A)  Fiber Optics will change the face of the Internet
 The imminent use of fiber optic cable to speed data across the internet is expected to dramatically increase both the volume of, and rate at which, information can be sent and received.1  This in turn is expected to significantly enhance the quality and range of services that can be provided to (or by) a casual user, at little or no cost.  Thus it not unforeseeable that in short time both common man and corporate giant will be able to send and receive live and pre-recorded audio-video transmissions across the Internet and into each others homes.2   How will this audio-visual cyber-revolution affect the application of defamation law, as applied to Internet communications?  To answer this question, it is first necessary to trace the tort's procedural evolution.

B)  The old system
 Historically, the distinction between slander and libel was relatively easy: if the defamatory communication was spoken or by conveyed by gesture, it was a slander; if it was written, drawn or printed, it was a libel.3
This distinction was often important: In order to obtain a damages in a suit for slander, the plaintiff had to make a specific showing of how his or her reputation had been harmed (there are enumerated content-based exceptions to this requirement).4  Proving this harm was (and is) not always an easy task.  However, in an action for libel,   harm was presumed.5  Therefore, if the plaintiff was unable to demonstrate specific harm, this distinction, between libel and slander, would have been dispositive as to whether or not the plaintiff was financially compensated for his or her reputational loss -- no small matter.

C)  The Modern System
The historical distinction between slander and libel was somewhat diminished following two modern Supreme Court cases.
In Gertz v. Robert Welch, Inc., the Supreme Court (expressing First Amendment concerns that juries might be arbitrarily punishing unpopular opinion in the absence of actual damages), held that the states could no longer permit the recovery of presumed damages when liability was not based upon a showing of a knowledge of falsity or a reckless disregard of the truth (actual malice).6
 Then, in Dun & Bradstreet v. Greenmoss Builders, the court backtracked slightly, allowing presumed damages (even absent a showing of actual malice) in cases involving non-public figures, where the burden of demonstrating actual damages are great, serious harm is all but certain, and the communication at issue is "speech of no public concern."7
 In light of these cases, some may mistaken believe that the distinction has lost its bite.  However, consider: First, the field of defamation cases involving actual malice is significant, and therefore the distinction should still be treated as very relevant.  Second, although the court in Dun & Bradstreet announced an exception for speech involving "no matters of public concern," Justice Brennan contends (in a dissenting opinion) that the plurality failed to adequately define the parameters of such speech, and thus it remains somewhat of an open question as to the scope of its reach.8
Thus, once again, in such aforementioned cases where the plaintiff is unable to demonstrate actual harm, this distinction, between libel and slander, may yet once again prove dispositive as to whether or not the plaintiff's efforts to secure damages succeeds or fails.
 
C)  Enter broadcasting: Libel or slander?
 Before these two cases were decided, the courts had to wrestle with a new and unique medium, both persuasive and pervasive: broadcasting -- a medium whose pre-dominant means of communication (in both radio and television) is speech.  Strict application of the old rules, would, on its face, seem to suggest that slander provides the appropriate standard for broadcasting; after all, its dominant means of communications is speech.  However, many courts (and legislatures) thought otherwise, concluding that such a strict application of the old rules would be grossly out of step with the original purposes for making the distinction (which we will discuss shortly).  To illustrate: it is now perfectly reasonable to presume that a broadcasted oral defamation might reach an audience as great as, if not greater than, one accessible to a pervasive printed medium, such as a newspaper.  And with the advent of modern recording devices, a broadcasted defamation could, like a libel, assume a semi-permanent and tangible form (capable of re-offending).  Accordingly, many states now treat broadcasting as libel.  However, this trend is not universal.  Other states (such as California), have resolved that broadcasting be treated as slander.9  Thus the debate over broadcasting continues.

D)  Early Internet defamation: Libel is consistent with  historical treatment
 So along comes the Internet, a media within which, at the time of this writing, all (or almost all) of the defamation therein involves the written (as opposed to the spoken) word.  Thus, unlike broadcasting, the old rules (focusing on the written/spoken distinction) have been easily applied with little or no objection: defamation on the Internet is (or at least, always has been) litigated as libel.  Not only might this help explain why no court or scholarship has addressed this issue, it may also suggest why lawyers have, to date, simply litigated cyber-defamation as libel, without giving the matter much thought.  However, that's all about to change....

