Marty L. Sutcliffe
University of Iowa Cyberspace Law Seminar
Spring 2000
Professor Johnson
[Note: To save time -- mine, not yours -- there are links provided in this table of contents to some heading about every five pages or so through the text. That should enable you to bounce around through it, and back, with ease without requiring me to put a target/link on every heading. Note also that one of the reasons there are so few endnotes, as such, is that citations to most of the cases are provided within the text, in addition to which there is an extensive "Table of Authorities." It makes reference to page numbers which are indicated, in the left margin, throughout. It's possible this paper will be edited/formatted further in the future. For now, it's being made available as promptly as possible for class discussion April 19, 2000. -- NJ The Editor]
Table of Authorities. . . . . . . . . . . . . . . . . . . . . iii
Problems Under the Traditional Law. . . . . . . . . . . . . . . 1
Of and Concerning the Plaintiff . . . . . . . . . . . . . . . . 1
Harm to the Reputation in the Community . . . . . . . . . . . . 3
Published to a Third Party. . . . . . . . . . . . . . . . . . . 6
Specific Problems in Internet Defamation. . . . . . . . . . . . 8
The Jefferson/Hamilton Debate. . . . . . . . . . . . . . . . . 10
Due Process on the Internet. . . . . . . . . . . . . . . . . . 11
Current Remedies and Problems with Application to the Internet. . . . . . . . . . . . . . . . . . . . . . . . . 12
Some Current Internet Tailored Options Are Available . . . . . . . . . . . . 15
The Virtual Magistrate . . . . . . . . . . . . . . . . . . . . 15
Filtering/Banishment . . . . . . . . . . . . . . . . . . . . . 16
Netiquette/Mail Bombings/Ostracism and Other Self-Help Remedies. . . . . . . . . . . . . . . . . . . . . . . . 18
Internet Law Task Force. . . . . . . . . . . . . . . . . . . . 21
The Need for a Separate Federal Jurisdiction . . . . . . . . . 22
The Law Merchant Analogy . . . . . . . . . . . . . . . . . . . 22
Comity/Deference . . . . . . . . . . . . . . . . . . . . . . . 24
Federal Jurisdiction . . . . . . . . . . . . . . . . . . . . . 25
Separate Jurisdiction Impact on Defamation Law . . . . . . . . 27
Identities . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Communities. . . . . . . . . . . . . . . . . . . . . . . . . . 29
Harm to Reputation . . . . . . . . . . . . . . . . . . . . . . 29
Different Remedies . . . . . . . . . . . . . . . . . . . . . . 30
Right to Reply . . . . . . . . . . . . . . . . . . . . . . . . 31
Banishment with a Wider Scope. . . . . . . . . . . . . . . . . 32
Destruction of Sites/Removal of Comments . . . . . . . . . . . 32
Problems that will Remain. . . . . . . . . . . . . . . . . . . 33
A Statutory Solution . . . . . . . . . . . . . . . . . . . . . 34
Internet Defamation. . . . . . . . . . . . . . . . . . . . . . 34
Unsolved Problems. . . . . . . . . . . . . . . . . . . . . . . 36
Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y.1996). . . . . . . . . . . . . . . . . . . .13
Blumenthal v. Drudge & AOL. . . . . . . . . . . . . . . . 31
CompuServe v. Patterson, 89 F.3d 1257 (6th Cir. 1996). . .13
Creative Technology, Ltd. v. Aztech System PTE, Ltd., 95 Daily Journal D.A.R. 9814). . . . . . . . . . . . .23
Cubby Inc. v. CompuServe, 776 F.Supp. 135, 19 Med.L.Rptr. 1525 (S.D.N.Y.1991) . . . . . . . . . . . . . . . . 7
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . 13
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). . . . . . . . . . . . . . . . . 8
Hansen v. Denckla, 357 U.S. 235 (1958). . . . . . . . . . 23
Hasbro, Inc. v. Clue Computing, Inc., No. 97-10065-DP (D.Mass. Jan. 10, 1997). . . . . . . . . . . . . . . 13
Hearst Corp. v. Goldberger, 1997 WL 97097 (S.D.N.Y. Feb.26, 1997). . . . . . . . . . . . . . . . . . . . . . . . 13
Inset Systems, Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996). . . . . . . . . . . . . . . . . . 13
International Shoe Co. v. Washington, 326 U.S. 310
(1945). . . . . . . . . . . . . . . . . . . . .
. . .13
Janet Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874, 25 Med.L.Rptr. 1833 (1997). . . . . . . . . . . . . . . . . . . . . . . .17
Johnson, David R. “Due Process and Cyberjurisdiction,” Cyberspace Law Institute. . . . . . . . . . . . . . .11
Johnson, David R. and David G. Post. “Law and Borders
-- The Rise of Law in Cyberspace.” 48 Stanford Law Review 1367(1996).
