 10

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 (c) 2004 West Legal Studies in Business A Division of Thomson 11

Publishers of books, newspaper, television, radio can be liable • If they exercised control over the content (c) 2004 West Legal Studies in Business A Division of Thomson 12

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 (c) 2004 West Legal Studies in Business A Division of Thomson 13

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 (c) 2004 West Legal Studies in Business A Division of Thomson 14

Who is a Publisher? • Cubby, Inc. v. Compu. Serve, 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 • Compu. Serve hired Cameron Communications, Inc. (CCI) to monitor and control the Forum’s content in accordance with standards established by Compu. Serve (c) 2004 West Legal Studies in Business A Division of Thomson 15

Publisher? Continued…. – Plaintiff Chubby competed with Compu. Serv by developing Skuttlebut, a computer database designed to publish and distribute electronically news and gossip about the television and radio industries – Chubby sued Compu. Serve 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 – Compu. Serve said it had no control over content, that it was a distributor • Holding: – Compuserve had no control over content – not a publisher (c) 2004 West Legal Studies in Business A Division of Thomson 16

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 (c) 2004 West Legal Studies in Business A Division of Thomson 17

Publisher? Continued… • Stratton continued – Law: • Publishers are libel for defamation, distributors are not – Holding: • Prodigy controlled the board leaders, so it was a publisher (c) 2004 West Legal Studies in Business A Division of Thomson 18

Independent Contractor v. Employee • Independent Contractor runs the BB = no liability for employer • Employee = Respondeat Superior (c) 2004 West Legal Studies in Business A Division of Thomson 19

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. (c) 2004 West Legal Studies in Business A Division of Thomson 20

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 (c) 2004 West Legal Studies in Business A Division of Thomson 21

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 (c) 2004 West Legal Studies in Business A Division of Thomson 22

After Blumenthal • Carafano v. Metrosplash. com, Inc. • Operator of a website found to be a content provider and not protected by 230 (c) 2004 West Legal Studies in Business A Division of Thomson 23

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 (c) 2004 West Legal Studies in Business A Division of Thomson 24

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 (c) 2004 West Legal Studies in Business A Division of Thomson 25

SLAPP Suits • Strategic Lawsuits Against Public Participation – Mc. Donald 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 (c) 2004 West Legal Studies in Business A Division of Thomson 26

Other Countries • United Kingdom • Australia (c) 2004 West Legal Studies in Business A Division of Thomson 27

ISP Liability for Defamation? • Varies widely from country to country – – U. S. UK Japan Singapore (c) 2004 West Legal Studies in Business A Division of Thomson 28

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 (c) 2004 West Legal Studies in Business A Division of Thomson 29