E)  Audio-visual cyber-defamation:  Libel or slander?
    No clear answer
 As mentioned earlier, the imminent application of fiber-optic cable as the carrier of Internet communications is expected to revolutionize the medium.  As a result, it is quite foreseeable that bulletin boards and chat rooms will take on a predominantly audio-visual nature, as opposed to a printed one; instead of "Joe Citizen's" letter and graphic oriented homepage, perhaps we'll get Joe Citizen delivering much of the site's communications himself (it would be easier than typing, and may even him the psychological satisfaction of feeling self-important).
 In addition, unlike traditional television, not only will the number of outlets be potentially limitless, but also the overhead involved in setting up and sending such transmissions will be close to negligible.10  Therefore, it is not unforeseeable that the propensity for audio-visual Internet defamation will skyrocket, and the courts may not know how to classify it.
 Therefore, as technology moves the Internet's nature, as a whole, closer to broadcasting, the courts will be forced to decide whether it be wise to treat it as if it were.  Which brings us back to our question.... whether the courts should treat audio-visual cyber-defamation as libel, slander, both, or something new.  Once again, the determination arrived at may prove dispositive at to whether a plaintiff's quest for damages fails or succeeds.
 
II. BACKGROUND: WHY WE DISTINGUISH LIBEL FROM SLANDER:
 
The logical first step in deciding how to treat audio-visual cyber-defamation is to inquire as to why the courts initially distinguished slander from libel (admitting that many authorities are divided or uncertain on this question).
 One suggestion has been that the distinction arose at a time when relatively few people could read, and thus written communications were perceived as being more credible.11  Likewise, people may have believed that a writing was more likely than a verbal utterance to have been the product of careful deliberation, again enhancing its perceived credibility.12
 A second possibility was that a libel could be communicated to a larger audience than a slander, thereby increasing the likelihood of greater reputational harm.13  In addition, unlike a slander (which ceases to exist after being spoken) a single libelous statement has the propensity to re-offend countless times (due to its semi-permanent form).14
 A third and related reason is that these disparities in credibility and audience size may have convinced the courts (or at least the Star Chamber) that libels were more likely to incite breaches of the peace.15  Avoiding breaches of the peace was itself a major premise for creating the two torts, each of which seek to provide a lawful forum in which plaintiffs can seek restitution for: 1) injuries to a plaintiff's reputation, 2) resulting financial loss, and 3) emotional distress suffered.16
 Armed with these theories, we can now inquire as to the appropriate standard for audio-visual cyber-defamation.  This analysis should suggest that concocting a blanket classification for the Internet as a medium would be out of step with the original purposes for the differing torts.
 
III. DO THE ORIGINAL PURPOSES OF THE LIBEL/SLANDER
DISTINCTION SUGGEST TREATING AUDIO-VISUAL DEFAMATION ON
THE INTERNET THE SAME AS AUDIO-VISUAL DEFAMATION ON
TELEVISION?
 
Because judges and legislators may be inclined to look to the law's treatment of broadcasting for guidance on how to classify audio-visual cyber-defamation, it seems appropriate to compare the Internet and broadcasting alongside each other in light of the original purposes for the libel/slander distinction.  The analysis that follows treats broadcasting as if it is libel, and assumes, unless otherwise noted, that the communications at issue are or were available to a general public.

REASON # 1: CREDIBILITY
 Do viewers attribute sufficient credibility to the Internet, so as to justify a court in treating all audio-visual defamation as libel?

