Defamation Law in Turmoil:
The Challenges Presented by the Internet
Professor Russell L Weaver
Louis D Brandeis School of Law
University of Louisville
This article provides a comparative look at defamation law, as it currently stands, and examines ways in which the internet may have cross-jurisdictional impact. The article concludes that the internet is likely to produce a significant loosening of speech restrictions.
Keywords: Defamation, the Internet
This is a Refereed article published on 31 October 2000.
Citation: Weaver R, 'Defamation Law in Turmoil: The Challenges Presented by the Internet', 2000 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-3/weaver.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_3/weaver/>
The internet has revolutionized communications, and has the potential to dramatically alter the tort of defamation. That tort involves a clash between the societal interest in free speech and the individual interest in reputation, and countries have chosen to strike the balance between those interests differently. Some countries have defamation laws that are more pro-plaintiff (meaning that it is easier for defamation plaintiffs to recover) while others have laws that are more pro-defendant (meaning that it is more difficult for defamation plaintiffs to recover). The balance a government strikes can (and often does) have a major impact on the openness of a country's press and on the amount of information available to the public.
The internet threatens to breakdown many of the differences between societies. As will be discussed more fully below, the ease of internet communications challenges many assumptions that underlie traditional defamation law, especially in the US. In addition, because the internet is so accessible, and provides such an efficient means of communicating information, the likelihood of interjurisdictional defamation litigation increases. However, because of practical considerations, the internet threatens to break down barriers between countries, making it difficult to control or regulate defamation, and thereby diminishing the effectiveness of that tort as a means of protecting individual dignity and reputation.
This paper does several things. First, it analyzes existing defamation laws in an effort to show how differently defamation is handled in various countries. Second, it analyzes how the media in the affected countries responds to these different laws. Finally, it analyzes how the internet (and cyberspace generally) undercuts many traditional assumptions about defamation actions, and potentially revolutionizes this tort.
2. Pre-Internet Differences in Defamation Law
Prior to the development of cyberspace, individual countries had considerable freedom to define the tort of defamation within their own borders. That freedom has resulted in some profound differences in approach. For example, Britain provides limited protection to the press and media when they criticize governmental officials, and therefore tends to be more 'pro-plaintiff'. In order to recover, plaintiffs need only show that the press or media made defamatory statements that referred to them or that reasonable people would regard as referring to the plaintiff (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989)). In theory, an additional requirement exists - that the statements must have been maliciously published. But this requirement is, in the words of a leading commentator, 'purely formal' (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989) at 315). 'Though the word [maliciously] is usually inserted in the plaintiff's statement of claim, no one takes any notice of it at trial except for the purpose of inflating damages where there has been spite or deliberateness' (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989) at 315). The British media does have a privilege of fair comment (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989) at 324-33). But the scope of this right is severely limited; it protects only assertions of opinion, and not assertions of fact (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989) at 324-25). Britain recognizes privileges other than fair comment, but virtually all of them require that all reporting be fair and accurate (W. Horton Rogers, Winfield and Jolowicz on Tort 302-21 (13th ed. 1989) at 333-45).
