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Online Libel

February 6, 2007

Technology Today

As many have already recognized, the Internet is a medium unlike any other that came before it. It has dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate.

Unlike just a short number of years ago, when many citizens were "barred from meaningful participation in public discourse by financial or status inequalities" and a relatively small number of powerful speakers could "dominate the marketplace of ideas,"[1] the Internet now allows anyone with a phone or cable line, or access to a wireless connection, to become "a town crier with a voice that resonates farther than it could from any soapbox."[2] Through the Internet, speakers can bypass mainstream media; indeed, speakers on Internet chat rooms and blogs can speak directly to other people with similar interests.

Not only is Internet speech easy, it is often anonymous. As one commentator has observed, "[m]any participants in cyberspace discussions employ pseudonymous identities," and, even when a speaker chooses to reveal her real name, the speaker still may be anonymous for all practical purposes.[3]

Businesses of all sizes have been subjected to complaints, unsubstantiated allegations, vendettas, embarrassing revelations, and even libelous statements broadcast over the Internet. Individuals also have had to face Internet postings that range from discomforting to defamatory, with private moments and confidential information disclosed, debated, and denigrated.

Naturally, many people and companies have gone to court in an effort to have the postings to which they object removed from the Internet or for an award of damages to salve their wounds. A number of recent decisions, from various courts across the country, suggest how difficult it is to obtain a judicial remedy in these circumstances. These opinions also are helping to define the legal status of the Internet, especially with respect to the media that have preceded it.

Section 230

Consider the recent decision by the California Supreme Court in Barrett v. Rosenthal.[4] As explained by the court, the plaintiffs in this case operated Web sites devoted to exposing health frauds, and the individual defendant operated an Internet discussion group.

The plaintiffs alleged that the defendant had committed libel by maliciously distributing defamatory statements in e-mails and postings, impugning the plaintiffs' character and competence, and disparaging their efforts to combat fraud. They also alleged that the individual defendant had republished various messages even after she had been warned that they contained false and defamatory information. [5]

The California court concluded that the individual defendant was immune from liability under Section 230 of the Communications Decency Act of 1996 ("CDA").[6] It held that, by its terms, Section 230 exempts Internet intermediaries from defamation liability for republication. As the court explained, the statutory immunity "serves to protect online freedom of expression and to encourage self-regulation, as Congress intended." Simply put, Section 230 does not permit Internet service providers or users to be sued as "distributors," nor does it expose "active users" to liability, the court ruled.

The court noted that the plaintiffs were free under Section 230 to pursue the originator of a defamatory Internet publication. But, as other decisions suggest, that is not an easy course to take.

Disclosure Standard

For one thing, it may not be so easy to find out the names or identity of the individuals who post objectionable content.

In Doe v. Cahill,[7] the defendant John Doe No.1 anonymously posted allegedly defamatory statements about a city councilman on a blog sponsored by the Delaware State News.

The councilman brought a defamation action and, seeking to serve process on Doe, sought to compel the disclosure of his identity from the owner of the blog. The councilman obtained a court order requiring the Comcast Corporation to disclose Doe's identity.

As required by federal law,[8] when Comcast received the discovery request, it notified Doe. Thereafter, Doe filed an emergency motion for a protective order seeking to prevent the councilman from obtaining his identity from Comcast. The dispute reached the Delaware Supreme Court, which adopted a standard for trial courts to apply when faced with a public figure plaintiff's discovery request seeking to unmask the identity of an anonymous defendant who had posted allegedly defamatory material. Under these circumstances, the court held, a defamation plaintiff must satisfy a "summary judgment" standard before obtaining the identity of an anonymous defendant.

The court reasoned that setting the standard too low would chill potential posters from exercising their First Amendment right to speak anonymously; it noted that there was "reason to believe" that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics.

It added that one trial court had adopted a good faith standard for determining whether to grant a defamation plaintiff's discovery request seeking to unmask the identity of an anonymous defendant.[9] In that case, the court held that a non-party Internet Service Provider should provide information concerning the identity of an anonymous subscriber only when the court is satisfied by the pleadings or the evidence supplied to that court that the party requesting the subpoena had a legitimate, good faith basis to contend that it may be the victim of actionable conduct and the subpoenaed identity information is centrally needed to advance that claim.