A)  On the Internet, it is the speaker, not the medium,
that counts:
 Broadcasting's "...wide dissemination...together with its prestige and potential effect upon the public mind as a standardized means of publication is such that many people tend automatically to accept it as conveying the truth, and as such puts the broadcaster on the same footing as the publisher of a newspaper."17
 Can the same be said of the Internet?
 It would be quite reasonable to assume as much if the alleged defamation was communicated on the "CBS Evening Cyber-Cast" or National Public Radio's on-line audio-clips.  In light of both the potential audience, on one hand, and the prestige of the sources, an excellent argument could be made that if a court would hold the same to be libel if broadcasted, then it should also do the same in this context.
On the other hand, it might be questionable wisdom indeed to rely on information received from one of the millions of unfamiliar and anonymous cyber-declarants communicating through this wide-open medium.  Thus, not only might the credibility of the speaker be suspect, the prestige of the medium would be non-existent.  After all, if the medium is one that is available to just about anyone, the effect on the public mind should be negligible.  Thus, to say one heard such and such on the internet, by itself, is no more or less prestigious or credible than if the same message was communicated on a public street corner (where the title of the Brooklyn Bridge is rumored to pass quite often).
 Exacerbating this credibility gap between the "establishment" sites and those which are unfamiliar, are the viewers not irrational perceptions that it is far less likely that internet communications (as a class) are being screened by trained editors to ensure minimal safeguards against the dissemination of false statements.18  In fact, where interactive Internet communications are a predominant feature of the website (as is the case in Internet chat rooms and bulletin boards), screening may be financially impossible, in light of the sheer volume of Internet traffic.  In contrast, broadcast sources exclusively control what is disseminated to the public, and thus can exercise greater control.
 Moreover, lest you forget the effects potential litigation might have on a speaker, consider also that it is often much easier, by and large, to identify the source of a  broadcasted audio-visual defamation, as compared to the same when communicated on the Internet.  Broadcasting's stations and producers are not only easily identifiable, but the majority of them are backed by relatively deep pockets (unlike many Internet communicators).  These deep pockets may very well provide not only the means to guard against the unintentional issuance defamatory statements, but also the incentives.19
 In contrast, it is no secret that locating the source of an Internet communication may prove difficult or impossible.  Moreover, even if identified, because of the negligible cost involved in Internet communications, it is quite possible that the defendant might be, for all intents and purposes, financially judgment-proof.20  The public may, in turn, take these economic considerations into account when assessing credibility.
 In sum, it is reasonable to assert that information conveyed by means of broadcasting is, by and large, more likely to have been the product of more careful deliberations than much of that conveyed over the internet, a medium which, alone and of itself, carries no instant credibility.
 Therefore, in the context of the Internet, the credibility of the speaker (and not the medium) should be weighed when determining whether or not a particular instance of cyber-defamation should be treated as libel or slander.
 
B)  The speaker's credibility should also be assessed, in light of its context
 Should it make a difference whether or not the defamatory message was conveyed over a passive pre-recorded web site, as opposed to a live audio-visual chat room?
 For guidance, I recommend the California Supreme Court's "totality of the circumstances" test.  As noted by that tribunal: "What constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole.  Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion."21
Thus, a disparagement made in the middle of a passionate on-going audio-visual chat room conversation might be more suggestive of a slander than one pre-recorded and made available on a passive website by the site's author (the latter being more likely the product of deliberate reflection rather than spontaneity).
Furthermore, there is separate precedent suggesting that when making such a credibility assessment, the factfinder might also consider the speaker's apparent state of mind -- was he speaking sarcastically, off the cuff, in the heat of passion, under the influence, and so forth (all of which may be readily discernable, in a case of alleged audio-visual defamation).  Georgia's Court of Appeals has argued that such factors may suggest less careful deliberation, and therefore "a publication may be libelous when, if spoken orally, it would not be slanderous."22
Of course, common sense acknowledges that a defamation posted within a live chat room conversation may have been carefully planned in advance, and such is an appropriate question for the factfinder; I only mean to suggest that careful deliberation is less likely in such a forum.
 Thus, the modality of an Internet site should be separately considered when trying to classify the cyber-tort as libel or slander.

