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US cases on cyber libel in message boards and forums
Don Burleson
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Burleson is co-author of
Web
Stalkers: Protect yourself from Internet Criminals & Psychopaths,
$19.95 by Rampant TechPress.
These are just a sample of selected
cyberlibel cases, but many may be been superseded by later case law.
Note: This is a
literature review prepared by a non-lawyer and this research may not
be construed as legal advice. If you are seeking legal advice
of qualified attorneys, consult your local Bar Association, not my
web pages.
Also see
the book on protection from Cyberstalkers
Sabbato v.
Hardy, Case No.
2000CA00136 (Ohio Ct. App., Dec. 18, 2000). An Ohio appellate court
reversed a lower court's decision concerning immunity under Section
230 of the Communications Decency Act (CDA). Hardy operated a
website that allowed users to post and read opinions on the website.
Sabbato sued Hardy for defamatory comments that were posted on his
website. The appellate court found that the lower court had erred in
granting Hardy immunity under the CDA.
The court determined that Hardy was
not automatically entitled to immunity under Section 230 of the CDA
because the complaint alleged that Hardy had personally participated
in creating the defamatory comments.
Opinion at
http://legal.web.aol.com/decisions/dldefam/sabbatodec.pdf
Varian v.
Delfino and Day, (Santa
Clara Cty, 2001). In one of the first Silicon Valley Internet libel
cases to reach trial, a jury awarded $425,000 to Varian, the former
employer of two disgruntled workers. The two former employees had
libeled Varian executives by posting more than 14,000 defamatory
messages on over 100 different websites.
The jury found the defendants
liable for defamation as well as misappropriation of the executives
names.
Curzon-Brown
v. Lathouwers, N.D. Cal.,
settled Oct. 4, 2000. Two San Francisco City College professors
brought a defamation suit against the webmaster of Teacher Review, a
website offering anonymous reviews of teachers.
Several profane and homophobic
reviews of the plaintiffs were posted on the site. The plaintiffs
settled the case and agreed to pay $10,000 in legal fees to the
defendant amidst concerns that the court would award a higher amount
to the defendant. Plaintiffs also agreed to stop posting
reviews of themselves in their efforts to balance the commentary.
Griffis v.
Luban, 633 N.W. 2d 548 (Minn
Ct. App. 2001). A Minnesota court ruled that Alabama had
jurisdiction over a Minnesota defendant who posted defamatory
messages on the Internet. Luban, a resident of Minnesota, repeatedly
posted messages on an Internet newsgroup attacking Griffis's
professional credentials. Plaintiff Griffis obtained a default
judgment in Alabama, which she sought to enforce in Minnesota.
The Minnesota court held that the
Alabama court had properly exercised jurisdiction because the
effects of the messages were felt in Alabama, and Luban
should have forseen that she would be sued in Alabama as she had
actual knowledge of their effect on Griffis. Accordingly, the
Minnesota court enforced the default judgment. Update December
12, 2001: Review granted by the Minnesota Supreme Court.
Stratton
Oakmont, Inc. et al. v. Prodigy Services Company, et al.,
1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995). motion
for renewal denied 1995 WL 805178 (Dec. 11, 1995). The plaintiffs
alleged that defamatory statements had been posted by a third party
on a bulletin board maintained on Prodigy. The plaintiffs sought to
have Prodigy's liability tested by the standards applicable to
publishers of information, as opposed to distributors. The
significance of this differential was explained by the court: "one
who repeats or otherwise republishes a libel is subject to liability
as if he had originally published it. In contrast,
distributors such as book stores and libraries may be liable for
defamatory statements of others only if they knew or had reason to
know of the defamatory statement at issue. A distributor, or
deliverer of defamatory material is considered a passive conduit and
will not be found liable in the absence of fault." The court
concluded that Prodigy, based on the manner in which it had in the
past conducted its business operations, was a publisher and not a
distributor for defamation purposes.
The court, in
reaching this conclusion, relied on a number of factors, including:
1) Public pronouncements by Prodigy that it was different from other
services because it exercised efforts to control the content of what
was published on its bulletin boards; 2) Prodigy's promulgation of
content guidelines; 3) Prodigy's use of software screening programs
to automatically prescreen bulletin boards for certain offensive
language; and 4) Retention of Board Leaders to enforce the content
guidelines with respect to particular bulletin boards.