In the US, because of the US Supreme Court's decision in New York Times Co. v. Sullivan (376 US 254 (1964)), US defamation law has been very pro-defendant. In order to recover for defamation, a 'public official' or a 'public figure' must show that the defendant acted with actual malice. In other words, the official or the public figure must show that the defendant knew that the statement was false, or acted in reckless disregard for its truth or falsity. As discussed below, the US applies a lesser standard when a private individual is defamed. (See Gertz v. Robert Welch, inc., 418 US 323 (1974))
Australia, by contrast, adopts more of a middle-ground approach. In Theophanous v. The Herald & Weekly Times Ltd. ((1994) 182 CLR 104) and Stephens v. Western Australian Newspapers Ltd. ((1994) 182 CLR 211), the High Court defined the right of speech to include protections against defamation liability. In Theophanous, the High Court adopted a modified version of the New York Times 'actual malice' standard which shifted the burden of proof to the defendant, and altered the burden so that recovery was not permitted unless defendant was: 1) unaware of the falsity of the material published; 2) did not publish the material recklessly without concern for whether the material was true or false; & 3) the publication was reasonable under the circumstances. Moreover, Theophanous only applied to discussions of government or political matters, or discussions regarding the suitability and performance of governmental officials (or, presumably, those seeking office). Although Theophanous and Stevens were undercut by the High Court's subsequent decision in Lange v. Australian Broadcasting Corp. ( 71 A.L.J.R. 818), Australia still ends up with a middle ground approach. In Lange , High Court upheld a New South Wales Defamation Act even though it did not provide the full panoply of protections imposed by Theophanous, but was similar in that it protected matter 'published to any person where the recipient had an interest or apparent interest in having information on a subject, the matter was published in the course of giving information on that subject to a recipient, and the conduct of the publisher in publishing the matter was reasonable in the circumstances'.
3. The Pre-Internet Effect of Existing Defamation Laws
Most studies of the effect of defamation laws focuses on the broadcast and print media rather than the internet. However, in the print and broadcast areas, the legal differences between Australia, the US, and England, have produced fairly remarkable differences in approach by the media in the three countries. Between 1990 and the present, this author interviewed broadcast and print journalists, as well as editors, producers and defamation lawyers, in all three countries. These interviews revealed striking differences in the way the media functions in the three countries. The most dramatic differences were found between the US and Britain, but the Australia media functioned much like the British media.
Interestingly enough, there is a dichotomy between the way the British press is perceived and the way it actually functions. Most casual observers of the British media see it as a 'rough and tumble' press that feels free to make hard-hitting allegations against governmental officials. The reality is much different. The British media frankly admits that defamation laws have a significant impact on its coverage by giving plaintiffs an 'easy run' and because quite small errors can lead to substantial judgments. (See Weaver & Bennett, supra note 1, at 1169-70) In addition, historically, defamation cases have resulted in relatively large judgments (See Weaver & Bennett, supra note 1, at 1169-70), a situation that may have been alleviated by recent decisions limiting the amount of recovery in defamation cases. (See Elton v. M.G.N. Ltd.  3 W.L.R. 593.)
British newspapers and broadcasters receive fairly large numbers of defamation complaints, and even quality newspapers can receive two or more letters per week. (See Weaver & Bennett, supra note 1, at 1170.) If the paper or broadcaster feels that a statement was inaccurate, it will usually offer to retract the statement (See Weaver & Bennett, supra note 1, at 1170.) and may offer to pay a small amount of damages. (See Weaver & Bennett, supra note 1, at 1170.) (See Weaver & Bennett, supra note 1, at 1170.) About ten percent of all complaints cannot be settled and result in litigation. (See Weaver & Bennett, supra note 1, at 1170.) These letters and suits have a dramatic effect on day-to-day news coverage in Britain. Because insurance is expensive, the media finds that the most efficient way to avoid retractions and damage settlements is by acting with caution. (See Weaver & Bennett, supra note 1, at 1171.) So, publishers find that the best way to protect themselves is through careful reporting, but the thoroughness of the review process is startling. (See Weaver & Bennett, supra note 1, at 1171.) Most newspapers and broadcasters have teams of lawyers who review each day's paper or program for material that might be defamatory. (See Weaver & Bennett, supra note 1, at 1271-72.) If a lawyer flags an article as potentially defamatory, a secondary review process is then triggered. At most newspapers, editors (and sometimes lawyers) meet with reporters who wrote the story in an effort to determine the basis for allegations. (See Weaver & Bennett, supra note 1, at 1172.) Throughout the process, the focus is on legal sufficiency: 1) Is the statement true? 2) Can they prove it? 3) Is the person mentioned likely to file suit? (See Weaver & Bennett, supra note 1, at 1172.)