. . . . . . . . . . . . . . . . . . . .23
K.C. Roofing Center v. On Top Roofing, Inc., 807 S.W.2d
545 (1991). . . . . . . . . . . . . . . . . . . . . . . .14
Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp. 228, 235 (S.D.N.Y.1981). . . . . . . . . . . . . . . . . . 6
Loundry, David. “Virtual Magistrate Becomes a Reality, Sort of.” Chicago Daily Law Bulletin, June 13, 1996, at page 5. . . . . . . . . . . . . . . . . . . . . . . .15
New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). . . . . . . . . . . . . . . . . 8
Plus System, Inc. v. New England Network, Inc., 804 F.Supp. 111 (D.Colo. 1992). . . . . . . . . . . . . . . 25
Post, David G. “Governing Cyberspace”, Wayne Law Review,
Fall 1997. . . . . . . . . . . . . . . . . . . . . . 10
Pres-Kap, Inc. v. System One, Direct Access, Inc., 636
So.2d 1351 (Fla. Dist.Ct.App. 1994). . . . . . . . . . . 23
Resolution Trust Corp. v. First of America Bank, 796 F.Supp. 1333, 1334-35 (C.D.Cal.1992). . . . . . . . . . . . .23
Rindos v. Hardwick, an unreported judgment of the Australian Supreme Court, at http://www.law.auckland.ac.nz/cases/Rindos.html . . . 5
Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, 23 Med.L.Rptr. 1794 (N.Y.Sup.1995). . . . . . 7
Telco Communications v. An Apple a Day Inc., 977 F.Supp. 404 (E.D.Va. 1997). . . . . . . . . . . . . . . . . 25
“Tierney and Email America,” VM Docket No. 96-0001 (08 May 1996). . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). . . .4
Velarde, Albert J. ”Libel on the Internet.” Internet Law Focus Newsletter, Sep. 1996. . . . . . . . . . . . . 19
Weber v. Jolly Hotels, 977 F.Supp. 327 (D.N.J.1997). . . .13
Zeran v. America Online, Inc., 129 F.3d 327, 25 Med.L.Rptr. 2526 (E.D.N.C.1997). . . . . . . . . . . . . . . . . .7
Use of the Internet is widespread. With the increase in its use comes an increase in the number of defamation actions it generates.
Traditional defamation is governed by state law and has some elements which are difficult to apply to internet defamations. Some remedies are available,but often do not seem to fully compensate victims. A separate federal jurisdiction with different elements and definitions is needed to handle the problems created by Internet defamation.
Problems Under the Traditional Law
There are several elements of traditional defamation law that are not precisely applicable to the Internet. What is required is either a new law or a different application of the traditional law.
Of and Concerning the Plaintiff
Traditional defamation law requires that the allegedly
defamatory statements be “of and concerning the plaintiff.” That is, it
must be clear from the defamatory statement to whom it refers. This
is to ensure that the defendant was
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not just making a general comment or referring to a large
group. The “of and concerning the plaintiff” element from traditional
defamation is difficult to apply on the Internet for a variety of reasons.
The concept of “identity” on the Internet does
not match the everyday understanding of that term. For starters,
because there is no face-to-face contact -- or Internet birth certificate
or social security numbers, or driver’s licenses -- Internet users can
have multiple identities, false identities, or pretend to be either a real
or fantasy person or group they are not. When a statement is made
about such an identity, it clearly is of and concerning the identity, but
it may not meet the “of and concerning the plaintiff” standard. That
is, the identity defamed on the Internet may be substantially different
from the “real” identity of the Internet user who created the identity.
The Internet identity may not be the same as the plaintiff, and traditional
defamation law does not provide any guidance to the courts when dealing
with multiple identities of computer users.
The “of and concerning the plaintiff” element of
traditional defamation law assumes each person has only one readily identifiable
identity which is known to the alleged defamer. On the Internet,
the true identity of the plaintiff may be unknown to, or even concealed
from, the defendant. So Internet defamation requires a new
3
understanding of identities to address and resolve the
“of and concerning the plaintiff” element of Internet defamation.
Harm to the Reputation in the Community
As with the “of and concerning the plaintiff” element,
the traditional defamation element of “harm to the reputation within the
community” could also have several different meanings in Internet defamation.
In traditional defamation law, the community usually
meant the geographical community of the plaintiff(such as the circulation
area of a newspaper). When deciding whether a plaintiff had been
defamed by the standards of traditional defamation law, a court asks whether
the allegedly defamatory statement has had an adverse impact on the plaintiff’s
reputation in the plaintiff’s community. The court assumes that,
if the plaintiff is not well known nationally, she is only concerned with
her reputation at home. The court also assumes that if the defamation
is in the newspaper, only the newspaper readers (that is, those in the
circulation area) will see the comments and be affected by them.
On the Internet, users from different geographical
areas interact based on like characteristics or pure chance.
4
“Chat rooms” are sites on the Internet where individuals
can post messages that are read by and responded to by those who also enter
the chat room. Chat room participants do not know the location of
other participants, and may be completely anonymous. By definition,
they need not be geographically based. An Indiana resident who is
defamed in a chat room discussion by a Florida resident may care little
who lives where. His “community” for these purposes is the chat room
-- not Indiana or Florida. The traditional, geographical community
for defamation purposes may be no longer applicable or very helpful.
After all, the people who go to the chat room are the ones exposed to the
defamatory material, not the residents of the states where the parties
reside.
Some cases have applied the traditional law with
questionable results. One applied the community standards of the
forum state in an Internet defamation case. (United States v. Thomas,
74 F.3d 701 (6th Cir. 1996). Of course, the forum state (the state
where the court is located) is arbitrary and largely a matter of choice
for the plaintiff. This may be unfair to the defendant who was not
expecting to defend a lawsuit in that state. In fact, the forum state
need not be the home state of any of the parties. The application
of the forum state’s “community” norms may violate the defendant’s Due
Process rights and be unconstitutional. Whatever the community standard
may turn
5
out to be for Internet defamation, it seems clear that
the approach of traditional defamation law is inappropriate and needs modification
on the Internet.
There are some options for new definitions of “community”
on the Internet. There could be a career,field or professional communities.
There could be subject matter communities. For the person defamed
in a photography newsgroup, the community may be photographers in general
or more likely those photographers who have access to the newsgroup.
See Rindos v. Hardwick, an unreported judgment of the Australian Supreme
Court, at http://www.law.auckland.ac.nz/cases/Rindos.html, for a discussion
of the professional field as the Internet “community” for online defamation.
