Defamation on the Internet:  Searching for Community, Identity, and Statutory Solutions

Marty L. Sutcliffe

University of Iowa Cyberspace Law Seminar
Spring 2000
Professor Johnson



Table of Contents

[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

Endnotes



Table of Authorities


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


Defamation on the Internet

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
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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.

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“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
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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.

Published to a Third Party

 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
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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.,
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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
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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
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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.

The Jefferson/Hamilton Debate

 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.

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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

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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
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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).
 

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 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
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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
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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
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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

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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
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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.
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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

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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.

Internet Law Task Force

 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
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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
 

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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
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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
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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.

Federal Jurisdiction

 The federal legislature will have to show jurisdiction before it can delegate authority to the experts to set up a
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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
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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
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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.

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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
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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.

Different Remedies

 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.
 

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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.

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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

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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.
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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.
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 (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.
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 (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
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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

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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.
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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
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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. 


Endnotes

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).