All media organizations indicated that, as a matter of journalistic ethics, they did not want to print or broadcast anything that is untrue, but all stated that they were not able to publish everything that they believed was true. (See Weaver & Bennett, supra note 1, at 1172.) Most focused on whether, if their organization was called to account for a story, it would have legally admissible evidence available to defend itself. (See Weaver & Bennett, supra note 1, at 1172.) Editors consider whether, even if evidence is admissible, the sources are willing to go 'into the box' and testify. Editors are reluctant to rely on evidence learned from a source that they can't expose, or who is likely to go 'wobbly'. (See Weaver & Bennett, supra note 1, at 1172.) Editors will also consider whether the subject of the article is someone who is likely to sue, and editors are less inclined to take risks regarding particularly litigious individuals. (See Weaver & Bennett, supra note 1, at 1173.)
Few articles are scrapped, but many articles are rewritten or altered in a way that limits the organization's exposure to liability, (See Weaver & Bennett, supra note 1, at 1173.) or a statement of fact is changed to an opinion in order to make the statement a 'comment' and thereby invoke the privilege of fair comment. (See Weaver & Bennett, supra note 1, at 1173.) Even though few stories are scrapped, Britain's defamation laws take an inevitable toll on political reporting. Editors will print allegations against public officials, but they rarely do so except when there is strong supporting evidence. (See Weaver & Bennett, supra note 1, at 1173.) The 'chilling' effect of British defamation law is dramatically revealed by the case of Robert Maxwell, the British publishing magnate who died mysteriously off the coast of the Canary Islands in 1992. Following his death, it was discovered that he had suffered serious financial reverses. In addition, he had looted his companies thereby causing major losses to British pensioners. Some suggested that Maxwell's financial problems would have come to light earlier except for Maxwell's litigious nature which caused the British press to be reluctant to make allegations against him. (See Weaver & Bennett, supra note 1, at 1175.) British editors and lawyers flatly stated that they were well aware of Maxwell's litigious nature, and that they were quite careful about their reporting on him. (See Weaver & Bennett, supra note 1, at 1175.) One defamation lawyer stated that he routinely demanded proof that 'one hundred percent' of all allegations made against Maxwell were accurate. (See Weaver & Bennett, supra note 1, at 1175.) Publishers would make allegations against Maxwell when they had strong evidence to support their allegations, but they would not publish absent compelling proof. (See Weaver & Bennett, supra note 1, at 1175.) Editors were much more willing to print allegations against Rupert Murdoch another British publishing magnate who is less litigious. (See Weaver & Bennett, supra note 1, at 1175.)
Britain's defamation laws do, however, have one positive effect: they encourage newspapers and broadcasters to make sure that their reporting is even-handed. Because they fear the possibility of liability, British editors tend to check and recheck their stories. (See Weaver & Bennett, supra note 1, at 1176.) In addition, because of their fear of defamation suits, British newspapers and broadcasters have become remarkably adept at finding ways to get material into print. For example, the British media takes advantage of various privileges including the absolute privileges for accurate reporting of parliamentary debates (Winfield & Jolowicz, supra note 3, at 195.) and judicial proceedings. (Winfield & Jolowicz, supra note 3, at 208.) Indeed, a review of British newspapers suggests that many hard-hitting pieces are carefully sculpted pieces based on statements rendered in privileged contexts. (Weaver & Bennett, supra note 1, at 1178.) When newspapers gain information about a scandal, but feel that they do not have enough legally admissible evidence to support their allegations, they sometimes ask an MP to raise the matter during 'question time.' (Weaver & Bennett, supra note 1, at 1178.) The press is then free to report on the question and the response, if any. If the paper feels strongly enough about a matter, they might ask an MP to schedule a matter for an 'early day motion' - a motion suggesting that a matter has troubling implications and should be investigated. (Weaver & Bennett, supra note 1, at 1178.) Despite the British press' resourcefulness, it is unable to report on many matters of public interest. The press must have sufficient evidence of wrongdoing before it can ask an MP to ask a question or file an early day motion.