There, the community consisted of anthropologists because that was the
group who accessed the material and affected the plaintiff’s professional
reputation. The community could be the signatories to the systems
operator agreement (i.e. AOL users). The community could be anyone
who happens to hit on the website, even if that person did not access the
material. The possibilities are varied and involve different levels
of participation by the members of the Internet community.
Nothing is certain regarding communities on the
Internet, and that is why legislation is so desperately needed in this
area of the law. Parties look to the law to
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regulate their behavior, but current defamation law provides
virtually no guidance for either private individuals or the courts.
The traditional “published to a third party” element
is another complication for Internet defamation.
In traditional defamation, it is usually clear
who has published, and who has seen, the allegedly defamatory statements.
The only area of dispute might be whether a bookstore could be liable for
defamatory content in the books it displayed, or whether a radio station
could be liable for the content of the music it broadcasts. Courts
usually found that bookstores were not responsible for the massive volume
of material they carry. Because radio stations have a materially
smaller amount of material to consider they are sometimes held liable.
(Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp. 228, 235 (S.D.N.Y.1981).
A major question courts face in Internet defamation
is whether an Internet service provider should be found liable for the
comments of its users. That question turns on whether the service
provider “published” the material.
The individual user on the Internet undoubtedly
publishes information when posting it to the chat room or
7
website, but such individual “publishers” may be hard
to reach. The prospective defendant may not be subject to personal
jurisdiction. He may have made the posting anonymously. He
may be judgment-proof (unable to pay) even if a judgment is rendered for
the plaintiff. Postings to the Internet may be quickly removed, making
it difficult to determine who posted and read the material. Given
these difficulties, plaintiffs in these cases prefer to sue the Internet
service providers who operate in all 50 states, are clearly identifiable,
and have “deep pockets” -- the ability to pay off any eventual judgment.
Whether the Internet service provider can be held
liable for defamation by its users turns on the particular facts.
Normally “repetition of a libel is a libel”, but Internet service providers
have not been found liable unless they exercised editorial control over
the material. In the CompuServe case, there was no liability of the
Internet distributor because the court found it exercised no editorial
control over the content. Cubby Inc. v. CompuServe, 776 F.Supp. 135, 19
Med.L.Rptr. 1525 (S.D.N.Y.1991). See also Zeran v. America Online,
Inc., 129 F.3d 327, 25 Med.L.Rptr. 2526 (E.D.N.C.1997) (holding that liability
upon notice to the provider would chill free speech). The Prodigy
case did find liability because the company claimed to monitor and remove
objectionable material. Stratton Oakmont, Inc. v. Prodigy Services
Co.,
8
1995 WL 323710, 23 Med.L.Rptr. 1794 (N.Y.Sup.1995). So
it seems that the publication requirement has already changed to accommodate
differences between the Internet and the “real world”, but there are still
other differences to be addressed.
Specific Problems in Internet Defamation: Identity and Community
Several problems arise in Internet defamation law.
One is that the user may have several identities, only one of which is
harmed. Stage names of actors are analogous. Stage identities
of celebrities have been protected against defamation in traditional law,
but it is unclear if this analogy will hold up when applied to the Internet.
Stage names occur in public figures which is governed by a different standard
than regular defamation, that the statement be made with actual malice.
(New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41
L.Ed.2d
789 (1974).
If an Internet user remains anonymous but is a
frequent and well known visitor to the website or chat room and the reputation
is harmed despite anonymity, is the user a public figure requiring a showing
of actual malice to recover in defamation? Is an anonymous Internet
identity similar to a
9
stage name deserving protection against defamation or
does the cloak of anonymity on the Internet provide all the protection
that the user behind the identity is entitled to receive? These questions
have not been answered by traditional defamation law.
Assumption of another’s identity can also be a
problem on the Internet. The LambdaMoo case involved the use of another’s
Internet identity and was framed as an Internet rape. Because identities
may exist wholly on the Internet, in conjunction with the real world, or
may overlap, legal rights of Internet identities under traditional
laws are unclear. Defamation is only one area where this uncertainty
in the law exists, but defamation could be a start to resolving Internet
identity issues for all areas of the law.
Determining the proper community standards in Internet
defamation can also be difficult. Geographical community standards
for Internet defamation are unacceptable for the reasons noted above.
There are several possible levels of division on the Internet: the
website level, the chatroom level, the general subject field, the system
operator signatories level, and other levels that experts could help identify
for lawmakers. No legislative guidance on community standards in
Internet defamation has been provided to the courts thus far. This
issue needs to be addressed for all areas of Internet law that require
community
10
standards, obscenity being the most obvious example.
Defamation is a less controversial area that may help legislators decide
which community standards will be used for all Internet law.
Some feel that government should not involve itself
in creating Internet laws. The Jefferson/Hamilton debate has been
used as an analogy for the Internet regulation controversy. Some
say that government should regulate the Internet while others claim self-regulation
is more effective. Two groups which academics have dubbed the Hamiltonians
and the Jeffersonians, making an analogy between the Federalists and the
states’ rights groups at the time of the founding of the United States,
have emerged. Post, David G. “Governing Cyberspace”, Wayne Law Review,
Fall 1997.
The Hamiltonians believe that government regulation
is more effective than current self-regulatory schemes used by systems
operators and private parties. (Id.). They believe in national regulation
to ensure uniformity in policies and applications. The main concern
for Hamiltonians is protecting the public from defamation and obscenity
found while an individual is browsing on the Internet.
11
Publishers’ First Amendment rights are of less concern
to the Hamiltonians.