The Delaware Supreme Court found that this "good faith" standard was "too easily satisfied" to sufficiently protect a defendant's right to speak anonymously. It then held that before a defamation plaintiff could obtain the identity of an anonymous defendant through the compulsory discovery process, the plaintiff must support a defamation claim with facts sufficient to defeat a summary judgment motion.

Interestingly, the court then applied the standard. It noted that at least one reader of the blog "quickly reached the conclusion that Doe's comments were no more than unfounded and unconvincing opinion." In the court's view, given the "context of the statement" and the "normally (and inherently) unreliable nature of assertions posted in chat rooms and on blogs," this was the only supportable conclusion.

Accordingly, it held that as a matter of law a reasonable person would not interpret Doe's statements as stating facts about the councilman. Because the statements were, therefore, incapable of a defamatory meaning, the complaint had to be dismissed.

Preliminary Injunctions

Courts also are reluctant to grant preliminary injunctive relief in cases involving claims of online defamation, as illustrated in Bynog v. SL Green Realty Corp.[10]

In this case, the plaintiff brought suit against SL Green Realty Corp. and other entities in connection with her termination from employment by SL Green. The defendants moved for a preliminary injunction concerning the plaintiff's post-termination activities.

Specifically, the defendants sought to enjoin her from, among other things, publishing allegedly libelous statements regarding defendants on her Web site. The defendants contended that the plaintiff had commenced "a malicious campaign to harm [them], damage their professional reputations and to interfere with their present and prospective business relationships."

The U.S. District Court for the Southern District of New York rejected the defendants' motion for a preliminary injunction. It observed that it was "well-established" that in the context of speech, a preliminary injunction that imposes a prior restraint "bears a heavy presumption against its constitutional validity."

Applying that standard to the Internet, the court found that the defendants failed to meet their burden of persuasion and had not made any clear showing that this case presented the extraordinary circumstances necessary to warrant preliminary injunctive relief.

Because of the strong presumption against the prior restraint of expression, established law against issuing preliminary injunctions in cases involving defamation, and the defendants' failure to demonstrate irreparable harm, the court concluded that a preliminary injunction was inappropriate.

Conclusion

Numerous actions have been filed and continue to be filed by plaintiffs objecting to Internet content for one reason or another.[11]

Federal law such as Section 230 of the Communications Decency Act, First Amendment principles, and other rules of law may frustrate businesses and individuals seeking to put a stop to damaging posts or to recover awards for the harm they believe they have suffered.

Vigilance about Internet postings is necessary, and careful analysis of all legal issues before bringing suit can help lower costs and make claims that are filed more likely to be successful.

NOTES:
[1] Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 896 (2000).
[2] Reno v. ACLU, 521 U.S. 844, 896-97 (1997).
[3] Id.
[4] 40 Cal. 4th 33 (2006).
[5] The complaint summarized the allegedly defamatory statements about one of the plaintiffs as follows: "[He] is arrogant, bizarre, closed-minded; emotionally disturbed, professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun for vested interests, the leader of a subversive organization, and engaged in criminal activity (conspiracy, extortion, filing a false police report, and other unspecified acts.)"
[7] 47 U.S.C. ยง 230.
[8] 884 A.2d 451 (Del. 2005).
[9] 47 U.S.C. 551(c)(2) requires a court order to a cable ISP and notice to the ISP subscriber before an ISP can disclose the identity of its subscriber to a third party.
[10] In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. Cir. Ct. 2000), rev'd on other grounds, 542 S.E.2d 377 (Va. 2001).
[11] 2005 U.S. Dist. Lexis 34617 (S.D.N.Y. Dec. 22, 2005).
[12] See, e.g., Laura Parker, "Courts are asked to crack down on bloggers, websites," USA Today, Oct. 2, 2006; see, also, cases discussed at http://www.medialaw.org/Content/NavigationMenu/Member_Resources/Litigation_Resources/Materials_by_Issue/Lawsuits_Against_Bloggers/Lawsuits_Against_Bloggers.htm.

Reprinted with permission from the February 6, 2007 issue of the New York Law Journal. Copyright ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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Shari Claire Lewis, Partner

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