1. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 1 Defamation Tort = State law, so differs state to state Based on common law, so very similar –Slander – spoken –Libel - written –Directed at goods or services = Disparagement Must show four elements to prove case

2. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 2 1st Element of Proof Required A fact made about another’s reputation or business –Can be by direct evidence, innuendo, insinuation, reference –Has to be understood to be about the plaintiff –No cause of action if plaintiff is deceased

3. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 3 2nd element Made to a third party –E-Mail is so accessible that plaintiff would have a hard time proving he didn’t know others would see it

4. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 4 3rd element Must show some degree of fault or negligence –if public figure, must show actual malice (reckless disregard of the truth) –if regular person, must show did not use reasonable care (negligent)

5. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 5 4th element Must result in damages –with libel there is the presumption of damages –with slander, must prove, unless slander per se accusing another of committing a serious crime accusing another of having a loathsome or communicable disease injuring another in their business or profession in some state, accusing a woman of being unchaste

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

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

8. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 8 Qualified Privilege Rebuttal, within reason Reference for a job or other position Newsworthiness - when talking about a public figure or official –the press have this privilege to tell us about the famous –for defamation, have to prove they told an untruth with actual malice

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

10. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 10 Common Carriers are not Liable for Defamation –Common Carriers, telephone and telegraph, have been held to not have any control over the content of the material and therefore are not liable

11. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 11 Distributors, vendors or bookstores are not liable for defamation Smith v. California: proprietor of bookstore not liable for obscenity because didn’t know what was in the book –Can’t be liable for obscenity unless the vendor knows what the content is (not that it is obscene) –So can’t be liable for defamation if don’t know what is in the book

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

13. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 13 Are Online Service Providers Common Carriers? Are they common carriers? distributors, publishers? Lunney v. Prodigy: Prodigy was just a conduit, not a publisher of profane and threatening messages

14. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 14 What is a Publication in the Internet Environment? It’s in the Cards, Inc. v. Fuschetto: Question: was a computer subscription service accessible anytime by its users a periodical? and therefore a publication?. –Court said no because it did not appear on a regular basis, posting was random communication analogous to posting a written notice on a public bulletin board

15. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 15 Who is a Publisher? Cubby, Inc. v. CompuServe, Inc. –Facts: Provides a service: CIS = General information or “electronic” library CIS subscribers can access over 150 special interest “forums” comprised of bulletin boards, interactive chat rooms, and databases = “Journalism Forum” Rumorville, USA is a daily newsletter available on a forum providing reports about broadcast journalism and journalists CompuServe hired Cameron Communications, Inc. (CCI) to monitor and control the Forum’s content in accordance with standards established by CompuServe

16. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 16 Publisher? Continued…. –Plaintiff Chubby competed with CompuServ by developing Skuttlebut, a computer database designed to publish and distribute electronically news and gossip about the television and radio industries –Chubby sued CompuServe and Rumorville for publishing defamatory remarks about Scuttlebut on the Forum. Law –First Amendment says that a person has to have control over content to be a publisher –CompuServe said it had no control over content, that it was a distributor Holding: –Compuserve had no control over content – not a publisher

17. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 17 Publisher? Continued Stratton Oakmont, Inc. v. Prodigy Services Company –Facts: Prodigy owns and operates a computer network with bulletin boards that can be accessed by its subscribers Prodigy did exercise control over content of messages posted on its BBs in trying to be responsible 1994 statements about plaintiffs appeared on “Money Talk” bulletin board Prodigy hired managers or board leaders to monitor and edit the content of the publications published on Money Talk. Defamatory remarks about Stratton, a securities investment banking firm and its president

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

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

20. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 20 CDA Section 230 No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider. Zeran v. AOL Sidney Blumenthal v. Matt Drudge and AOL, Inc.

21. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 21 Zeran Facts: –Defamatory info about Zeran and the Oklahoma bombing posted on AOL BB –AOL did not close account of defamer –Radio station urged listened to protest to Zeran –Newspaper published that it was a hoax Law –Zeran sued AOL for defamation on its BB That AOL knew of content of messages on BB AOL defended on grounds of CDA section 230 Holding: –Suit filed two months after 230 became effective – AOL not liable

22. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 22 Blumenthal –Facts: Drudge is author of electronic gossip column Drudge contracted with AOL to make his column available to AOL members AOL could remove content AOL advertised that it was rumor and gossip Defamation about Blumenthal – spousal abuse AOL publisher? –Law: State defamation law versus CDA –Holding CDA gives absolute immunity even if ISP knows of content

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

24. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 24 Anonymous Speech and Defamation Usually protected by freedom of speech What about anonymous defamation? –Can plaintiffs force revelation of authors? Recording Industry Association of America v. Verizon Internet Services, Inc. –To discover identity of subscriber who had downloaded 600 songs in one day –Freedom of speech does not extend to copyright infringement –Verizon appealed

25. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 25 Ct. Established Principles to Subpoena Identity of Anonymous Defamer Dendrite International Inc., v. John Doe –In order to subpoena the identity of the anonymous defendant Post a notice of the subpoena addressed to the defendant (john doe) on the relevant message board Provide the court with the content of the alleged defamatory statements Establish a prima facie case of defamation exists against the defendant Court must then weigh harm of defamation against freedom of remaining anonymous

26. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 26 SLAPP Suits Strategic Lawsuits Against Public Participation –McDonald v. Paton Anti-SLAPP law applied to cyberspace Defendant operated an interactive town forum Web site Residents of the “town” could post their opinions Plaintiff was a town selectman and candidate for reelection who was referred to as a “Gestapo agent” Plaintiff lost election and brought SLAPP suit Defendant sought to dismiss under the anti-SLAPP statute – won

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

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

29. (c) 2004 West Legal Studies in Business A Division of Thomson Learning 29 International Regulation of Online Defamation Occurs in country where material is accessed? –Ellis v. Time (1997) Act of State Doctrine applies Forum shopping by plaintiffs