Michael Holland
Computers and the Law
Professor Meyer
5/10/96

LIBEL ON THE INTERNET: AN INTERNATIONAL PROBLEM

*The Forward Press, and Ian Walton who owns it,
Have sent the Poetry Society a writ
Saying *See you in court. We've been denigrated
By libel.* The society Q thus was stat-ed Q
Said we'll print your ballad, canto or roundelay,
Stanza, verse, georgic, rhyme or jingle, if you pay.
It called us *vanity press.* Are we one of those
Imprints that charge to publish epic verse and prose,
And bind them in a pricey, bad anthology
Of limp meter, dodderel and poetastry
Like this? To make it worse, the treacherous slander
Was on the Internet, for the world to ponder.
The Society said the *Poetry Police*
Should ban dodgy poets' contests designed to fleece
Authors, to whom a rosy future is hinted
If they buy the book in which their verse is printed.
That's not true of me, Walton cried. I'm a poet, too,
And have been judge for the Literary Review.
My firm gives work to fifty. Should I be besmirched
By a pasquinade so false and badly researched?
I seek damages for libel, aggravated,
And injunction for this smear to be abated.
The poetry group replied, *ought we to amend
Our views? the answer's no. Our lawyers will defend.*

(*A New Legal Chapter, in verse*, International Herald Tribune, January 31, 1996)
The Internet has brought about exciting opportunities for the exchange of information around the world. However, abuse of the Internet has forced lawmakers around the world to struggle to maintain some degree of control over what is placed upon the Internet. Individuals injured by defamatory statements have frequently looked toward libel law for remedies. However, since communicating via the Internet occurs in a unique manner, there is great uncertainty as to how traditional libel laws should be applied.

I. AN OVERVIEW OF THE PROBLEM
Internet surfers and researchers often hook into message boards, known as electronic bulletin boards, to read for fun or to gather information. However, the messages placed on the electronic bulletin boards are not always simply for informational purposes. Sometimes the messages are meant to besmirch another party. The reputation of a corporation or an individual can be ruined by a few pushes of the computer keys. The potential damage is almost immeasurable given the size of the worldwide audience that regularly views the Internet. Furthermore, the problem of libel placed on the Internet is often exasperated by individuals posting messages on the Internet unanimously, making the prosecution of the authors difficult.


A. WHAT IS LIBEL? (The American definition)

When an injurious false statement is made about an individual, the individual is *defamed*. Defamation can occur in two forms: libel or slander. Libel occurs when there is a written statement injuring an individual, and slander occurs when there is an oral statement that injures an individual. Since on-line is considered to be written material, on-line defamation is considered to be libel.

Libel occurs when a false statement is written which injures an individual by disgracing him. The statement must be about an individual and the readers must be aware that the individual is the subject of the false statement. Furthermore, the defamatory statement must not be an opinion, but rather one of fact. *This is true because . . . only false statements are actionable, and the Supreme Court has held, under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.* (Internet and the Law, p. 162-163.)

An individual considered to be a public figure must prove that the libeler knew the statement was false, or had serious questions regarding the truth of the statement. When the individual that was libeled is not a public figure, the threshold to recover damages is lower and requires proving negligence on the part of the libeler. (Internet and the Law, p. 163). There have been some proposals during recent case litigation that individuals libeled on the Internet should be regarded as a public figure, thus requiring the higher threshold level to recover for damages. (See libel treatment in the United States, infra.)


B. HOW INFORMATION IS PLACED ONTO THE INTERNET
The problem of libel on the Internet may arise when a libelous message is placed onto an electronic bulletin board. Electronic bulletin boards are systems where users can dial in and use software running on the host electronic bulletin board system to read and exchange files. Access to electronic bulletin boards can be achieved through commercial on-line services that serve as *gateways*, or through the Internet equivalent to electronic bulletin boards known as *newsgroups*.

Newsgroups allow users the ability to read and post questions or messages on specific subjects that can then be accessed potentially worldwide. The number of newsgroups available to users depends on the *newsreader*, which accesses information from a *news server*. The news server collects information from several sources, but primarily from Usenet. Usenet is an Internet service that acts as a worldwide electronic board. There are more than 15,000 newsgroups on the Usenet. Users can post questions and or make comments on the newsgroups by sending e-mail to a computer called a list server or by logging in to a newsgroup and typing a message there.

