Online defamation

ONLINE DEFAMATION SUITS IN THE UNITED STATES

Communications Decency Act

Barrett v. Rosenthal is a 2006 California Supreme Court case concerning online defamation. The case resolved a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. They alleged that the defendants had republished libelous information about them on the internet. In a unanimous decision, the court held that Rosenthal was a "user of interactive computer services" and therefore immune from liability under Section 230 of the Communications Decency Act.

California Supreme Court Decision

The California Supreme Court reversed a judgment by the California Court of Appeals, First District, which would have allowed a trial on one of the defamation claims. The lower court's decision was the first opinion to break from Zeran v. America Online, Inc. by holding that Section 230 immunity was not absolute for common law distributors. In reversing the Court of Appeals, the California Supreme Court reaffirmed Zeran and directed that all claims against the defendants be dismissed.

The American Civil Liberties Union, the Electronic Frontier Foundation, and a number of internet corporations — including Google, Yahoo!, and AOL — filed briefs on behalf of the defendant, arguing that only the originator of a defamatory statement published on the internet could be held liable. In the majority opinion, Justice Corrigan observed that the plain language of Section 230 shows that "Congress did not intend for an internet user to be treated differently than an internet provider." Both had immunity from liability for the republication of defamatory content on the internet.

Immunity of Bloggers and Forums from Suits

Federal Court Reaffirms Immunity of Bloggers and Forums from Suits Brought Against Commenters: Section 230 of the Communications Decency Act provides that "[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." A recent decision of the First Circuit has reaffirmed the broad protection this statute provides to bloggers and message board administrators.

In Universal Communication Systems v. Lycos, a company who had allegedly been victimized by defamatory statements on a message board regarding the value of its stock sued Lycos, which operated the board. The message board allowed users to post comments with minimal moderation, and no one from Lycos was responsible for the allegedly defamatory statements.

Examining the impact of Sec. 230 on this case, the court noted that "Congress intended that, within broad limits, message board operators would not be held responsible for the postings made by others on that board," adding that allowing bloggers and message board operators to be sued for the statements of commenters on their sites would have an "obvious chilling effect" on speech. Accordingly, the court dismissed the complaint against Lycos.

As reported by p2pnet, the UK Ministry of Justice is re-evaluating an 1848 English precedent, which is likely to have far reaching implications for the future of internet publishing.


ONLINE DEFAMATION LAWS IN GREAT BRITAIN

The public consultation paper by the UK Ministry of Justice raises questions regarding the continuing appropriateness of the principle in the Duke of Brunswick case in today’s internet publishing world. The Ministry is assessing the relevancy of the so called 160 year old multiple publication rule against the backdrop of advances in technological development. These technological advances mean that single statements can reach millions of people in different jurisdictions, giving rise worldwide dissemination of single statements.

Brunswick v. Hamer Case

The rule was first enunciated in the English case of Brunswick v Hamer (1849) 14 QB 185. This old libel case still governs the law of libel on the internet under English law, Irish law and in most Commonwealth jurisdictions. The effect of the ruling is that each individual libellous publication gives rise to a separate cause of action, with a separate limitation period attached to it.

The Duke of Brunswick case involved an exiled German ruler Karl 11, Duke of Brunswick and Luneberg; the Duke of Brunswick 8 Luneberg (1804-1873). After finding out in 1848, 17 years later that he had been defamed in an old London newspaper, the Duke sent his servant to procure a copy of the article published in 1830. As the then six year limitation period for bringing an action for defamation had expired, the Duke relied upon the sending of his servant to procure copies of the offending article to bring defamation proceedings for injury to his reputation.

Reform of Libel Law in the UK

The global nature of the internet renders all online publishers, website owners and ISPs (irrespective of their geographical location or the location of the servers upon which the material they published is situated), vulnerable to the relatively generous body of UK defamation law. The absence of a single publication rule also exposes publishers of online internet archives to defamation for material placed online for many years after the original publication.

Whilst there is potential protection for ISPs as re-publishers of defamatory material, the extent of that coverage is unclear, encouraging online intermediaries to take a conservative approach when publishing online. Where publishers act quickly to remove allegedly defamatory material they are more likely to be held harmless for their publication. The desirability of minimising loss leads to a form of censorship of investigative journalism.


ONLINE DEFAMATION SUITS IN CANADA

Cohen v. Google

Online defamation has always been about two issues: there’s the legal question of whether the online comments are “defamatory” according to the standard legal tests, but before you get to that stage, you need to know who is writing the defamatory comments.

That’s often where the inquiry starts and stops. Since online anonymity is so hard to pierce, the identity of the poster of defamatory comments is never known, and the person who is defamed has no-one to sue for defamation. A recent court order has shed some light on the process of getting over that anonymity hurdle. In the case of Cohen v. Google Inc., Index No. 100012/09 (N.Y. Co. August 17, 2009) (Madden, J., J.S.C.), a Canadian model has obtained an order compelling Google to disclose the identity of the author of the alleged defamatory comments. “Pre-complaint disclosure” is not new, but this case has attracted attention because of the elements: a New York model, Google, and blogging.

In Canada, similar orders have been made in online defemation cases. In a 2009 decision in the case of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of eight anonymous posters in a defamation case.

[olive]

It is fairly easy to get IP addresses etc., and sue the defaming blogger if he truly is defaming somebody.