The Jeffersonians believe that self-regulation
is best because government control could create a chilling effect
on online publications and communications. They feel that Internet
experts should be allowed to set norms and control their own areas of the
Internet. (Id.). Systems operator agreements and individual
norms are enough to control the conduct of Internet publishers and participants
in the Jeffersonians’ view. The First Amendment rights of publishers
on the Internet and visitors’ rights to access constitutionally protected
material are paramount. To Jeffersonians, expressive freedom for
Internet publishers is more of a concern than individual browsers’ exposure
to unwanted material.
Due Process on the Internet
Traditional defamation law may not provide adequate
Due Process to Internet users. See Johnson, David R. “Due Process
and Cyberjurisdiction,” Cyberspace Law Institute.
A remedy should be available to protect the interests
harmed by Internet defamation. Due process is necessary to provide
compensation for monetary damage and emotional harm to Internet defamation
victims and to provide procedural
12
safeguards ensuring full and fair opportunities for both
sides to litigate to a fair result.
Considerable harms may result from Internet defamation.
Companies doing all of their business on the Internet will lose revenue
if defamed on the Internet. Such defamation would not be de minimis
because the impairment of company interests and financial losses could
occur as a direct result of the defamatory statements.
Lost job opportunities (employers check the Internet
and find harmful false information), bad credit (credit unions regularly
check the Internet for background information on applicants), and harm
to the reputation may be the end results for individuals defamed on the
Internet. The harmful results may occur before the individual is
even aware of the defamatory material on the Internet, leaving no
opportunity to rebut the false information.
Current Remedies and Problems with Application to the Internet
Current remedies for defamation may not apply to
the Internet. Traditional defamation is a state cause of action.
One potential problem is that it may be difficult to establish personal
jurisdiction in a state for an Internet defamation lawsuit. To obtain
personal jurisdiction over an individual or corporation, there must
13
be sufficient contacts with the state. (International
Shoe Co. v. Washington, 326 U.S. 310 (1945). Courts today use an
active/passive distinction to decide if there are sufficient contacts with
the state: there will be personal jurisdiction where the website involves
active participation by the user and the site seeks to make contact with
the state through advertising or subject matter.
Many cases applying the active/passive test hold
that advertising or a conscious effort to make contacts with the state
is required to obtain personal jurisdiction. One frequently
cited case held that the website needs to encourage people in the state
to access the site. (Cybersell Inc. v. Cybersell Inc., 1997 WL 739021
(9th Cir.). But, also see cases which hold that advertising and interaction
are not required to obtain personal jurisdiction if the site is meant to
be viewed by all, thereby creating personal jurisdiction over the creator
in all states. (Hasbro, Inc. v. Clue Computing, Inc., No. 97-10065-DPW
(D.Mass. Jan. 10, 1997), Weber v. Jolly Hotels, 977 F.Supp. 327 (D.N.J.1997).
14
Even if personal jurisdiction is found, the remedy
is generally a monetary reward and banishment of the user; nothing can
prevent the user from returning under a
different identity. This is similar to corporations
that changes their names to avoid payment of outstanding judgments.
In those cases, the court tracks the history of the corporation to find
that it is the same corporation with a different name which is still liable
for the judgment. See K.C. Roofing Center v. On Top Roofing, Inc.,
807 S.W.2d 545 (1991), as an example. It is much harder for courts to
track changing identities on the Internet because there is no paper trail
of identity. Even if the identity could be proved, it is difficult
to prove that another person has not taken over the identity. Identities
are fluid on the Internet, and defamers could take advantage of that fluidity
to reappear and post post defamatory material even after its cessation
has been ordered by the courts without much fear of getting caught.
A right to reply is also sometimes granted, but
because there is no way to track users (due to the transitory nature of
most websites and chat rooms), it is unclear if the reply will reach the
same audience that read the earlier defamatory remarks. In fact,
such a remedy could draw greater attention to the defamation and reach
a wider (different) audience than the original comments. This is
the exact opposite of what the plaintiff wishes, so
15
plaintiffs may not even exercise this remedy when it
is granted to them.
Some Current Internet-Tailored Options are Available
The Virtual Magistrate
One option for controlling Internet defamation is
the Virtual Magistrate , a voluntary online arbitration experiment designed
to facilitate dispute resolution on the Internet by all interested parties
without court intervention. The Virtual Magistrate experiment has
not been successful, but can be instructive.
The Virtual Magistrate is a voluntary arbitration
system on the Internet which allows parties to submit their case and have
a binding decision without court costs, attorneys, and the delay normally
associated with the regular court system.
Only one case has been decided by the Virtual Magistrate,
and it appears to have been a failure. The case can be found at http://vmag.law.vill.edu:8080/.
The case was brought by the Virtual Magistrate’s primary supporter, and
the other party did not even participate. The misconduct in that
case violated the systems operator
16
agreement, so it was not necessary to bring the case
before the Virtual Magistrate. The complaint involved an advertisement
sent through e-mail that offered free advertising to over 100,000 people
an hour with only a
connection charge. Sending advertisements through
the systems’ e-mail was against the systems operator agreement that is
signed at the time service is provided. The systems operator could
have banished the user without court intervention. Until another
case is brought before the Virtual Magistrate by both parties to a dispute,
no one will know if this innovative experiment can be saved.
Filtering/Banishment
Filtering/Banishment is another option exercised
by systems operators to control the content available on their systems
without court intervention. Systems operators can filter messages
and websites to check for obscenity, key words, and other content that
violates the systems operator agreement. The normal remedy for those
consistently violating the agreement is banishment from the system.
There are First Amendment concerns involved when
the system operator forbids constitutionally protected speech from its
system. If the government takes control over the Internet, it will
only be allowed to ban material that is not constitutionally protected.
The government has already
17
tried to regulate pornography on the Internet through
the CDA (Communications Decency Act). Because there are no reliable
forms of age verification on the Internet, the Court held that the Communications
Decency Act was unconstitutional because it denied constitutionally protected
material to those who had a legal right to obtain the information.