C)  Did or should the speaker have known that the conversation might later be re-accessed?
 Reconsider for a moment a few other reasons why libel is deemed more credible than most slanders.
For most, writing takes longer to transcribe and compose than speech, and there is usually some unspecified time between a writing's composition and its delivery (allowing yet more time for reconsideration of the message).  Furthermore, it might be harder to convincingly deny the specific contents of a publicly disseminated and tangible writing, than a forever gone conversation, now regretted.  Thus, having exercised greater care in the message's composition, the message (even if spoken) may come across as more persuasive.  Accordingly, the perception of a libel as being the product of careful deliberation may nonetheless hold some weight, (despite the modern rise in literacy rates.  An indirect correlation is suggested).  But can the same be said about messages conveyed over the Internet in an on-going, live cyber-communication?
 Many of the above-mentioned considerations would not apply in such a context.  In addition, unless a communication is saved, it will permanently dissipate once the computer's power is cut off, calling into question any labeling of such speech as semi-permanent.  This being the case, if a speaker has no reason to believe that a given communication is being saved, it may not be unrealistic to suppose that the conversation may often be afforded no greater precautions than those commonly exercised in day-to-day speech, further calling into question any suggestion of any enhanced credibility, actual or perceived.
 And although I know of no case directly suggesting as much, could the inquiry into careful deliberation also implicitly speak to perceived culpability, just as pre-meditated homicide (the product of careful deliberation) is treated more severely than second-degree homicide (committed in the heat of spontaneous passion)?
 Thus, it may not be enough to merely inquire as to whether or not the cyber-communication was saved.  Perhaps we should also inquire as to the quality of the speaker's deliberations, during, and after the words were spoken.  In doing so, we might inquire as to: Who saved the communications?  Did the defendant know or have reason to  inquire as to whether the communications were being saved?  Were the communications made in the presence of casual friends, or others whose relationship to the speaker is such as to naturally provoke careful deliberations (such as officer addressing a board of trustees)?  When was the decision to save the communications made?  Beforehand?  Immediately after the defamatory utterance?  After subsequent communications within the same conversation, but for reasons unrelated to the earlier defamatory statements?  Was the defamatory message later erased or distributed?  Why, when and in what context?  Was the saved material available for others to peruse?  If the speaker later learned that his or her communication was saved without the speaker's knowledge, did the speaker attempt to, or have the means to, destroy the copy?  These considerations may speak to whether or not the defamatory utterance should be treated as spontaneous or well thought out, and may hint as to how they may have been perceived by most viewers.  Thus, when considering how to classify the tort, factors such as those above (correlating semi-permanency with credibility), might appropriately be considered.

Reason #2: LARGER AUDIENCES & PERMANENCE

A)  Libel's presumption of damages was chiefly concerned
with actual mass distribution
 One of the more commonly cited reasons for presuming damages in a libel action is that libels tend to (or at least, have a greater propensity to) reach larger audiences than might otherwise be expected of a comparable slander.  This seems to be the most rational justification for the presumption of damages in light of the tort's history.
 My case in point: the tort of libel was not recognized at common law until immediately after the advent of the printing press.23  Prior to that time, an aggrieved plaintiff could only bring suit for slander.24  The written word, however, was not new to that era, but in fact had been part of our collective culture for thousands of years.  This suggests that the mere fact that a defamation took place in the context of a writing should not necessarily warrant the conclusion that it is or was more dangerous (despite its assuming a semi-permanency, by virtue of its paper medium), otherwise the libel/slander distinction logically should have been recognized long before the printing press.  This finding, in turn, not only diminishes the relative weight of the earlier credibility-based considerations for the libel/slander distinction, but more importantly suggests that the court's subsequent blind adherence to the writing vs. speech dividing line was long off the mark.
 So what should we make of that prior case law which found a libel where a written or transcripted defamation delivered orally (despite the fact that the written or transcripted version was witnessed by none)?25  Putting any credibility-based justifications aside (which may or may not be sufficient to justify the outcome) is potential distribution enough?  Or must it actually be distributed?  Although prior precedent clearly suggests that no distribution is necessary, in light of the timing of libel's advent as a tort (alongside the rise of the printing press), it seems clear that potential distribution alone should be insufficient for a presumption of damages.  After all, how could any rational court conclude that the plaintiff's presumption of damages should turn upon the existence or non-existence of a document that never saw the light of day and may no longer exist?  That's absurd!
More likely, the presumption of damages was targeted toward actual mass distribution (printing presses being available to few then), serving predominantly as a means of approximating reputational damage, otherwise very difficult to ascertain (deposing the entire city, being a slight administrative inconvenience).

