Libel & Defamation in the Information Age

On the Internet, where abnormal behavior is the status quo, tempers can flare in the heat of debate and word wars can last for days or even weeks. It's not uncommon for users to ridicule, harass or insult those who disagree with them.

But if you damage someone's reputation by trying to embarrass them in a public forum, you could be sued for libel or defamation. After all, there's no reason to assume that the messages you send through cyberspace are immune from lawsuits.

"The Internet culture right now is for users to refute speech with speech," says Dave Marburger, the attorney who represented Brock Meeks in one of the first defamation lawsuits in the United States involving the Internet. "But as the Internet culture gets more diverse, users will start refuting speech with lawsuits."

There have only been a handful of libel and defamation lawsuits filed involving the Internet so far, but as the Net grows, the number of lawsuits will probably increase. If the few court battles that have been decided involving libel and defamation on the Net are any

indication of how the law will be applied to the Internet in the future, it's worth your time to learn what's libelous or defamatory on the Internet and what's not.

Other users have the right to sue you for defamation if they can prove you damaged their reputation or good name with false information. You can be sued for libel if another user can prove you have distributed defamatory statements about them in a public area -- such as a news group or mailing list.

In April of 1993 Gil Hardwick, an anthropologist in Australia, was ordered by the Australian Supreme Court to pay David Rindos $40,000 in damages because he defamed Rindos on an international mailing list.

After Rindos lost his job at the University of West Australia, Hardwick posted a message on an international disscussion group that suggested Rindos was fired because he was a bully and had sexually molested a local boy.

Rindos filed a defamation lawsuit against Hardwick because he felt the message had hurt his chances of finding a new job. In a letter to Rindos's attorney, Hardwick wrote "Let this matter be expedited and done with....I can do nothing to prevent it, lacking any resources

whatsoever to defend myself." Like most people, Hardwick didn't have the money to hire a lawyer or finance an expensive legal battle.

"He (Rindos) suffered a great deal of personal hurt because of the message," said Supreme Court Justice David Ipp in the West Australian. "The damages award must compensate him and vindicate his reputation to the public."

The Internet is an informal forum and people often write personal things about other users, but you can be held accountable in court for making libelous or defamatory remarks in public forums just like Hardwick was.

"We know that as the Internet grows, there will be more and more lawsuits involving libel and defamation," says attorney David H. Donaldson, editor of Legal Bytes, an electronic magazine that discusses legal issues involving computers and networking. "The only question is if the number of cases will grow steadily or if there will be an explosion of lawsuits all at once."

Anybody can sue you for libel or defamation if they think you damaged their reputation, but if you can prove what you say is true, chances are that you won't end up in court.

"Make it clear when you are stating your opinion," says Donaldson, "Always state the facts that your opinions are based on just to be safe. You probably won't lose a libel or defamation lawsuit if you can back up what you write with solid facts."

For example, Brock Meeks, a full-time journalist who also distributes his own electronic magazine, avoided losing a defamation lawsuit largely because he could prove an article that he sent over the Net was true.

Meeks was sued by Suarez Corporation Industries in April of 1994 for writing an investigative story about the company and its services in his electronic newsletter -- the CyberWire Dispatch. Meeks had no libel insurance, no publishing company backing him up and a lot of legal fees to cover. (His lawyer charged him $200 an hour.) The only thing Meeks had was his house -- and he didn't want to sell it to pay off a lawsuit.

Meeks defended his article in numerous posts on the Net, "All of my facts were rock solid. Although the article was delivered with a fair amount of attitude, I don't believe that I'm in dangerous waters," he wrote.

Benjamin Suarez, owner of Suarez Corp., filed the suit because he felt that Meeks had damaged his reputation and hurt his business by saying he was "infamous for his questionable direct marketing scams," and saying "he (Suarez) has a mean streak." To back up his opinion, Meeks cited accusations made by the Washington state attorney general's office concerning Suarez's direct marketing practices.

