In cyberspace,2 practically all users have the means to disseminate information to a virtually limitless community. Cyberspace allows, for all intents and purposes, any person to broadcast thoughts, ideas, opinions, facts
and so forth to an incredibly large audience in a matter of a few seconds. In short, cyberspace has revolutionized the way we communicate with each other. However, this revolution is not without its price. Many legal issues have and will arise. Computer b
ulletin boards provide a prime example of the problems that often arise and the legal complications that follow therefrom. Such complications range from criminal matters3, to
copyright questions4, to defamation.
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Defamation on computer bulletin boards poses plenty of new legal questions. Such questions
may include whether a message is to be classified as libel or slander.5 Further questions
concern whether a bulletin board service is considered a publisher. Indeed, the majority of the
limited articles on this topic discuss whether computer bulletin board operators can be held
liable for the defamatory statements of its users and whether the first amendment allows for
such liability.6 The purpose of this paper is to analyze whether the
First Amendment7 mandates
limits on the liability (i.e., a minimum standard that plaintiffs must meet in certain defamation
cases -- actual malice) of those who actually post the defamatory statement on computer
bulletin boards. To this end, this paper is broken up into six parts.
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Part II of this paper will discuss computer bulletin boards and how they work. Part III will overview the few cases that have occurred concerning defamation on computer bulletin boards. Part III will first discuss the cases concerning the liability of co mputer bulletin board operators and then discuss the cases against the actual users (i.e., the people who post messages) of computer bulletin boards. Part IV of this paper will outline the law of defamation at common law and the changes delineated by the Supreme Court of the United States. Finally, this paper, in part V, will analyze the present law in order to determine whether it warrants change in light of the characteristics presented by computer bulletin boards. It is the contention of this paper tha t the First Amendment does not require a showing of actual malice in defamation cases outside of the conventional realm outlined by the Supreme Court of the United States.
A computer bulletin board is analogous to a "cork and pin" board where users can read, post and respond to messages.8 A typical computer bulletin board system (i.e., a BBS) stores information posted by its users and then transmits su
ch posts to other users.9 Any person can access a BBS by simply subscribing to an information service provider (i.e., an ISP) and then with the proper computer, modem and software may access a BBS (assuming, of course, that access is granted by
the board's operator, though most boards do not require such access).10
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Once logged into a system, a user generally has a wide array of choices. Firstly, most ISP's categorize their BBBs by subject matter and sub-topics.11 For example, the countless bulletin boards on the internet are arranged in a series of newsg
roups known as Usenet.12 Topic headings range from cars to sports to news to deviant sexual behavior and so forth. Secondly, a user may, as previously noted, elect to read the postings, write one and/or respond to a posting. To date, there are
more than 100,000 computer bulletin boards and the number is still growing.13 Simply put, computer bulletin boards are becoming one of the most important means of communication. But, does this mean that its users should be insulated from defama
tion lawsuits?
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A. Suits Against Bulletin Board Operators:
There has been few reported cases in the United States that have involved defamation on computer bulletin boards. In fact, there have been no cases in the United States that have decided an issue in a suit involving a defamed individual and a computer bul
letin board user. As stated, most, if not all, articles and cases dealing with defamation on computer bulletin boards involve questions about the status of the bulletin board operator (i.e., are they publishers of defamatory statements).14 This, of course, is not surprising.15 However, these cases may be helpful in outlining the typical scenario surrounding defamation cases on computer bulletin boards.
When addressing the potential liability of computer bulletin board operators, the law, the little that exists, appears to turn on editorial control. In Cubby, Inc. v. Compuserve, Inc.,16<
/SUP> the plaintiff sued Compuserve for defamatory statements made in a newsletter carried by Compuserve as part of Compuserve's Information Service (i.e., CIS). CIS offered its subscriber's access to many special interest forums including many bulletin b
oards. However, Compuserve contracted to a third party the duty to edit the contents of its forums. The court found that Compuserve was merely a distributor or common carrier, and not a publisher, of the defamatory remarks. The court remarked that Compuse
rve had "no more editorial control over such a publication than does a public library...and it would be no more feasible for [them] to examine every publication it carries for potentially defamatory statements than it would be for any other distribut
or to do so."17
However, in a somewhat analogous situation, a court found that Prodigy was a publisher of defamatory statements made by a bulletin board user.18 In Stratton, the court found that
Prodigy, unlike Compuserve, voluntarily applied editorial control over the content of the messages posted on its bulletin boards. The court reached this decision because Prodigy used a special software screening program, announced to its users that it sho
uld not post insulting statements and because Prodigy used its employees to scan and delete bulletin board postings.19 Thus, it would appear that in cases addressing the issue whether BBS operators are publishers, the case would apparently turn
on the amount of editorial control exercised by the operator.20
B. Suits Against Computer Bulletin Board Users:
As previously stated, there have been no reported cases in the United States addressing defamation issues directed against computer bulletin board users. However, cases have been filed which may prove to be instructive.