By attempting to exercise such
editorial control over the content of its bulletin boards, (even
though such attempts were by no means comprehensive or covering all
messages posted to bulletin boards), the court held that Prodigy was
subject to liability as a publisher, rather than a distributor.
The decision recites that Prodigy contends that it changed its
method of operation sometime after 1993.
North Carolina cyber libel cases
561 S.E.2d 276
"Libel is defined as written defamation." Market America, Inc. v.
Christman-Orth, 135 N.C. App. 143, 149, 520 S.E.2d 570, 576 (1999).
The three classes of libel
long recognized under North Carolina law are:
(1) publications obviously defamatory which are called libel per
se;
(2) publications susceptible of two interpretations one of which
is defamatory and the other not; and
(3) publications not obviously defamatory but when considered
with innuendo, colloquium, and explanatory circumstances become
libelous, which are termed libels per quod.
North Carolina Libel cases citing other
cases
520 S.E.2d 603
Individuals found to be limited-purpose public figures bear the
burden of proving that alleged defamatory statements against them
were published with actual malice in order to recover damages. New
York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S.
Ct. 710 (1964); see also Gertz v. Welch, 418 U.S. 323, 41 L. Ed. 2d
789, 94 S. Ct. 2997 (1974), cert. denied, 459 U.S. 1226, 75 L. Ed.
2d 467, 103 S. Ct. 1233 (1983). The
United States Supreme Court has defined "actual malice" as
publication of a statement with knowledge that it was false or with
reckless disregard as to whether it was false. New York Times Co. at
279-80, 11 L. Ed. 2d at 706.
Proving reckless disregard requires the plaintiff to offer
"sufficient evidence to permit the conclusion that the defendant in
fact entertained serious doubts as to the truth of [the]
publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d
262, 267, 88 S. Ct. 1323 (1968).
Because plaintiffs are limited-purpose public figures, they bear the
burden of not only showing that defendants knew of the falsity of
their statements, [*14] but also of proving that defendants acted
with actual malice. Whether a plaintiff has proven actual malice on
the part of a defendant is a matter that is properly determined by
the trial court. See Proffitt v. Greensboro News & Record, 91 N.C.
App. 218, 371 S.E.2d 292 (1988).
When a public figure's libel action is considered at the summary
judgment stage, "the appropriate question for the trial judge is
whether the evidence in the record would allow a reasonable finder
of fact to find either that the plaintiff has shown actual malice by
clear and convincing evidence or that the plaintiff has not." Id. at
221, 371 S.E.2d at 293-94 (citation omitted).
573 S.E.2d 376
We conclude that Cannon is a limited-purpose public figure, within
the context of the public controversy surrounding the Crisp County
facility, and his failure to seek a retraction before filing his
complaint precludes him from recovering punitive damages.
568 S.E.2d 893
"Under North Carolina law, an individual may become a limited
purpose public figure 'by his purposeful activity amounting to a
thrusting of his personality into the "vortex" of an important
public controversy.'" Gaunt, 139 N.C. App. at 786, 534 S.E.2d at 665
[*18] (quoting Taylor v. Greensboro News Co., 57 N.C. App. 426, 435,
291 S.E.2d 852, 857 (1982), disc. review denied, 307 N.C. 459, 298
S.E.2d 385 (1983)). Defendants offer no conclusive evidence,
however, that all of the present plaintiffs are public figures,
limited purpose or otherwise.
"the actual-malice standard is not an impenetrable shield for the
benefit of those who engage in false speech about public figures."
McKimm, 89 Ohio St. 3d at 147, 729 N.E.2d at 373 (holding that there
was sufficient evidence of record at trial to support a decision by
the Ohio Elections Commission reprimanding a successful candidate
for political office for his false and misleading political cartoon
depicting [*19] the opposing candidate engaging in unethical
behavior). The context of a political campaign does not alter the
fact that
"false speech, even political speech, does not merit constitutional
protection if the speaker knows of the falsehood or recklessly
disregards the truth." "The use of a known lie as a tool is at once
at odds with the premises of democratic government and with the
orderly manner in which economic, social, or political change is to
be effected. Hence the knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy
constitutional protection."