A news item placed on a bulletin board consists of a header and a body. The body is the text of the message. *The header tells the news software how to distribute the item throughout the Internet and also tells you something about the item's contents . . . Each news item is considered part of a discussion thread. The act of creating (posting) a new article on a completely new topic creates a new thread. News readers who want to add their *two cents* to the discussion then make *follow-on* postings. A follow-on posting creates another article, but tells the news software that it is part of the thread created by the original posting.* (*The Whole Internet: User's Guide and Catalogue*, Ed Krol, p.160.)

Hackers wishing to remain anonymous can either use a false address, or *hook* into another computer system and then come from the new site with a libelous message. ("Renegade leaves few clues when he strikes", Boston Herald, March 6, 1996, p. 18) Since messages can be posted unanimously, lawmakers around the world have searched for a remedy. Some countries, including the United States have looked to the owners and operators of the electronic bulletin boards as being possibly liable for the defamatory messages. Other countries have sought to solve the problem by monitoring Internet transmissions more closely, or by educating people on proper *netiquette*.

To access the Internet, many users pay a monthly fee to a commercial on-line service. Included in the membership is * . . . a membership kit including a local access telephone number, a password necessary for logging in, and the appropriate software.* (*Defining Cyberlibel*, Jeremy Stone Weber, 46 Case W. Res. 235, 1995, p. 245.) Much of the current litigation involving Internet libel has focused on commercial on-line services (Id. at 245).


II. LEGAL REMEDIES FOR INTERNET LIBEL AROUND THE WORLD
A. THE UNITED STATES

Libelous messages placed on the Internet in the United States is upheld to the same level of scrutiny as other forms of communication. However, the ease in which a person can keep their identity secret frequently poses a problem for finding a responsible party. Recent trends indicate that the owners and operators of on-line services will sometimes be held liable for what is placed on their services. Recent case law in the United States considering the liability of owners and operators of on-line services for items posted upon bulletin boards exemplify the evolving area of computer law. The courts have looked upon on-line libel with an eye upon traditional libel law and also recognizing the uniqueness of on-line circumstances.

The liability of the owners and operators of on-line systems for the posting of defamatory statements depends on whether they are considered by the courts as a distributor of information or a publisher of information. These two categories, publisher and distributor are treated differently in traditional libel law. The distributor of information, such as libraries, newsstands, bookstores, telephone and telegraph operators are not normally held liable. Publishers, such as newspapers and publishing houses are held responsible for the materials that they print. (Internet and the Law, p. 164). Thus, in the Internet world, if the accused is considered to be a distributor, then no liability will be found unless the individual had personal knowledge of the contents of the material. However, if the operator or owner is considered to be a publisher, then liability will be found.

Holding on-line operators liable for material placed on the Internet is complicated by the uniqueness of the Internet. *The Internet consists of approximately 7 million computers seamlessly integrated using a common technology via 60,000 largely private networks . . . It operates over virtually every kind of underlying means, including: local networks (LANS), telephone lines, ISDN, CATV, wireless, cellular, private and common carrier fiber, satellite and submarine cable circuits. A common joke is that the Internet runs over everything except wet string. The Internet operates as a highly distributed intelligent network that can automatically learn and adapt to dynamically route traffic over myriad alternative routes. A message or even pieces of a message may go different paths to an end destination at any time.* (*Prepared Testimony of Anthony M. Rutkowski Executive Director, The Internet Society Before the House Committee on Science Technology Subcommittee Regarding the Internet and the Management of Objectionable Materials*, Federal News Service, July 27, 1995.)

Two recent cases reveal the importance of the distinction between distributor and publisher in the United States. In one case, CUBBY, INC. V. COMPUSERVE, INC., the court granted CompuServe Inc. summary judgment based upon the court's finding that CompuServe served the same purpose as a library. The court stated that CompuServe would have been held liable only if the company knew or had reason to know of the defamatory statement. (Internet and the Law, p. 166). The court found that an agency relationship had not been established since CompuServe did not directly regulate the materials placed upon the electronic bulletin boards. (Internet and the Law, p. 168).

In another case, STRATTON OAKMONT, INC. V. PRODIGY SERVICES CO., the court found that unlike CompuServe, Inc., Prodigy Services Co. did hold itself out to the general public as a publisher because it used software to prescreen messages that were offensive, and therefore was liable for materials that appeared on the Prodigy computer bulletin board. (Internet and the Law, p. 168). Thus, in the United States, the definition of the owner/operator as either a publisher or common carrier will be definitive as to the liability of the owner/operator. (*Internet Publishing Raises Legal Questions; Copyright violations are possible*, Business Insurance, February 26, 1996, p. 21).