The most important American case dealing with the liability of computer bulletin board users was Suarez Corp. Industries v. Meeks.21. In Suarez, a journalist, Brock Meeks, posted defamatory messages on a computer bulletin bo
ard about the plaintiff. The plaintiff had sent electronic mail messages to Meeks promising to make him rich.22 In response, Meeks posted a statement calling Suarez a "slick direct-mail baron" and called Suarez's company "nothing
more than a shell company for a direct mailing scam."23 As anticipated, Suarez sued seeking damages and an injunction barring Meeks from posting or publishing anything about Suarez on the Internet.
In a summary judgment motion, Meeks argued that Suarez should have to prove actual malice according to the standards set forth by the Supreme Court.24 This argument would postulate that Suarez is a public figure and, as such, he must prove tha
t Meeks made his statements with actual malice. However, the argument that Suarez was a public figure had nothing to do with the position he maintains in society. Rather, Meeks argued that Suarez was a public figure because the statement were made on a co
mputer bulletin board and Suarez could easily respond to the statements.25 However, before the matter could be decided by the courts, the parties settled the case.
In another case, a corporation sued a bulletin board user after he posted a statement on a Prodigy bulletin board that said the company "is really having a difficult time" and "it appears to be a fraud."26 The plaintiff cla
imed that the statements caused its stock prices to fall drastically. However, before any legal issues could be resolved concerning the proper First Amendment standard to be applied in this action, the case was settled for a nominal sum.27
The issues presented by defamatory statements made by computer bulletin board users are not confined to the United States. For example, in England, Dr. Laurence Godfrey, a nuclear ph
ysicist, is suing Dr. Hallam-Baker, a researcher at CERN, the European Swiss Nuclear Physics Laboratory in Geneva, for statements made, concerning Godfrey's work, over the Usenet.28 The issues presented in this case, however, address choice
of law and the proper forum for the case.29
In probably the most famous case thus far, the Supreme Court of Western Australia decided an uncontested libel action, arising from a computer bulletin board, in Rindos v. Hardwick.30 In Rindos, a posting was made on a computer bulletin board, dealing with anthropologists, criticizing the University of Western Australia for not giving tenure to the plaintiff, David Rindos, and for dismissing him. The defendant replied
to the message with five defamatory imputations. Specifically, the defendant stated or implied that the plaintiff 1) engaged in sexual misconduct with a "local boy" called "Puppy"; 2) had no genuine academic ability and had not based h
is hypothesis on proper research but rather upon "berating and bullying others"; 3) was against Aboriginal land rights and the Aboriginal people and was a racist; 4) was not a genuine anthropologist but a tools of mining corporations; and 5) dra
nk in excess. Id. The court did not accept that the third, fourth, and fifth statements gave rise to the imputations alleged by the plaintiff.31 In a somewhat brief decision, the court found for the plaintiff and awarded $40,000 withou
t attempting to distinguish between computer bulletin board speech and other forms of speech.
Defamation law can be traced back at least to the time of William the Conqueror, who established separate courts to oversee the canon law remedy predicated upon the crime or sin of bearing false witness.32 The underlying purpose of defamation
law was to protect one's reputation which can be said to be a right found within one's right to liberty.33 The traditional common law defamation action simply required an allegation that a defamatory statement about another was made to a third
party (i.e., publication). In some circumstances, the defamation was actionable per se (i.e., it did not require a showing of harm to one's reputation) while in other circumstances it was actionable per quod (requiring proof of damage).34
Once the plaintiff illustrates its case, at common law, the defendant is not without a defense. For example, the defense may use truth as a complete defense provided it can prove that all portions of its statement were indeed true.35 More impo
rtantly, common law recognizes numerous privileges which can excuse the defendant completely. There are two types of privileges. The first privilege is absolute in nature. That is to say, an absolute privilege immunizes a defendant completely without rega
rd to the person's motivation.36 Absolute privileges are narrow in scope and include anything said on the floor of Congress,37 anything said in a judicial proceeding,38 and things said by government officials acting within
the scope of their employment.39 However, it does not apply to a defendant charged with expressing libelous and damaging falsehoods in letters to the President of the United States about someone else.40
In addition to absolute privileges, there exists qualified privileges to make defamatory statements. However, this privilege does not immunize the defendant completely. If the plaintiff can show that the speech was motivated by malice on the part of the
defendant (i.e., for some other reason than which the law accords the privilege), then the privilege will not apply.41 The qualified privileges are numerous and may include such things as statements made by an employer about an employee's work,
42 statements made by a credit reporting agency about one's credit history,43 and so forth. As well, the qualified privilege encompasses anything said by someone if it is said to protect an important interest of the speaker, a third
party or others who have common interests.44
The final, and probably the most important, defense at common law is the fair comment privilege which involves the honest expression of one's opinion on a matter of public interest. However, as discussed in the next section, this defense has bec
ome less important due to the numerous Supreme Court rulings.
