One of, if not the most, important products of the media industry is the dissemination of content. However, every time a piece of content is disseminated or published, the author of that content is subject to potential liabilities. One of the most common liabilities is defamation.
Defamation, is largely defined by state law. However, most definitions of defamation are generally the same. Accordingly, defamation, in essence, refers to the dissemination or publication of false information to another that injures or harms the reputation of a person, groups or organization (Solove, et al., 159). More specifically, defamation requires the occurrence of the following four elements: (1) a false and defamatory (harmful to one’s reputation) statement concerning another person, (2) the publication or dissemination of a statement to a third party, (3) the statement was published with some level of fault on the part of the author or publisher, (4) the statement resulted in a harm to the victim’s reputation, and (5) the author or victim is not subject to a privilege or defense (Solove et al., 160). In addition, there are two types of defamation. When it is produced in written format it is known as libel, when it is disseminated in an oral manner, it is known as slander.
For hundreds of years, the law of defamation has provided restrictions on what the media industry is entitled to publish, as well as, a cause of action for people to control the spread of false information about them. In the landmark 1964 case New York Times Co. v. Sullivan, however, the United States Supreme Court significantly altered the traditional protections defamation law had provided to individuals by distinguishing what the media could publish about a “public” figure as opposed to a private figure. In the case, the plaintiff, L.B. Sullivan, was an Alabama government official. He sued the New York Times claiming defamation (libel) for a story the paper published that allegedly contained inaccuracies about him but did not actually print his name or directly connect him to the inaccuracies (Sullivan). Ultimately, the Supreme Court denied Sullivan’s complaint arguing that according to the First Amendment, in order for public official such as Sullivan to succeed in a defamation claim about the official duties, they would need to prove the extra requirement that the author of the statement acted with “actual malice” or the with knowledge that the statement was false or with a “reckless disregard of the truth” (Sullivan). Consequently, since Sullivan, an author of content concerning a public official was insulated from liability as long as their content was not published with actual malice. It is important to note, however, that the Sullivan standard does not apply to a private individuals or public figures in their private capacities.
Currently one of the more pressing areas of defamation law and the media industry is defamation and the internet. To be sure, in the modern global information society, the increased ability of the public to access content at any time and any place, from multiple platforms ranging from newspapers to television to websites; has made the demand for the instant and continuous dissemination of information and news almost insatiable (Solove et al., 75). Advances in technology, fortunately, have lowered the barriers to entry into the media industry to allow for the supply of information to generally satisfy the demand. Indeed, what was once an industry that was dominated by enormous companies that controlled the flow of information, is now increasingly dominated by small groups and individuals with nothing more than a computer and access to the Internet. The fundamental issues of defamation, namely that the publishing of content brings liability, is also applicable to publishing on the internet. The internet, however, exposes a number of new elements that have and continued to affect defamation law. First, there is the fact that publishing on the internet allows an author to immediately disseminate information to millions of people across the world. If that information is defamatory, then the harm to a victim is substantially increased as well as the ability of a victim to control it (Stiles, 5). Second, publishing on the internet can be done anonymously, which increases the difficultly of a victim to bring a cause of action against a perpetrator (Stiles, 3). Third, much of the information that is available on the internet can be an is republished by individuals and organization other than the original author. Accordingly, when deciding to bring a defamation case, the victim is faced with the question of whether they can succeed in a case against a secondary or tertiary publisher of the original defamatory content. Moreover, if a victim can find the original author, if they are an individual that is simply posting on their own personal blog, the victim is confronted by the question of whether it is worth it to bring a lawsuit.
One of the first cases to confront the complexities of defamation law and the internet was the 1991 case Cubby, Inc. v. CompuServe Inc. In the case, Cubby brought a defamation (libel) against CompuServe based on the fact that someone had printed defamatory statements against the company in a chatroom that CompuServe hosted (Cubby). As a result of not knowing who the actual author of the content was, Cubby argued that CompuServe, as the host, was like a newspaper publisher and therefore was liable. CompuServe on the other hand argued that it did not examine the content of what was posted in its chatrooms and so had no idea or understanding of what was being said in them. The trial court sided with CompuServe. According to the court, CompuServe was more like a distributor such as a library or bookstore and therefore did not have “reason to know of the statements” being made in its chat rooms and therefore could not be held liable (Cubby).
Works Cited
Cubby, Inc. v. CompuServe, Inc. 776 F.Supp. 135. The District Court for the Southern District of New York. 1991. Web. http://www.internetlibrary.com/pdf/Cubby-Compuserve-SDNY.pdf
New York Times Co. v. Sullivan. 376 U.S. 254. The Supreme Court of the United States. 1964. Web. http://www.law.cornell.edu/supremecourt/text/376/254
Solove, Daniel J., Marc Rotenberg, and Paul M. Schwartz. Information Privacy Law. 2nd ed. New York: Aspen Publishers, 2006. Print.
Stiles, Allison. “Everyone’s a Critic: Defamation and anonymity on the Internet.” Duke Law and Technology Review, 1.1. (2002). Web. http://scholarship.law.duke.edu/dltr/vol1/issue1/46