(Janet Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct.
2329, 138 L.Ed.2d 874, 25 Med.L.Rptr. 1833 (1997). If material is
protected by the First Amendment (not obscenity), then the government will
not be allowed to prohibit it on the Internet until there is a way to verify
ages of Internet users and limit the act to those who do not have a legal
right to obtain the information. Any regulation of pornography by
the government today would be void for overbreadth.
The same is true if the government were to prohibit
certain defamatory phrases or remarks. Such a statute would reach
some cases which do not involve defamation (because most language is susceptible
to many interpretations), and would therefore be overbroad unless intent
was a required element. Government regulation could lead to chilling
effects on chat room communications. Chat room users might be afraid
to express opinions about fellow participants or even public figures or
political actors. Such a chilling effect could lead the Court to
find the statute
18
unconstitutional as infringing on First Amendment rights
of free speech and publication.
As mentioned before, there is a problem of repeat
offenders using different identities. Filtering could reach any identity
that is posting to the site, but banishment is identity-sensitive and could
be circumvented by users returning as different identities.
Netiquette/Mail Bombings/Ostracism and Other Self-Help Remedies
Private users have created several self-help remedies
against defamation on the Internet. These remedies may create as
many problems as they solve. Voluntary systems of etiquette for the
Internet, simulataneous multiple mailings to offenders, and boycotts and/or
ignoring offenders in chat room discussions are true self-help remedies
used by individuals today.
Netiquette is a group of norms on the Internet
that have evolved over time that are informal and not always followed.
One example of netiquette is the use of capital letters in e-mail communications.
The use of all capitals
indicates to the receiver that the sender is “yelling”
at them, or intends a harsher meaning than if smaller case letters were
used. Those unfamiliar with the Internet may use all capitals not
realizing that this violates a rule of
19
netiquette. Those familiar with netiquette can
use it (or teach other users the rules) to avoid defamation as a result
of a misunderstanding.
Flaming is another remedy to counteract defamation
on the Internet. Flaming is the term used by those familiar with
the Internet to describe nasty e-mails or chat room comments which are
designed to provoke or put down other users. Flaming can let
the receiver know (in a not-so-subtle manner) that the receiver has violated
the rules of netiquette. Of course, flaming can itself violate the rules
of netiquette,so the remedy is not always effective and can be abused.
Mail bombings involve messages sent to one receiver
by several others who send multiple messages simultaneously in order to
irritate the receiver and drain the resources of the receiver’s system
or to prevent the receiver from being able to send messages (by overloading
and crashing the system). Mail bombings have been used on a wide scale
as protests against corporations in recent news reports. Mail bombing
is against the law, and is usually included as a prohibited activity warranting
banishment from the system in the system operator’s agreement.
Ostracism involves individuals agreeing to not
respond to the comments of a user in a chat room or newsgroup.
20
Every newsgroup seems to have one rude and pushy participant
who defames other participants if criticized, and many times the other
participants will agree not to respond to the comments in order to force
the rude participant to drop out of the newsgroup. One example of
this technique is the Politics:Elections newsgroup: in response to name-calling
and personal attacks by some participants, individuals wrote in to the
newsgroup requesting that all participants refrain from responding to rude
commentary and personal attacks.
Self-help as the sole remedy for Internet defamation
may leave victims uncompensated. Real damage (monetary and emotional)
can occur as a result of defamation, and self-help remedies will not allow
the harmed to recoup lost money and lost esteem within the community.
Self-help is a form of retaliation against the defamer. Flaming may
itself consist of defamation, and mail bombings are illegal. That
situation is not fair to either party and cannot be excused as being a
consequence of using the Internet.
Another problem is that some may abuse these self-help
remedies to harass other users. Mail bombings can be a drain on systems,
and may be used solely to crash systems as a form of cyber-terrorism.
New users of the Internet may not be familiar with netiquette and may be
afraid to participate for fear of retaliation for some inadvertent mistake.
The purpose of Internet regulation is to increase
21
participation, and self-help remedies against defamation
may lead to the opposite result.
Self-help puts the burden on Internet participants
to enforce codes of conduct. The concern behind regulation is protecting
these very participants from offensive, annoying material on the Internet.
Self-regulation puts the burden on those we are seeking to protect, and
does not provide Due Process to those who are harmed by defamatory comments
on the Internet.
The Internet Law Task Force is an option for setting
Internet defamation standards that has been suggested by Internet law scholars.
The ILTF already sets technical standards on the Internet to insure compatibility
amongst systems. Some suggest that the ILTF’s mandate should expand
to set standards of conduct for the Internet and rules to settle disputes.
It would basically be the Virtual Magistrate only it would have several
technocratic members with more Internet expertise.
The ILTF is currently a voluntary organization
which does not have the binding authority of law to set standards of conduct,
so it may not be able to enforce rules it may create. One party
will not currently be able to force the other party to have the ILTF settle
disputes. Congress
22
would need to pass a statute conferring authority on
the ILTF to set standards of Internet conduct, and the statute would need
to pass a constitutional challenge (which would surely be brought to challenge
the government’s power to regulate the Internet).
The Need for a Separate Federal Jurisdiction over the Internet
A separate federal jurisdiction is needed for the Internet to handle the problems that traditional law cannot handle.
The Law Merchant Analogy
The Law Merchant is an analogy showing the need
for a new body of law to deal with a society changing by the prevalence
of Internet usage. In the Middle Ages, trading of goods expanded
beyond typical local trading to trading outside of the community.
New laws were needed to deal with the drastically different situation because
communities had their own laws. Law Merchant was the body of law
used during the time to deal with inter-community trades and settle disputes
as to which community’s law should apply
23
until they could be incorporated into the regular common
law.
