Many Internet users believe the system has an "ethic" of its own. Understandably so. These users regard cyberspace as a distinct metaphysical reality, separate from the real world, with its own rules, language and behavior. Indeed a distinct culture, language, and protocol have evolved on Internet--especially among bulletin board groups. These groups often develop a distinctive group folklore and culture.
A number of factors have contributed to that view. First, the system has no single owner. Next, the network has evolved spontaneously. Third, systems within Internet have informal, voluntary, and reciprocal relationships. Finally, democratic and egalitarian features of Internet have contributed to the perception that Internet users have no legal accountability for what they say on the system.
Some "denizens" of cyberspace carry this separatist notion beyond "cyberethics." They consider cyberspace entirely outside the legal system that governs "non-virtual reality."
Reality Check: Laws Govern the Internet
Especially when it comes to free speech, many Internet users consider themselves immune from the laws of libel and slander. One Internet user got a rude awakening that defamation laws do apply when he got sued for libel.
In one of the first libel suits arising from a communication over Internet, an individual and his company sued Brock Meeks, a prodigious Internet user. Meeks, a well known investigative journalist, circulated news and commentary under the name "Cyberwire Dispatch."
This suit had its genesis when Meeks received unsolicited promotional material over Internet captioned "Electronic Postal Service (EPS) Registration Information." This promotional piece promised recipients that they could "reduce commercial e-mail and make money for yourself at the same time." Defendant Meeks unsuccessfully sought more information from the company. Meanwhile, about two weeks later, Meeks got a letter from Benjamin Suarez, written on Suarez Corporation letterhead. Suarez wrote that he had a way that Meeks could "[m]ake just about as much money as you wish." Meeks learned that Suarez also owned EPS, the company that had earlier sent Meeks promotional material. He also received information about suits brought against Suarez for violation of consumer laws. Based on this information and further research, Meeks issued a "Cyberwire Dispatch."
Although Meeks lived in Virginia, plaintiffs, Suarez and Suarez Corp. Industries, sued him in Ohio, alleging that he defamed them and tortiously interfered with Plaintiff's business relations.
Defamation On-line
Returning to the Meeks case, plaintiffs cited two of Meek's statements as defamatory: (1) "let's flip this latest Internet scam on its back and gut that soft white underbelly," and (2) "he's [Suarez] infamous for his questionable direct marketing scams. And he has a mean streak. His record speaks for itself."
Meeks asked the Ohio court to rule that common law defamation does not apply to Internet. Meeks told the court that: "By providing users with equal access to communicate their thoughts to mass audiences, the Internet performs a function that is radically different from that of any other medium of mass communication." His argument continues: "In other mass communications, media, publishers, editors, and news directors act as gatekeepers. They decide who will have access to the media to communicate messages and what those messages will say." "By contrast," Meeks contended, "the mass medium of the Internet has no gatekeepers. There is no Internet editor or news director, who controls the content of Internet messages, or who selects the persons who will communicate to Internet audiences. Every Internet user has full, unfettered access to that mass medium to rebut anything said by another user."
Developing the Internet defense still further, Meeks maintained that when Plaintiffs decided to use Internet as their means of communication, "they assumed an enhanced risk of criticism," since "as any Internet user knows, the Internet is a free-for-all, no holds-barred communications medium." Moreover, Internet users "expect responses to their messages, and know that some of those responses may be vitriolic condemnations," Meeks stated.
One of the nation's leading First Amendment counsel, Bruce Sanford, represented Meeks. Although the Meeks case settled, before it did, his counsel raised epochal issues. Do Internet users have immunity from libel and slander? What aspects of Internet justify that courts take a distinctive approach to libel and slander?
Virtually all the courts and commentators that have considered this question agree that defamation law applies to defamatory statements made online. Any other result would dramatically alter fundamental precepts of American jurisprudence. The communal nature of humanity has made the preservation of a person's good name a paramount concern of the Judeo-Christian tradition. The Ten Commandments makes it a sin to bear false witness against thy neighbor. Leviticus 19:16 says, "Thou shall not go up and down as talebearer against thy people." The Talmud teaches: "There are three crowns: the crown of Torah, the crown of priesthood, and the crown of royalty; but the crown of a good name excels them all." (Aboth iv.17) Combine this transcendent communal value with the emergence of Internet as civilization's primary means of communication, and elimination of defamation protection would leave Internet user's reputational interest at the mercy of anyone. What's more, rightly or wrongly, courts will generally follow existing precedents in resolving legal issues that arise with Internet. Only in compelling circumstances, will existing law change dramatically in the Internet setting. Instead it will gradually evolve.
Other defamation cases demonstrate that Internet users need to watch their "P's" and "Q's" when they speak negatively about another person. In the case of Cubby v. CompuServe, Incorporated plaintiff sued defendant in the Southern District of New York. Plaintiff alleged that an electronic newsletter contained defamatory statements.
CompuServe made the newsletter available over its Journalism Bulletin Board. The newsletter had no relationship to CompuServe. An independent contractor moderated the forum and had responsibility for what went on it. Neither the moderator nor CompuServe had a chance to review the substantive of the newsletter. The court ruled for CompuServe. It characterized CompuServe as "electronic library." Where the information provider or the owner of the bulletin board merely serves as a conduit for information, the originator of the defamatory statement will ordinarily have liability.
In Medphone Corp. v. Denigris, also reported by Stuckey, a medical equipment company sued an investor who had posted statement on Pordigy's Money Talk Bulletin Board Service. Unlike the plaintiff in the Cubbey case, plaintiff did not sue the information provider. Rather the Company sued the person who posted the message on the bulletin board. Plaintiff said that defendant's statements caused the value of the company's stock to drop. Note that defamatory statements on a bulletin board can subject a user to devastating damage claims. The case settled. Suppose the case had not settled. Assume the plaintiff could have proven the falsity of defendant's statements, and that such false utterances had caused a decline in the price of plaintiff's stock. The plaintiff would have recovered compensatory damages against the user if the company could prove all the other elements necessary for a plaintiff to prevail in a defamation action.
What this Means for the User
This review of some reported cases should give Internet Users and Systems Operators pause. While little definitive authority yet exists, you certainly do not want to become one of the first to find out how these legal questions will resolve themselves.