Libel lawsuits arising within the United States have also targeted the individual user. A journalist, Brock Meeks, operated a bulletin board in which he questioned the integrity of Suarez Corporation's marketing practices. Meeks posted two messages on his bulletin board concerning Suarez Corporation, in which he referred to the electronic advertisements used by Suarez as *questionable marketing scams*. (*Defining Cyberlibel*, Jeremy Stone Weber, 46 Case W. Res. 235, 1995, p. 255.) In response, Suarez Corporation sued Meeks for libel. In his defense, Meeks argued that Suarez should be considered to be a "public figure" because the alleged libel was made on a computer bulletin board and Suarez could respond by placing a reply on the bulletin board. If Suarez was found to be a public figure, his burden of proof to recover damages would be higher. However, the parties settled out of court before the issue was decided of whether a person, or corporation slandered on the Internet should be treated as a public figure. (Id. at 255.) Advocates for viewing persons libeled on the Internet as public figures point out that rebuttals can be made swiftly. However, critics point out that not all persons have access to the same bulletin boards, and furthermore, not all persons use the Internet. (*A Lawyer's Ramble Down the Information Superhighway: Defamation*, Jessica R. Friedman, 64 Fordham L. Rev. 794, p.800.)

The treatment of Internet libel remains unresolved. A proposed Uniform Defamation Act would not hold computer bulletin board operators liable if it *(1) is not reasonably understood to assert in the normal course of business the truthfulness of the information maintained or transmitted; or (2) takes reasonable steps to inform users that it does not assert the truthfulness of the information maintained or transmitted*. (Id. at 260.). However, at this time the Uniform Defamation Act has not been passed by lawmakers.

Recently, the state of Wisconsin took the initiative to combat libel on the Internet. On March 26, 1996, the Wisconsin Assembly approved a bill, AB 852, that holds material published on the Internet to the same standards that currently apply to other mass media. Thus, under Wisconsin law, an individual libeled on the Internet can not sue until they notify the alleged libeler that they have taken offense. The alleged libeler then has the opportunity to make a correction or retraction. If the correction is made, only actual damages may be recovered. (*Libel Law Expansion*, Madison Newspapers, Inc., March 26, 1996, p. 4A). Furthermore the new Wisconsin Bill, AB 852, holds system operators liable only if they knew that the information was false, and still published it, or did not remove the material upon being told that it was defamatory. (Id. at 4A.)


B. GREAT BRITAIN
The problem of libel on the Internet is not solely an American problem. Recent events in England indicate that libel lawsuits for materials placed upon the Internet are becoming more common. For example, a libelous article about the Prime Minister and a fashionable London caterer placed on the Internet, resulted in a lawsuit against the "Scallywag". The case was settled when Scallywag promised to never repeat the libel again and with the understanding that republishing the material would be considered contempt of court, and punishable by imprisonment. (*Caught in a web of curiosity*, David Rennie, The Daily Telegraph, p. 29.)

The British legal approach to libel differs from the American approach. English libel law is considered to be pro-plaintiff in comparison to American libel law. The major difference between the two systems is that in America the plaintiff must prove malice, whereas the British system places the burden on the defense to show that the statement was not libelous. (*Press need to have the right to be wrong, says MP*, The Glasgow Herald, February 23, 1996, p. 6.)

Recently a bill, the Defamation Bill, was introduced to the House of Lords in England in an attempt to try to resolve the problem of libel placed on the Internet. The Defamation Bill would hold Internet providers responsible for what they print under United Kingdom libel laws in a very limited scope. The Defamation Act would not hold Internet service providers liable if they are not primarily responsible, and have given no reason to suspect that their actions have contributed to the publication of the libel.

The Defamatory Act was brought before the British Government by a lobbyist group consisting of CoumpuServe, Europe Online, and Microsoft Network. The lobbyists' argument is that the Internet should be considered equivalent to a telephone line as opposed to a publishing medium. While the American courts have recognized that in certain situations a provider would be considered a publisher, British lawmakers are reluctant to do so because they want to encourage the growth of the Internet, and secondly, because libel lawsuits are currently a problem in England.

Recognizing the potential for huge numbers of libel lawsuits growing out of the Internet, British lawmakers are eagerly looking upon the Defamation Act as a means to limit potential libel lawsuits. The Defamation Act would make libel cases cheaper and resolved more quickly. The Defamation Act would allow judges to suggest money damages to the jury and offers Internet providers the defense of *offer of amends*. Under offer of amends, the defendant who has not defamed the plaintiff intentionally has the option of apologizing to the plaintiff, and pay damages as determined by the judge. Defendants will be able to an offer amends under the defense of *innocent dissemination*. Defendants will also be able to reduce their damages if they can prove plaintiff's general bad reputation.