Fundamental changes in communications occurred
with the advent of the Internet and its assimilation into everyday society.
Crossboundary communications differ from other bodies of existing law (at
least telephone and wire transfers have an identifiable source and destination,
although the NSA chip might produce such information for the Internet as
well). The widespread use of crossboundary communications has made
it less burdensome to defend cases in foreign courts for quite some time
now. (Hansen v. Denckla, 357 U.S. 235 (1958). Other cases have
held it too inconvenient to require parties to defend cases in foreign
courts in Internet actions. (Creative Technology, Ltd. v. Aztech
System PTE, Ltd., 95 Daily Journal D.A.R. 9814).
Website creators today will be subject to personal
jurisdiction in all 50 states if they use advertising and are open to residents
of all states. (Resolution Trust Corp. v. First of America Bank, 796 F.Supp.
1333, 1334-35 (C.D.Cal.1992). This may be unconstitutional because
it is against party expectations. There is also inadequate notice
to the parties that they will have to litigate disputes in some of the
fora. (Pres-Kap, Inc. v. System One, Direct
24
Access, Inc., 636 So.2d 1351 (Fla. Dist.Ct.App. 1994).
Courts are struggling to apply the traditional law to an area where it
does not and should not apply.
Drastic changes are involved in crossboundary communications
on the Internet, and a new body of law is needed until the courts can properly
integrate the Internet into existing bodies of law.
Comity/Deference
Comity and deference to technical experts to create
a separate body of law is an option. Because the government does
not have Internet expertise, it should defer to those who do in order to
avoid mistakes and unfair results in Internet regulation.
This analogy to the conflicts of law rules that
defer to other states that have a stronger interest in the result and are
more familiar with the facts of a particular case shows that the government
should enlist expert help in regulation of the Internet. In this
case, the government would be deferring to the technocrats who regularly
deal with and have expertise in the Internet and are better equipped to
determine the norms of its users.
Another argument using the comity theory would
lead to the opposite result. Many states have longarm statutes which
appear to reach Internet controversies that occur in
25
their state (if there are sufficient contacts with the
state). An example is Telco Communications. Virginia had a
longarm statute which reached disputes involving any company that does
business in Virginia. The court used that statute to apply Virginia
law to an Internet defamation case which involved a website that had advertising
and was available to Viginia residents. (Telco Communications v.
An Apple a Day Inc., 977 F.Supp. 404 (E.D.Va. 1997). The state has
expressed an interest in handling these cases through the
use of a longarm statute, and if the state is interested,
then courts should defer to that state and apply that state’s laws to the
case even though it involves the Internet and could be tried under other
state (or federal) laws.
One case explicitly held that the conflict of law
rules of the state should be used to decide jurisdiction over Internet
cases. (Plus System, Inc. v. New England Network, Inc., 804 F.Supp.
111 (D.Colo. 1992). Others have said that the Internet is unrelated
to the traditional defamation law and that there should be a separate federal
jurisdiction for Internet defamation cases.
The federal legislature will have to show jurisdiction
before it can delegate authority to the experts to set up a
26
separate federal jurisdiction for the Internet.
Congress can argue that the Internet is ancillary to federal legislature
power over the mails. E-mail is prevalent in society, and is often
used to contact website creators and commercial entities on the Internet.
Congress
used this argument to gain regulatory power over FedEx
and UPS and may succeed on the Internet as well.
The Internet also involves interstate commerce
through its advertising and commercial sites. States are already
claiming that there can be jurisdiction in every state if there is advertising.
If there is jurisdiction in every state, this would be an argument for
federal jurisdiction as well. Any site with a .com suffix would probably
fall into the commercial site category, and so would all other sites with
advertising and unrestricted access.
Jurisdiction over the rest of the Internet can
be obtained through its substantial effect on interstate commerce.
Congress might have to do some factual finding on sales generated by the
Internet and the proportion of sites and space on the Internet which are
devoted to commercial activities. Federal jurisdiction could also be predicated
on the links to commercial sites that are included in almost every website
(commercial or not).
Jurisdiction did not seem to be a problem when
the federal government tried to set standards for obscenity on the Internet.
See Reno, supra. There, it was not the
27
jurisdictional hook that caused the problem but the overly
broad regulation of constitutionally protected material that caused the
Court to find the CDA unconstitutional. The Court did not base its
holding on a lack of jurisdiction,
because that would have been the first consideration
in construing the statute and the constitutional question would not have
been reached if jurisdiction were the problem.
Federal jurisdiction over Intert regulation seems
to be constitutional. The question that still remains is whether
federal jurisdiction will help curtail defamation on the Internet and provide
remedies to those harmed by Internet defamation.
Separate Jurisdiction Impact on Defamation Law
Federal jurisdiction will have a substantial impact on defamation on the Internet. The elements of defamation will be redefined to meet problems that were encountered by application of traditional defamation law to Internet defamation.
Identities
Identities will be redefined to include Internet-only
identities, changing identities, groups of Internet participants, and anonymous
participants. The “of and
28
concerning the plaintiff” element of defamation will
be relaxed in Internet cases. The government regulates at the time
of litigation much more than the time of Internet use by participants.
The government will not be able to change the standard by using narrow
definitions at the litigation stage that do not apply at the use stage
without violating the Due Process rights of the parties.
If the government wishes to keep the class of defamation
plaintiffs narrow (real world identities only, for example), it will have
to regulate Internet participation more closely during the use phase, keeping
track of and restricting the use of identities of Internet users.
This type of regulation would be politically unpopular, so Congress is
unlikely to even try such a scheme. Even if Congress were to pass
such regulation, it would probably violate the privacy rights of the individual
users of the Internet and be found unconstitutional.