In August of 1994 Suarez Corp. made Meeks an offer he couldn't refuse. They agreed to settle the case for $64 -- to cover administrative court costs. The company refused to comment on why they agreed to settle the lawsuit.

If the case had gone to trial, Meeks's lawyer thinks Meeks would have been able to win anyway. "The defendants in libel or defamation suits involving the Internet have enhanced First Amendment rights," says Marburger. "The plaintiff has to prove actual malice. In other words, the plaintiff has to show that the defendant made false statements or was negligent." Marburger's only regret is that they didn't get to set that precedent in court.

Although the Meeks case doesn't really mean anything in the law books, it does show that if you're responsible and can prove what you write on the Net is true, people will be less likely to take you to court. If

you just make something up and your sources aren't reliable, you could lose big like Hardwick did.

"You have to follow the same rules that journalists do if your going to write and distribute controversial material about other people," says Donaldson.

The increasingly common phenomenon of online forums creates the possibility for you to reach large audiences, but it also creates the ability for you to commit defamation or libel -- something that an ordinary citizen didn't have to worry about in the past. Before the growth of online communication, people who didn't work in the media usually didn't have to worry about libel or defamation. "Libel laws apply to the Internet the same way they do to newspapers and TV stations," explains former Federal Communications Commissioner Nicholas Johnson, a professor at the Iowa University school of law. "The same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit."

Like a newspaper or TV station, you are responsible for making sure the material you distribute -- or broadcast -- over the Internet is not libelous or defamatory. Lani Teshia-Miller never meant to defame anyone, but when she took over the distribution of a tattoo FAQ she

almost ended up in court. The rec.arts.bodyart FAQ she inherited contained a lot of generalizations based on contributions from unattributed sources. Although she listed her name on the FAQ, she didn't edit out several defamatory statements. One review of a San Francisco tattoo artist in the FAQ said, "He's getting old and having problems with his eyesight. His quality is really bad and he hurts people."

After the artist hired a lawyer and threatened to sue, Teshia- Miller changed the FAQ's wording to reflect a more factually-based and less-hysterical view. The review now says, "His eyesight is not what it used to be."

After the FAQ was changed and Teshia-Miller apologized, the artist dropped the lawsuit. "It turned out to be a good experience for me," said Teshia- Miller. "I'm a lot more careful about what I allow on the artist list, and I now have a very long disclaimer at the beginning of the FAQ."

Every person you write something negative about won't sue you for defamation or libel, they might flame you or just try to set the record straight by replying to the message. But if you post false information about another user and disgrace them in public, they have the right to

take you to court -- and they could win a big settlement if they can prove you were negligent.

Medphone, a Fortune 500 company that manufactures medical instruments, has filed a $200 million lawsuit against Prodigy user Peter DeNigis. Medphone filed a "systematic program for defamation and trade disparagement" lawsuit against DeNigis after a stockholder reported that he was making several negative posts about Medphone a day on Prodigy's Money Talk Forum. DeNigis, a former Medphone stockholder, lost more than $9,000 last year by selling off his investment in the company. In one post DeNigis wrote, "My research indicated the company is really having a difficult time. No case, no sales, no profits and terrible management. This company appears to be a fraud. Probably will cease operations soon."

Although the accusation that Medphone is a "fraud" is very serious -and potentially defamatory -- DeNigis might be able to win the lawsuit if he can prove what he wrote is true in court.

"The Medphone case is a clear indication that libel and defamation is something for Internet users to think about," says Johnson.

There are court cases in progress right now that will decide if access providers such as Prodigy, America Online and Compuserve are responsible for defamatory remarks broadcast over their services, but there is no legal ambiguity about whether individual users can be sued for making defamatory or libelous statements. Individual users are responsible for making sure the information they distribute is not libelous or defamatory.

The Internet has made world wide, instantaneous communication easy. The average user now has the power to be heard by hundreds or even thousands of other users, but in terms of libel and defamation, the Net is not a new world of freedom. The reality is that libel and defamation laws are enforceable in the virtual world just like they are in the real world.