B)  Audience size & the relevance of reputational
 cyber-communities
 If we were to accept the above thesis (that the presumption of damages was primarily targeted toward actual mass distribution; the administrative impracticalities involved in demonstrating actual harm in such a case are prohibitive; and the harm resulting from such a mass distribution can be presumed in light of the judgement and history of our collective life experiences), then we should compare the three mediums -- newspaper, broadcasting, and the Internet -- for their relative effects, in light of those three criteria.
 Unlike traditional defamation cases involving local broadcasters and newspapers, is it more foreseeable that a given defamatory statement expressed on one of an innumerable sea of websites may reach few, if any, of those who knew of, or should have reasonably been expected to have otherwise later learned of, the plaintiff or the plaintiff's reputation.  Moreover, if no reputational harm can be reasonably inferred in a given context, (and if the torts of libel and slander are premised on redressing reputational harm; they are), then presuming such harm appears inequitable and misguided.26
Certainly, a slanderous statement announced before a gathering of 100 of the plaintiff's close associates would probably prove more damaging than a web site that projects a defamatory message, gets 10 hits, and is subsequently removed.  As noted by Florida's Supreme Court in Florida Star v. B.J.F. "...an individual who maliciously spreads word of the identity of a rape victim ... to persons who live near, or work with, the victim may have consequences equally devastating as the exposure of her name to a large number of strangers."  Yet to punish the speaker of the defamatory internet statements (assuming that the defendant could prove there were only 10 hits) and not the author of the live slander (assuming that the victim is unable to demonstrate actual damages) is a dubious proposition indeed, particularly if the 10 hits were from parties outside of the defamed plaintiff's professional and community circles, (and if the third parties did not know of nor have reason to know of the plaintiff, at present or in anticipated future dealings).27  A new means of approximation is needed.
 
C)  Estimating audience size: Identifying a reputational
 cyber-community
 Assuming that it is not possible to identify and depose the totality of those viewing a given internet communication (an assumption that, in reality, should not be made until the facts of a particular case suggest as much), I would suggest that a court adopt the following means of approximating reputational damage:
 Is the internet site, within which the defamatory statement is communicated, the type of site that a reasonable factfinder might expect to be visited by a significant number third parties who knew of (or would reasonably have been expected to have later learned of) the plaintiff or his reputation?  (And if so, could a reasonable factfinder conclude that the offending web site is, as a whole, sufficiently credible so as to allow a reasonable member of the plaintiff's reputational community to conclude that the defamatory contents, as communicated in that particular context, may be true?)
 In order to determine whether or not a web sight is one likely to be visited be third parties having knowledge of the plaintiff's reputation, we must first define the relevant third party "communities."28  For example, an anthropologist may be a relatively unknown persona within his or her geographical community, yet may command instant recognition and influence among anthropologists worldwide (an example of what I might fancy, a "geographically dispersed cyber-community").  Thus, a statement disparaging the anthropologist's research may cause no little or no damage if uttered in one context (small-town newspaper), and be particularly harmful if uttered in another (Anthropology.com).
 Once the plaintiff has identified those communities whose membership could reasonably be expected to know of the plaintiff or the plaintiff's reputation, the plaintiff should proceed to identify those other communities, whose membership might reasonably be expected to both 1) later form an opinion regarding the plaintiff's reputation, and 2) likely recall and associate the defamatory message with the aggrieved plaintiff at a time when the their opinions might reasonably be expected to be form.  This second step helps to ensure that the defendant is held responsible for a realistic approximation of the damages actually caused, and not all of those conceivably imagined (no matter how unlikely).29
 The final step should be to ask whether or not the web page displaying the offending message is of such a character to have likely attracted those classes of people.  If, for example, the message was posted on a web site titled "Negligent Techniques in Anthropology," a factfinder might reasonably conclude that this site would likely be visited by a substantial number of people with similar interests, who, more so than the internet community as a whole, may more reasonably be expected to have heard of (or would later have learned of) the aggrieved anthropologist.  Conversely, if the same defamatory message was posted on a web page titled "The American Nazi Party," a reasonable factfinder would probably conclude that few if any anthropologists would likely have perused that site.  Thus, implies that the factfinder would also have to decide whether or not to believe the anthropologist's unlikely testimony that several of his professional peers just happened to be browsing the obscure Nazi website and took its message as gospel (if they did, one might wonder if the plaintiff had a reputation subject to damage, in the eyes of a biased beholder).
 Of course, it is also possible that the defamatory message was posted to a popular website appealing to a general audience.  Again, the factfinder might balance any testimony of those claiming to have both known the anthropologist and visited the website, against the statistical likelihood of such.  Obviously, the more hits a website gets, the more plausible the claim that the defamatory message was indeed substantially viewed by members of an actual or cyber-community bearing knowledge of the plaintiff.