The government will therefore need to conform the
law to the current state of the Internet, applying currently used terms
and giving legislative recognition to the identities currently recognized
on the Internet. Some of these identities are unprotected by the
traditional defamation law, so statutes will be required to redefine the
terms in older defamation statutes or set out entirely new protections
for currently unprotected identities.
29
Communities
Because federal jurisdiction over Internet defamation
will not be based on geographical considerations, community standards to
decide the impact of defamatory statements should not be geographically
determined either.
Communities will be redefined as to different levels
on the Internet: website, chatroom, and systems levels. At
first, a general standard will be necessary until communities become more
developed and defined over time. The government may decide to follow
Australia’s lead and classify communities broadly, such as the professional
field involved. As the law evolves, communities will become more
specific to fit certain fact patterns. The determination of community
standards will be a fact-intensive inquiry in the beginning that will create
precedent over time.
Harm to Reputation
The harm to the reputation element may need redefinition
on the Internet to allow for insignificant or de minimis harms. The
Internet is on such a fast pace that defamation may not have a lasting
effect or much impact on the victim. Such minor harms to the reputation
of plaintiffs may not deserve a remedy. The transitory nature of
most chat rooms will minimize the effect of defamation on
30
the Internet. Because anonymous Internet participants
are common, they may feel no harm and no deterrence from returning to the
site where the statements were published. The Internet has been from its
inception a democratic organization which encourages participation and
free communication, and the government should not be allowed to stifle
that freedom by allowing remedies for speech which has little if any effect
on the subject.
Remedies under federal jurisdiction may differ from
current remedies. Federal jurisdiction allows more meaningful judicial
review of systems operator decisions. Systems operators are currently
the sole judges of when a signatory has violated another’s rights.
Systems operators and Internet service providers have a financial stake
in pleasing their customers. In an effort to avoid lawsuits for defamation,
the systems operator may banish questionable participants without good
cause or proof of defamation. Parties can currently make complaints
against innocent parties as a means of harassment or retaliation.
An impartial, disinterested court will be more fair to both parties involved
in the dispute.
31
Right to Reply
Uniform federal policies may offer more comprehensive
remedies to victims of defamation and give a greater right to reply than
is currently available. There are two ways that the government could
grant a right to reply: a court-ordered retraction and reply, or a separate
site for victims to use to comment and explain why the false statements
were not true and why the plaintiff won the lawsuit. The retraction
method has already been used in some cases, but may not be enough.
Matt Drudge sent an e-mail version of the Drudge
Report that carried a defamatory report about Sidney Blumenthal, falsely
alleging that Blumenthal had beaten his wife. (Blumenthal v. Drudge
& AOL). Drudge sent out a retraction, presumably to the same
people who received the earlier e-mail. Blumenthal is still suing
Drudge for $30 million dollars.
A problem with retraction is that an e-mail recipient
may contact the media after the first message but not tell the media about
the retraction. Retractions do not usually get much space or attention
in the media. The original story may destroy the reputation of an
individual, and the retraction may not do much to help the situation after
the fact.
32
Banishment with a Wider Scope
The federal government may be more effective at
banishing offenders by tracking a larger part of the Internet and using
the NSA chip to identify users who are changing identities and returning
to the same sites. If
states create and enforce Internet regulations, they
will have a narrower view of the Internet (that which affects the state)
and will have fewer resources available to aid in the enforcement of regulations.
Destruction of Sites/Removal of Comments
The federal government may be able to order the destruction of sites or the removal of comments from sites on the Internet. Contempt could be a remedy for violating court orders to remove material. The government could also remove the material itself. Systems operators may have a financial motive to keep controversial material on the web (keeping their customers happy by allowing freedom of publication), but the government will not have a financial interest in keeping users and will be more likely to remove defamatory material. The government might also be more likely to remove constitutionally protected material, material that is anti-government, or material that some
33
participants find offensive but which does not rise to
the level of defamation. This one of several problems that would
remain even if federal jurisdiction is established over Internet defamation.
Problems that will Remain
Some problems would still exist after federal regulation,
such as First Amendment concerns, multiple identities (if the NSA chip
does not work or is held unconstitutional), and the individual’s interest
in anonymity on the Internet. Maybe the interest in anonymity is
a 14th Amendment liberty which the government cannot violate without Due
Process, requiring a full hearing and trial before the actual identity
can be accessed by the government. All of this would occur before
a trial on the defamation issue, and a determination that the material
must be removed. By that time, everyone will have seen the
material, and potential remedies to the plaintiff may
be rendered ineffective by the passage of time. Unlike a newspaper
which the public may forget about with time, material on the Internet will
stay until it is removed. The court is unlikely to issue a temporary
injunction, especially if the accused is a media source, and the allegedly
defamatory story is a timely one with public interest which the source
depends upon for revenue.
34
A Statutory Solution
A statutory solution will be required if federal
jurisdiction is created for the Internet.
A model statute may help clarify the issues.
The government will need a justificaiton to take jurisdiciton over
Internet defamation because defamation is currently a state issue.
The justification may be that the Internet is ancillary to the mails or
interstate commerce.
A statute should list elements of defamation and
how they are defined when dealing with the Internet, as well as a jurisdictional
note.
An example of the elements that would need to be
included in an Internet defamation statute follows:
Internet Defamation
Section 1. General Definitions
(1) “Causes harm” means that the defamatory statement is the proximate cause of the alleged damages.
(2) “Defamatory meaning” means that there is an
interpretation of the statement which is defamatory which
the jury could reasonably find to be the meaning of the
particular statement in question in the immediate case.
35
(3) “False statement” means an oral or written
assertion which is untrue.