By contrast, the US media is much less restrained in its ability to publish on matters of current interest. Despite recent studies, suggesting that defamation litigation has chilled the US media (See Anthony Lewis, New York Times, Inc. v. Sullivan Reconsidered: Time to Return to 'The Central Meaning of the First Amendment , 83 Colum. L. Rev. 603 (1983)), the evidence is soundly to the contrary. Most US editors and journalists flatly stated that defamation laws have no impact on their coverage. (See Weaver & Bennett, supra note 1, at 1182-83.) The reason US newspapers and broadcasters are less concerned about defamation is because they are threatened with suit, and actually sued, far less frequently than their British counterparts. (See Weaver & Bennett, supra note 1, at 1183.) A US paper might be threatened with suit only a few times a year, and might be sued only once a year or once every other year, if at all. (See Weaver & Bennett, supra note 1, at 1183.)
Editors and producers are not so relaxed that they ignore the possibility of a defamation liability. However, because the threat of suit is much lower, they often tend be more worried about other matters (i.e., journalistic accuracy and integrity) than they are about the threat of liability. (See Weaver & Bennett, supra note 1, at 1183.) Producers and editors stated that for professional reasons, they want to report accurately and did not want to report something that is untrue or that cannot be supported. (See Weaver & Bennett, supra note 1, at 1183-84.) But the primary reason for withholding such information was that the editor was concerned about the ethics of publishing it, and also feared that questionable allegations might diminish their credibility or harm their standing in the community. (See Weaver & Bennett, supra note 1, at 1184.) Some argued that it is difficult to differentiate between what is done for reasons of journalistic integrity and what is done for fear of defamation liability. (See Weaver & Bennett, supra note 1, at 1184.) Journalists stated that few situations would arise when someone might be fearful of liability when they would not also have concerns about whether they were being fair as a journalist. (See Weaver & Bennett, supra note 1, at 1184.)
These attitudes are reflected in the day-to-day functioning of US newspapers and broadcasters. Unlike the British, US newspapers and broadcasters do not have teams of lawyers that comb through copy searching for material that may be defamatory. ( See Weaver & Bennett, supra note 1, at 1184.) Most papers and broadcasters allow editors and producers to decide for themselves whether material is potentially defamatory, and whether to involve counsel. (See Weaver & Bennett, supra note 1, at 1184.) If an editor or producer feels comfortable with a piece, he may publish or air it without any input from counsel.
When US editors or producers involve their lawyers, they use a process that is similar to that used by their English counterparts. The attorney examines the statement, and examines the reporter's sources in an effort to ascertain whether there is adequate evidence to support the assertion. (See Weaver & Bennett, supra note 1, at 1184.) Thus, the possibility of defamation suits has some impact on reporting, but most interviewees suggested that the impact was minimal. Few editors or producers reported that they had ever killed a story for fear of defamation liability. (See Weaver & Bennett, supra note 1, at 1185.) Moreover, few indicated that they were unable to make a statement for fear of liability. They were often reluctant to rely entirely on confidential sources. (See Weaver & Bennett, supra note 1, at 1185.) In addition, if they had inadequate support for a piece, they might seek additional support, might soften a statement, or attempt to present it in a more balanced way. (See Weaver & Bennett, supra note 1, at 1185.) But there is no Maxwell parallel in the United States in the sense of a particularly litigious individual who scares newspapers and stunts their coverage of him. (See Weaver & Bennett, supra note 1, at 1186.) Some media reported that they receive threats designed to discourage them from airing allegations, but these threats do not have much effect on coverage (except in one celebrated case). (See Weaver & Bennett, supra note 1, at 1186.) In rare instances, editors will soften or alter stories to protect themselves, but they rarely kill a story. (See Weaver & Bennett, supra note 1, at 1186.) Moreover, they do not seem to fear any particular individual like the British media feared Maxwell. ( See Weaver & Bennett, supra note 1, at 1186.)