The Defamation Act has numerous other provisions that would limit lawsuits. The Act cuts the time limit for bringing defamation actions in England and Wales from three years to one. The Defamation Act would also grant judges the discretion of throwing out any cases without a reasonable prospect of success by means of summary procedure. In strong cases, the judges will be able to award damages up to 10,000 pounds, grant injunctions restraining further publication, and order the defendant to publish a correction, apology or report of the income.


C. JAPAN
Thus far, Japan has not been overly concerned with regulating materials that appear on the Internet. Recently, Japanese computer network operators mapped out ethical guidelines to eliminate libel on the Internet. The Electronic Network Consortium compiled guidelines for both network operators and subscribers. The guidelines asks that good manners are used on the Internet, and that human rights and public order must be maintained. Computer network operators that violate the guidelines face reprimand, but no punishments. The Ministry of International Trade and Industry which oversees the Electronic Consortium, does not foresee the need to implement laws regulating the Internet, since the Ministry has faith that the network operators will adhere to the guidelines. (Kyodo News Summary, Kyodo News Service, February 16, 1996)


D. SINGAPORE
Singapore has perhaps the strongest libel laws that can be found around the world. The Singapore leaders have clearly indicated to the public that libel on the Internet will not be tolerated and abusers will be severely punished. The slander and libel statutes of Singapore have been frequently and very effectively employed in the past to silence libelers in the newspaper medium. On March 6, 1996, the government made providers and publishers liable for the content placed on the Internet. Service providers and content publishers must now register with the Singapore Broadcasting Authority and libel laws covering the print media have been extended to cover the Internet. (*Singapore Wakes Up and Smells the Internet*, Business Week Editions, March 25, 1996, Helen Chang, p. 30.

The Singapore government seeks to control the content of what is placed upon the Internet in the same manner that the newspapers and television are controlled. To control the television medium, the government banned the use of satellite dishes, and regulates what channels are allowed on cable networks. (*Cyberspace in Singapore*, The New York Times, November 8, 1995, p.24) To control what materials are placed on the Internet, the government has developed a national phone line system through which individuals can access the Internet. The phone lines can be monitored and the abusers are then unable to escape detection. However, the government has been frustrated by two dilemmas: (1)the accessibility of foreign phone lines, and (2)cybercafes.

While individuals accessing the Internet in Singapore do so normally through government-run phone lines, the system is not foolproof since it can be easily circumvented by simply dialing into a foreign phone system. Conceding that this problem can not be easily resolved, the government has stated that while governmental monitoring can be avoided by accessing foreign phone systems, the government assumes that citizens will adhere to their system. (Id. p.24).

Another problem for the Singapore government are "cybercafes". Cybercafes are for popular locations for young people to socialize and also cruise the Internet. Internet users pay a fee for Internet time and, to the frustration of the Singapore government, can post anonymous messages. Recently a law firm in Singapore was libeled by a user at a cybercafe. Authorities were only able to trace the libelous message to the cybercafe. The courts are now faced with a similar dilemma that the American and British courts are dealing with; viewing the cybercafe owner as a newspaper vendor or as a publisher. (*Libelous message posted on Net through cybercafe*, The Straits Times, February 23, 1996, p. 1).

In an attempt to resolve the issue of cybercafe owner liability, the Singapore Broadcasting Authority recently declared that local laws would be enforceable when there is libel on the Internet. Ms. Ling Pek Ling, director of the Singapore's regulatory agency for the Internet (SBA) has also directed that the owners of the cybercafes may be held liable. However, the owners of the cybercafes have vehemently denied any responsibility by noting that they only provide access to the Internet, and do not review what is placed upon the Internet from their cybercafes. The courts of Singapore have not yet determined the liability of the owners of the cybercafes, but will clearly do so in the near future. (*Singapore Laws Apply in Cyberspace*, The Straits Times, February 24, 1996, p.23.)

In addition to regulating the Internet by punishing abusers, the Singapore government is also advancing a non-legal solution to the libel problem by initiating an educational program on Internet etiquette. The program seeks to train students how to use the Internet responsibly. (*Survey of Singapore*, Financial Times, February 8, 1996, p. 6).