Georgia cyber libel citation
276 Ga. 16
"public figures," defined as individuals who are "intimately
involved in the resolution of important public questions or, by
reason of their fame, shape events in areas of concern to society at
large."
"Even if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect or incomplete, or if
his assessment of them is erroneous, the statement may still imply a
false assertion of fact." (Milkovich v. Lorain Journal Co. (1990)
497 U.S. 1, 18-19 [111 L. Ed. 2d 1, 110 S. Ct. 2695].)
North Carolina Libel Per Se
516 S.E.2d 907
This Court has defined libel per se as a publication which, when
considered alone without explanatory circumstances: (1) charges that
a person has committed an infamous crime; (2) charges a person with
having an infectious disease; (3) tends to impeach a person in that
person's trade or profession; or (4) otherwise tends to subject one
to ridicule, contempt or disgrace.
568 S.E.2d 893
In an action for libel or slander per se, malice and damages are
deemed presumed by proof of publication, [*9] with no further
evidence required as to any resulting injury. See Andrews v. Elliot,
109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993).
561 S.E.2d 276
Under the law of North Carolina, a libel per se is a publication
which, when considered alone without innuendo or explanation: "(1)
charges that a person has committed an infamous crime; (2) charges a
person with having an infectious disease; (3) tends to impeach a
person in that person's trade or profession; or (4) otherwise tends
to subject one to ridicule, contempt or disgrace." Renwick, 310 N.C.
at 317, 312 S.E.2d at 409.
Privileged communications and Libel Per Se
561 S.E.2d 276
"However, even where a statement is found to be actionable per se,
the law regards certain communications as privileged." Market
America, 135 N.C. App. at 150, 520 S.E.2d at 576. A qualified
privilege exists when a communication is made:
"(1) on subject matter (a) in which the declarant has an interest,
or (b) in reference to which the declarant has a right or duty, (2)
to a person having a corresponding interest, right, or duty, (3) on
a privileged occasion, and (4) in a manner and under circumstances
fairly warranted by the occasion and duty, right, or interest."
Phillips v. Winston-Salem/Forsyth County Bd. Of Educ., 117 N.C. App.
274, 278, 450 S.E.2d 753, 756 (1994) [*23] (quoting Clark v. Brown,
99 N.C. App. 255, 262, 393 S.E.2d 134, 138 (1990)). "The essential
elements for the qualified privilege to exist are good faith, an
interest to be upheld, a statement limited in its scope to this
purpose, a proper occasion and publication in a manner and [to] the
proper parties only." Long v. Vertical Technologies, Inc., 113 N.C.
App. 598, 602, 439 S.E.2d 797, 800 (1994). "Whether a communication
is privileged is a question of law for the court to resolve, unless
a dispute concerning the circumstances of the communication exists,
in which case it is a mixed question of law and fact." Market
America, 135 N.C. App. at 150, 520 S.E.2d at 576. Where the
privilege exists, a presumption arises "that the communication was
made in good faith and without malice." Phillips, 117 N.C. App. at
278, 450 S.E.2d at 756. To rebut this presumption, the plaintiff
must show actual malice or excessive publication. Harris v. Procter
& Gamble, 102 N.C. App. 329, 401 S.E.2d 849 (1991).
North Carolina Libel Per Quod
516 S.E.2d 907
Defendant's third claim for relief is the alternative argument that
"the publications were not obviously defamatory but when considered
with innuendo, colloquium, and explanatory circumstances became
libelous, [causing] plaintiff general and special damages." This is,
in essence, an argument that the comments were actionable per quod.
See, e.g., U v. Duke University, 91 N.C. App. 171, 181, 371 S.E.2d
701, 708, disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988).
The damage plaintiff claims to have suffered, as required to recover
for libel per quod, is the loss of a seat on the Board which in turn
damaged "his opportunity for employment" and resulted in a "loss of
income and benefits [*8] derived therefrom."
Note: This is a
literature review prepared by a non-lawyer and this research may not
be construed as legal advice. If you are seeking legal advice
of qualified attorneys, consult your local Bar Association, not my
web pages.
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