E)  Private Internet communications: a clear case for slander
 This section addresses the situation wherein the cyber-defamation is communicated by means of a private audio-visual conference viewed by a known universe of viewers numbering no greater than that reasonably foreseeable at a live meeting or public gathering.  Here, the fact pattern parallels that of a live, face-to-face conversation or a telephone conference call.  Calling a defamation committed within this cyber-context a libel would require an incredible leap of logic; it is clearly a slander (spontaneity, small & limited audience, spoken, no fixed medium of semi-permanence created by the speaker, no prestige inherent in the medium).
 Perhaps no better fact pattern than the one above can demonstrate the grave fallacy of applying the law of broadcast defamation unthinkingly to the internet (again, assuming that most states would treat broadcasting as libel), as none of the awe, power and credibility justifications many jurisdictions have relied upon in treating broadcasting as libel are present.  A presumption of damages in such a context would not only be administratively unnecessary, but possibly unfair to the accused.
Furthermore, even if this same conversation was not private, but in fact, available to all who cared to join, assuming that the viewers could later be identified (by monitoring and tracking hits), and assuming the number of viewers were not more than that which could be addressed in a normal conversation or public gathering (so as to not make unconscionable an automatic designation of slander), the analysis should not change.
Notice, that even with regards to the least watched television program at the least desirable hour on the least watched station, identifying all the viewers may be, for all intents and purposes, impossible, and thus there is more support of a prima facie case for designating such communications as libel.
 Therefore, where the audio-visual cyber-defamation is communicated by means of a audio-visual conference viewed by a known universe of viewers numbering no greater than that reasonably foreseeable at a live meeting or public gathering, treat the tort as a slander.
 Caveat: If these viewers, although discernable, are dispersed and cannot be summoned to court because of long-arm jurisdictional problems (as is not unforeseeable, in the context of the Internet), the case for slander is, at the very least, weaker, (as an inability to question the viewers under oath may make it more difficult for the plaintiff to affirmatively demonstrate reputational damages).
 
REASON #3: ENCOURAGING A PEACEFUL REDRESS OF GRIEVANCES

 The diffusion of internet participants, combined with (the apparent disparity in credibility and prestige between the Internet, on one hand, and traditional media, on the other), may suggest that those media, for the time being, remain more likely to incite breaches of the peace than the Internet.  To what extent this is (and remains) true should probably be assessed on a case-by-case basis, in light of changing technological circumstance, all of the aforementioned factors, and common sense.  Not much need be said on this element for now.
 Nevertheless, attention should at least be directly briefly to the disparity in the right of reply.
 Public officials and public figures not only have greater access than most to the various high-exposure, traditional channels of communication, but they can also more readily (by virtue of their fame) get their messages communicated prominently on the Internet's most highly visited sites.  Thus, when these public figures engage in cyber-defamation, the defamatory words spoken by them may prove particularly damaging, not only because of their personal prestige, but also because their messages are more likely to be sought out.
 In contrast, individuals rarely become true public figures by exclusive virtue of their Internet communications (Matt Drudge, being a rare exception, and much of his publicity coming by virtue of traditional media referencing his site).  This disparity is not particularly surprisingly when one considers the near-infinite numbers of low-cost specialty sights and the diffusion of audience viewing.  Thus, a defamatory material conveyed on "Joe Citizen's website" is far less likely to be read than the same posted to Oprah Winfrey's.
 The point being made here: it is less likely that "Joe Citizen" could adequately refute the defamation posted within Oprah's website, by posting a reply on "Joe Citizen.com."30  Sadly, not all websites are created equal.  Therefore, the celebrity attached to various sites and speakers may be relevant when assessing defamation's likelihood of inciting a breach of the peace.
 
IV. CONCLUSION: CYBER-DEFAMATION SHOULD BE CLASSIFIED ON
    A CASE-BY-CASE BASIS, IN LIGHT OF THE DISTINCTION'S
    ORIGINAL PURPOSES
 
 At least one court has suggested that oral broadcast communications could be treated as libel on some occasions, and slander on others.31  So also it should be for the Internet.  The call for applying new, hybrid methodology to defamation in an electronic era is by no means new to our jurisprudence and is long overdue.32
 In fact, I will concurrently argue that a reassessment of our blind adherence to the writing vs. speech distinction is further warranted.  Long the subject of criticism and not always in keeping with the original purposes of our affording the torts differing treatment, one of the implicit themes of this paper has been that a presumption of damages should be allowed only when in accordance with the purposes, and not the mere letter, of the law.  The imminent classification debate over audio-visual cyber-defamation may be the long-awaited vehicle for sparking this reform.
 Now it is your turn, the cyber-litigator, to apply these common law distinctions in a way that does their policies, and your client, justice.
 Libel or slander?  The final determination should be decided as a matter of law, on a case-by-case basis.