III. RAMIFICATIONS OF THE DIFFERENT LEGAL APPROACHES TO INTERNET LIBEL
When an individual or company is libeled in a serious manner, it is likely that the libeled individual will look to the courts for a remedy. Individuals bringing suit for libel will frequently find that being libeled on the Internet places them into a unique position of being able to select the forum which suits them most favorably. *When a message is placed on a bulletin board on the Internet, each location that accesses the message becomes a potential forum. As long as the jurisdictional requirements for the forum are met, the plaintiff can file suit. In result, any exercise of legal jurisdiction and application of the different laws of potentially many jurisdictions in a massive network of constantly communicating computers spread among most of the countries of the world creates an instant Conflict of Laws nightmare . . . * (*Prepared Testimony of Anthony M. Rutkowski Executive Director, The Internet Society Before the House Committee on Science Technology Subcommittee Regarding the Internet and the Management of Objectionable Materials*, Federal News Service, July 27, 1995.)

The subscribers, owners and operators of on-line services are therefore potentially liable to every jurisdiction that has access to the Internet and subscribes to their services. *At least theoretically, user A may find himself subject to suit thousands of miles away in a country that does not require a showing of due process before allowing a court to exercise jurisdiction over a nonresident.* (*A Lawyer's Ramble Down the Information Superhighway: Defamation*, Jessica R. Friedman, 64 Fordham L. Rev. 794, p.803.)

For example, some states of the United States adhere to the *single publication rule*. The single publication rule favors using the plaintiff's domicile at the time that the libel occurred, since that is where there is the greatest potential for damage to the plaintiffs reputation to occur. However, not all states employ the single publication rule. Some states allow the plaintiff to maintain a separate libel action in each state that the libelous material was published.

Forum questions are further complicated by the various choice-of-law policies advanced by different countries around the world and each state within the United States. If the libel occurred and is published within the same state, then that state's libel laws will be applied. However, if the libel occurs in one state and then is published in other states, the choice-of-law rules of the forum state will determine what laws are applied to resolve the matter. In the United States alone, there are five different choice-of-law approaches used.

While the United States has yet to address the problem of forum shopping, Great Britain, along with other members of the European Community, has recently enacted a ruling to limit forum shopping within the European Community. The ruling declares that when an individual has been libeled by material that is distributed among several or all of the member states of the European Court of Justice, suit may be brought in the country where the libel was published, or in each member state where the libelous material was distributed.(*Court Rules on Jurisdiction In Libel Cases*, Reuter European Community Report, March 7, 1995). However, the ruling does not offer a solution for potential lawsuits arising when libelous material has been distributed world-wide. As the number of Internet libel cases rise, the European approach may serve as a model solution for limiting forum shopping.


IV. ALTERNATIVE APPROACHES TO POLICING THE INTERNET
Individuals who use the Internet regularly feel that the Internet can be usually self-policed by Internet users. For example, users of the Internet violating *netiquette* take the risk of getting *flamed*. This self-regulating mechanism of the Internet occurs in response to a breach of netiquette, and involves a steam of undesirable messages from persons whom the Internet abuser irritated. The volume of the messages can shut down the system, and sometimes the Internet service provider will kick the abuser * . . . off the system In the vernacular, this is referred to as the net.death.penalty.* (*The Lawyer's Guide to the Internet*, G. Burgess Allison, American Bar Association, 1995, p. 42.)

In addition to flaming, Internet users often combat abuse by condemning the libelous statement and providing the public with the truth. For example, in 1995 an anonymous message was placed on an American Online electronic bulletin board asserting that Boston Market's homemade potatoes were in actuality Sysco instant potatoes. Boston Market chose to fight back through the Internet. Gary Gerdemann, spokesman for Boston at the time, replied by posting a message on the same bulletin board saying, *Hey, dude, Sysco trucks the potatoes in, but they are not Sysco brand potatoes. They are whole potatoes. And they really do have the big mashers in the back of every restaurant.* (Companies Entangled by the Web; Internet An Easy Tool For Corporate Critics", L.A. Lorek, Sun-Sentinal, March 3, 1996, p. 1F.) Gerdemann felt that since his customers use the Internet, the most effective way to counter the slander was to fight back on the Internet. Boston Market's strategy paid off, and coupled with postings placed by supportive customers, the potato slander was effectively smashed. (Lorek, p. 1F)


CONCLUSION
Libel suits for material placed upon the Internet promises to be an exciting and volatile area of law. The methods that different countries currently use to resolve libel issues will have varying rates of effectiveness, and should be viewed closely as new legislation is developed to more handle the growing number of Internet libel cases. At the same time, strong consideration should be made of having an international methodology of handling Internet libel cases. Forum shopping problems and the worldly nature of the Internet may make an international approach the most realistic solution.

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