Even though few US journalists complained that defamation laws prevented them from publishing material, many complained about journalists who felt that they could publish anything. Mr. Stephen Friedman stated that some journalists believe that they can air anything they want simply because they are journalists. (See Weaver & Bennett, supra note 1, at 1186.)
Interestingly, even though Australia has adopted more of a middle ground approach to defamation, its media tends to function more like the British media. The Australian interview results will be the subject of a forthcoming book by this author.
4. The Internet's Impact on Defamation Litigation
How will cyberspace affect defamation litigation, and how will it affect the communication of information? It seems clear that the internet will have a profound effect.
4.1 A Leveling Effect?
One effect of the internet may be a levelling of defamation standards. This leveling may occur because internet communications can easily be transmitted across jurisdictional boundaries so that a defamation defendant who resides in a very pro-defendant jurisdiction (i.e., the US) may transmit information into a pro-plaintiff jurisdiction (i.e. , the U.K.). If internet defendants can be made to answer in pro-plaintiff jurisdictions, there is a very real risk that potential defendants will restrict their speech to conform to the laws of the most restrictive jurisdiction to which they transmit information. Indeed, there is some evidence that some US broadcast and print media soften stories for the international market. (See Weaver & Bennett, supra note 1, at 1188.)
Whether studies of the broadcast and print media will apply to internet communications is far from clear. Indeed, if the internet has a levelling effect on defamation, it might have the opposite effect: it may make individuals feel more free to communicate information. In theory, an internet defamation plaintiff located in a pro-plaintiff jurisdiction (i.e., Britain) can bring an action against a defendant who transmits from a pro-defendant jurisdiction (i.e., the US) in the pro-plaintiff jurisdiction. In reality, practical considerations may make such trans-jurisdictional litigation unrealistic. The most noteworthy aspect of the internet is its democratic nature. Prices for personal computers have been falling, and anyone with a personal computer, a modem, and an internet hookup can gain access to the internet. Those who cannot afford even this basic equipment can gain access through an employer, a local library, or a 'cybercafe.' Once someone gains access to the internet, it is relatively easy and inexpensive to communicate information across jurisdictional boundaries. From a defamation perspective, this makes transjurisdictional defamation suits more problematic. While it may be worthwhile to bring a trans-jurisdictional suit against a large media conglomerate which has assets all over the world, it may not be financially worthwhile to pursue defendants with few assets, especially defendants who reside in other countries.
Even if plaintiffs can obtain judgments, it may be difficult to enforce those judgment trans-jurisdictionally. If the defendant communicates information from the US, the First Amendment to the US Constitution may preclude enforcement. In Matusevitch v. Telnikoff (877 F.Supp. 1 (D.C. Cir. 1995)), a US court refused to enforce a British defamation judgment on the basis that the suit involved protected speech, and that enforcement of the British judgment would violate the First Amendment to the US Constitution (as well as US public policy). So, although a defamation plaintiff may be able to sue a defendant in another jurisdiction, recovery of the judgment may be problematic unless the defendant's assets can be found in a country which provides defamation defendants with fewer protections. Moreover, an unenforced judgment is unlikely to deter the defendant from punishing further allegations.
The realities of trans-jurisdictional defamation litigation will make it difficult for a government to use defamation as a means of political repression. Dissidents who want to transmit allegedly defamatory information to their home country can easily do so through the internet, and can do so at distance. Even if the defamed governmental officials can sue one dissident, and even if they gain a recovery, the defendant may be impecunious (or relatively so) so that the plaintiff gains little. Indeed, a relatively sophisticated plaintiff may transmit information through anonymous remailers which strip all identifying marks off the original communication so that it is difficult or impossible to identify the source of the defamation. The bottom line is that, for a government that actively tries to control the flow of information about itself, the internet is a nightmare because a successful judgment does not deter future defamation.