1 David Ansen & Ray Sawhill, Now at a Desktop Near You, Newsweek, March 15, 1999 (page unavailable on Westlaw)
2 David Ansen & Ray Sawhill, Now at a Desktop Near You, Newsweek, March 15, 1999 (page unavailable on Westlaw)
3 RESTATEMENT (SECOND) OF TORTS § 568.1 (1977)
4 T. BARTON CARTER, THE FIRST AMENDMENT AND THE FIFTH ESTATE 696 (Fourth ed., Foundation Press, Inc. 1996).
5 John B. McCrory, Constitutional Privilege in Libel Law, 498 PLI/Pat 53, 443 (1997).
6 Gertz v. Robert Welch, Inc. 418 U.S. 323, 439 (1974)
7 Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985)
8 Ibid. at 748 (Brennan dissenting)
9 T. BARTON CARTER, THE FIRST AMENDMENT AND THE FIFTH ESTATE 696 (fourth ed., The Foundation Press, Inc. 1996).
10 David Ansen & Ray Sawhill, Now at a Desktop Near You, Newsweek, March 15, 1999 (page unavailable on Westlaw)
11 T. BARTON CARTER, THE FIRST AMENDMENT AND THE FIFTH ESTATE 696 (fourth ed., The Foundation Press, Inc. 1996).
12 Ibid. at 696
13 RESTATEMENT (SECOND) OF TORTS § 568 cmt. d (1977)
14 RESTATEMENT (SECOND) OF TORTS § 568 cmt. d (1977)
15 RESTATEMENT (SECOND) OF TORTS § 568 cmt. b (1977)
16 John B. McCrory, Constitutional Privilege in Libel Law, 498 PLI/Pat 53, 451 (1997).
17 RESTATEMENT (SECOND) OF TORTS § 568A cmt. a (1977)
18 Michael Hadley, The Gertz Doctrine and Internet Defamation, 84 Va. L. Rev. 477, 505
19 Ibid. at 506
20 Ibid. at 506
21 Gregory v. McDonnell Douglas Corp., 131 Cal.Rptr. 641, 644 (1976).
22 American Broadcasting-Paramount Theaters, Inc., et al. v. Simpson et al., 106 Ga. App. 230, 235
American Broadcasting-Paramount Theaters, Inc., et al. v. Simpson et al., 106 Ga. App. 230, 236, citing Landau v. Columbia Broadcasting System, Inc., 205 Misc. 357 (128 NYS 2d 254) (dramatic television presentation from script held libel) and Remington v. Bentley, 88 FSupp. 166 (SD, NY) (defamatory remark on extemporaneous television program held slander, applying New York law). But see Shor v. Billingsley, 158 NYS 2d 476, holding to the contrary.
23 RESTATEMENT (SECOND) OF TORTS § 568 cmt. a (1977)
24 RESTATEMENT (SECOND) OF TORTS § 568 cmt. b (1977)
25 RESTATEMENT (SECOND) OF TORTS § 568 illus. 3e, 3f (1977)
26 Lyle v. Waddle, 188 S.W.2d 770, 771 (Texas 1945)
27 Florida Star v. B.J.F. 491 U.S. 524, 540 (1989)
28 Smith v. Suburban Restaraunts, Inc. 373 N.E.2d 215, 216 (Mass. 1978)
29 As an extreme example, if someone made slanderous statements about you to the Australian aboriginal
   bushmen, could you honestly claim that your reputation had somehow been harmed in a way so as to
   warrant compensation?  Any such harm, present of future, is likely either nominal or non-existent.
30 Michael Hadley, The Gertz Doctrine and Internet Defamation, 84 Va. L. Rev. 477, 494
31 Greer v. Skyway Broadcasting Co, 256 N.C. 382, 390 (1962)
32 Kelly v. Hoffman, (Wachenfield, J: Dissenting) 137 N.J.L. 695, 701 (1948)