(4) “Harm” means harm to the reputation which causes either emotional damage or economic, financial damages.
(5) “Identity” means any identifiable Internet username or symbol indicating the identity of the plaintiff. The plaintiff may have multiple identities, and so must prove which identity has allegedly been defamed and that the identity belongs to the plaintiff.
(6) “Internet” should be broadly construed to mean any computer operated device which allows electronic communications between computer users, including but not limited to: chat rooms, websites, electronic mail, bulletin board services, and others.
(7) “Plaintiff” means the real world person or corporation which is bringing the defamation suit.
(8) “Publish” means any electronic communication
sent via computer to any computer user, including but not limited to: sending
electronic mail, creating or adding to a
website, writing comments to a chat room discussion,
and others.
36
(9) “Relevant Community” should be determined to
be the level of computer users which is most effected by the defamation
and which has an opinion on the reputation of the identity being defamed.
This will be decided on a case-by-case basis and some examples of relevant
communities include but are not limited to: the professional field, those
with access to the chat room where the false statement appears, the Internet
service provider signatories, and others.
(10) “Third Party” means any identity other than an identity belonging to the defendant.
Section 2. Internet defamation.
Whoever makes a false statement published to a third party on the Internet of and concerning an identity of the plaintiff which has a defamatory meaning and causes harm to the reputation of the identity within the relevant community, shall be liable.
Unsolved Problems
In reality, federal jurisdiction will not solve
all of the problems of defamation on the Internet. Systems operators
will still use filtering and banishment (unless
37
forbidden to do) to keep customers even that means reaching
beyond the scope of federal regulations. Systems operators will be
willing to curtail the First Amendment rights of Internet users in order
to market themselves as “family” systems.
The courts may strike down federal jurisdiction
due to jurisdictional questions, First Amendment concerns,
or possible chilling effects created by governmental
regulation of the Internet.
Private companies may offer chips to block out
more Internet content than it is constitutionally permissible for the government
to regulate, making federal regulation redundant and unnecessary.
Conclusions
Several conclusions may be drawn from this analysis of defamation on the Internet. The most basic conclusion is that Internet defamation is fundamentally different than traditional defamation and needs its own body of law.
Need for New Law
Geographical standards of community and traditional
ideas of identity are inapplicable to Internet defamation.
A new body of law to govern Internet communications is
38
required until the Internet becomes more familiar and
can be absorbed into traditional bodies of law.
Need for Regulation
The Internet is too diverse for self-help remedies
alone. Systems operators control only their system, and individuals
have no control over what is written about them on the Internet.
Some self-help remedies are a drain on the Internet and may even be illegal
or violate systems agreements. Regulation is designed to protect
individuals from defamation on the Internet. The burden to stop Internet
defamation should not be placed on the victims. Centralized
control over the problem is the best way to deal with the size of the Internet
and the many defamation actions which will be brought. Federal regulation
is necessary because it is the only way to provide uniformity. Self-help
will naturally be on a case-by-case basis; federal regulation will allow
parties to regulate their behavior to conform with the law which should
be predictable and well known.
Need for Due Process
Due process is important on the Internet. Real
reputations are at stake even if they are different from traditional notions
of reputation and harm. Victimes are entitled to a remedy when they
are defamed on the Internet.
39
Companies which exist solely on the Internet depend in
large part on their reputation on the Internet to generate sales and profits.
If these companies are left without a remedy for defamation, they could
go out of business and new Internet startups would reconsider going into
business on the Internet. Federal jurisdiction is necessary to protect
these companies and individuals and facilitate economic growth on the Internet.
Need for Federal Jurisdiction
A separate jurisdiction is needed because the Internet
is boundaryless and traditional territorial law does not apply in the Internet
context. Some courts apply traditional law to Internet defamation
cases, with questionable results. Because most websites are accessible
to residents of all states, the forum is mostly a matter
of the plaintiff’s preference right now. Differing state Internet
defamation laws could lead to forum shopping and uncertainty for Internet
participants. Federal
jurisdiction is the only way to provide certainty to
the parties and prevent forum shopping.
Where to Start
Current self-help remedies are a good place to
start in developing federal statutes to cover Internet defamation.
Some of the self-help remedies (such as the Virtual
40
Magistrate) may not work only because they lack the force
of law and are voluntary. With federal power behind them, some of these
remedies could work to eradicate -- or at least remedy -- defamation on
the Internet. The Internet Law Task Force’s mandate could expand
to study current norms on the Internet and provide factual findings to
Congress to create legislation that conforms to the current state of the
Internet instead of trying to change the nature of the Internet through
unpopular legislation.
A Model Statute
It is necessary to declare separate jurisdiction
and applicable standards for Internet defamation. The
model statute included in this work is intended merely as a call for more
detailed discussion and proposal statutes by scholars. Current defamation
law is not applicable to Internet defamation, and a change is much needed.
1. Bensusan Restaurant Corp. v. King, 937 F.Supp. 295
(S.D.N.Y.1996), CompuServe v. Patterson, 89 F.3d 1257 (6th Cir. 1996),
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997), Hearst
Corp. v. Goldberger, 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997), Inset Systems,
Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996), and many
others.
2. Loundry, David. “Virtual Magistrate Becomes a Reality,
Sort of.” Chicago Daily Law Bulletin, June 13, 1996, at page 5.
3. ”Tierney and Email America,” VM Docket No. 96-0001
(08 May 1996).
4. Velarde, Albert J. ”Libel on the Internet.” Internet Law Focus Newsletter, Sep. 1996.
5. Johnson, David R. and David G. Post. “Law and
Borders -- The Rise of Law in Cyberspace.” 48 Stanford Law Review 1367
(1996).