In theory, a government might be able to use other remedies against the dissidents, including injunctive relief, and the possibility of a criminal defamation action. The difficulty is that the availability of injunctive relief, as well as a criminal defamation action is heavily dependent on where the dissidents reside. If they reside outside the country where the defamed government exists, it may be difficult to use these remedies. In the US, injunctive relief is effectively precluded by decisions such as Near v. Minnesota (283 US 697 (1931)). That case involved a suit by the county attorney of Hennepin county who sued to enjoin publication of what was described as a 'malicious, scandalous and defamatory newspaper.' In Near, the Supreme Court rejected the injunction articulating a broad rule against prior restraints. In addition, it will be virtually impossible to bring a criminal defamation action in the US While criminal defamation actions were permissible at one point, the US Supreme Court's holding in N.Y. Times Co. v. Sullivan effectively precludes so-called seditious libel prosecutions now.
The practical problems multiply when a group of dissidents decide to act in concert. Even if a defamation plaintiff can gain a judgment against one dissident, there is nothing to prevent other dissidents from publishing similar allegations on their computers (or through libraries or cybercafes). A defamation plaintiff may be forced to bring multiple suits against the dissidents, and again those suits may be effectively unenforceable. Moreover, even if the defamed officials could sue the dissidents collectively, there is nothing to prevent the dissidents from publishing their allegations through an 'anonymous remailer.' Ultimately, the practicalities of trans-jurisdictional litigation are likely to overwhelm potential plaintiffs.
Of course, some defamation defendants will be wealthy and it may be worthwhile to sue them. For example, it might be possible (and profitable) to sue ISPs like America Online or CompuServe. (See James B. Speta, Book Review: Cyber Rights: Defending Free Speech in the Digital Age, 2 Green Bag 227 (1999)) Although traditional defamation theory allows recovery against anyone who publishes defamatory material (See Donna M. Lampert, Fernando R. Laguarda & Amy L. Bushyeager, Overview of Internet Legal and Regulatory Issues, 544 PLI 179, 232 (1998)), the laws of some countries provide that book vendors and news sellers cannot be held liable if they do not have actual knowledge of the defamatory statements being made on their system. (See Donna M. Lampert, Fernando R. Laguarda & Amy L. Bushyeager, Overview of Internet Legal and Regulatory Issues, 544 PLI 179, 232 (1998)) Since many internet service providers (ISPs) are like book vendors and news sellers in that they exercise little content control, recovery against them may be difficult. In one case, Stratton Oakmont, Inc. v. Prodigy Servs. Co. (23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995)), an ISP who did exercise content control over a communication was held liable. However, in the US, Stratton was effectively overruled by the Communications Decency Act which exempts providers from defamation liability: '[n]o 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.'(42 U.S.C. 230(c)(1).) So, the possibility of recovery against an internet provider seems remote, at least in the US.
Of course, a given country might choose to apply different defamation rules to ISPs. Indeed, a country that wishes to repress defamatory speech may view impose liability as a means of gaining control. For example, in 1997, German prosecutors indicted Felix Somm, who at the time was in charge of CompuServe's German subsidiary, for distribution of certain materials. Undoubtedly, a country which imposes liability on ISPs, especially when the ISP exercises no content control, can gain some control over internet communications, especially e-mail communications, but the extent of control will be limited. It is difficult to stop internet users from gaining access to foreign web sites. Moreover, a company which routinely imposes liability on ISPs is likely to pay a price in terms of ISP access and ultimately in terms of economic development.
4.2 The Potential for Doctrinal Turmoil
In addition to creating massive practical problems for defamation litigation, the internet threatens to undercut many traditional assumptions that underlie defamation law, particularly US defamation law. For example, in the US, a distinction is made between defamation which affects a private individual, and defamation which affects a public official or a public figure. In Gertz v. Robert Welch, Inc. (418 US 323 (1974)), the US Supreme Court held that whereas a public official or public figure must satisfy the 'actual malice' standard in order to recover, a private plaintiff might recover on a lesser showing. (See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US 749 (1985)) The Court justified treating private individuals differently because they have less access to the means of communication, and therefore are less able to respond to defamatory falsehoods:
[W]e have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. (See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US 749 (1985))
Gertz's analysis is somewhat problematic as applied to internet communications because of the internet's decidedly democratic nature. Unlike broadcast technology, which is limited by a scarcity of bands, internet technology is relatively cheap and very accessible. Because the internet is so accessible, one who is defamed on the internet can more easily and readily respond than someone defamed through broadcast channels. The defamed individual can establish a website, or can respond via listserves or e-mails. Under such circumstances, an argument can be made that private individuals should be treated like public officials or public figures for defamation purposes. Arguably, all three groups have the ability to respond to defamatory statements.
Notwithstanding the accessibility of the internet, there may still be reasons for treating private citizens differently for defamation purposes. Unlike public officials and public figures, private individuals have not thrust themselves into the limelight, and there is less reason to force them to endure the level of criticism that public officials must endure. Therefore, some distinction between public officials and private individuals might still make sense.
In addition, the internet's power might justify retention of a lower standard when a private individual is defamed. By pushing a few buttons, a defamer can quickly send information to e-mail accounts, chat rooms, and list serves, and it may be difficult or impossible for a defamed person to know all of the places to which a defamatory message was sent. As a result, the defamed may not be able to use 'self-help' to respond to perceived defamation. Since private individuals still have less chance to respond via other means (i.e., print and broadcast technology), there may be some justification for continuing to apply a lower standard of recovery when a private individual is defamed.
The internet threatens to reshape many aspects of modern defamation law, especially in regard to trans-jurisdictional litigation. Internet communications are quick, easy and inexpensive, and virtually anyone can gain access to the 'net.' As a result, defamation litigation may not be as effective as it has been in repressing speech. In addition, because the internet is so much more accessible than print and broadcast technology, the internet may cause the courts to rethink their Free Speech doctrine as applied to defamation.
1. See Russell L. Weaver & Geoffrey J.G. Bennett, Is the New York Times 'Actual Malice' Standard Really Necessary? A Comparative Perspective, 53 La. L. Rev. 1153 (1993) [hereafter 'Weaver and Bennett']; Russell L. Weaver & Geoffrey J.G. Bennett, Defamation and Editorial Decisionmaking, 14 Media Law 2 (1993).
2. For a fuller description of the laws, see Weaver and Bennett, supra note 1: R Weaver & K Boehringer, Implied Rights and the Australian Constitution: A Modified New York Times, Inc. v Sullivan Goes Down Under, 8 Seton Hall Const. L.J 101 (1998).
3. The decision applied to discussions of government and political matters, to discussions of members of Parliament relating to the performance of their duties in Parliament or on parliamentary committees, and to the suitability of persons for office as members of the Parliament.
4.  71 A.L.J.R. 818 '§ 22 of the Defamation Act ensures that the New South Wales law of defamation does not place an undue burden on communications falling within the protection of the Constitution.'
6. Interview results are partially summarized in Weaver & Bennett, supra note 1, and are the subject of a forthcoming book by professors Russell L. Weaver, David F. Partlett & Clive Walker being published by Carolina Press.
7. See Samuel Fifer & Michael Sachs, The Price of International Free Speech: Nations Deal with Defamation on the Internet, 8 DePaul-LCA J. Art & Ent. L. 1 (1997) ('Persons who allege defamation based on online speech can potentially choose any nation in the world in which to sue, and can base their choice on the forum providing the most favorable law.').
8. See also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994) (refusing to enforce a British defamation judgment as 'antithetical' to the First Amendment).
9. See Zeran v. America Online, 958 F. Supp. 1124 (E.D. Va. 1997), aff'd, 129 F.2d 327 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998); Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991).
10. For a fuller discussion of this case, see Samuel Fifer & Michael Sachs, The Price of International Free Speech: Nations Deal with Defamation on the Internet, 8 DePaulLCA J. Art & Ent. L. 1 (1997).