B. The Constitutional Law of Defamation:
In 1964, the Supreme Court threw a wrench into the entire law of defamation with its decision in New York Times v. Sullivan. 45 In this case, a civil rights group bought a full page advertisement in the New York Times wherein they mad
e note of police activities in Montgomery, Alabama. However, some of what the advertisement said was false. The plaintiff, the Montgomery police commissioner, sued based on the premise that the advertisement referred to him because he was in charge of the
police. Under Alabama law, the case was one of libel per se. However, the defendant could assert the fair comment privilege if they could prove the facts were indeed true.46
In a landmark opinion, the Supreme Court held that, among other things, the defenses of fair comment and truth, under these facts, were not enough to satisfy First Amendment interests. The Supreme Court declared that where the plaintiff is a public o
fficial and the defendant is a citizen critic the First Amendment mandates special rules for defamation law otherwise the damages awarded the plaintiff would be analogous to the crime of seditious libel.47 The First Amendment, the
Court held, is based upon the nation's commitment "to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials."48
Thus, in order to protect the above-noted citizen critic, the Supreme Court found that a rule was needed in order to prevent public officials from recovering damages for defamatory falsehoods relating to their official conduct. Therefore, the Court fashi
oned a standard which requires that for a public official to succeed in such a suit, they must establish that the defendant made the false statement with actual malice (i.e., with knowledge of its falsity or with reckless disregard of its falsity
).49
The principle forwarded in New York Times, unfortunately, did not remain restricted, It was later said to extend to those in government who were not elected.51 Thereafter, the Court ignored that analogy to seditious libel and extende
d the actual malice test to private individuals who were said to be in the public spotlight.52 However, the Court could not agree when exactly the actual malice standard should be applied. Should it apply depending on one's position in society
or should it apply to specific speech.53
In 1974, the Court, in Gertz v. Robert Welch, Inc., rejected all previous standards as to when the actual malice standard should apply and found it applicable only in cases involving defamation of public officials and public figures.54 In Gertz, the plaintiff was a lawyer who was retained, by the family of a boy killed by the police, to file a suit against the police. The defamation arose when the defendant maliciously attacked the plaintiff in the local media. The plaintiff sued and
won a jury verdict of $50,000. 55
On appeal, the Supreme Court framed the issue as whether a newspaper or broadcaster that publishes defamatory falsehoods about a private individual may claim a constitutional privilege thus requiring the use of New York Times' actual malice stan
dard.56 In a milestone ruling, the court held that so long as they do not impose liability without fault, a state may set any form of standard it chooses in a defamation action where the individual is a private individual.57 The Cour
t reasoned that private individuals are more in need of judicial aid and thus the state has a greater interest in protecting their reputations by providing them with an effective remedy because they have not voluntarily invited public comment.58
This reasoning led the Court to distinguish between private and public figures. Unlike public figures, private figures do not ordinarily have access to channels of effective communication that would allow them to correct a false and defamatory statement
(i.e., access to the media). Furthermore, private persons, unlike public persons, have not voluntarily exposed themselves to public scrutiny and comment (i.e., they have not assumed the risk).59
Additionally, the Court noted that there are differences amongst public figures. For example, there are those who occupy such positions of power and influence that they are deemed to be public figures for all purposes (e.g., Michael Jordan, Michael Jacks
on, etc..). However, as the Court correctly noted, the more common type of public figure is of limited purpose (i.e., the limited-purpose public figure). Such a person generally has thrusted himself into the middle of a specific public issue in order to i
nfluence the resolution of the issue.60 The Court found that Gertz had not achieved the fame of the all-purpose public figure. Similarly, he was not a limited public figure simply because he was a lawyer in an important legal case. However, the
Court remanded the case on the issue of damages because the jury was able to impose damages without proof of injury.61
Thus, in essence, the Court outlined the rationale behind distinguishing between public and private figures (i.e., access to the media and assumption of risk) and then offered a test for the most common public figure (i.e., did they voluntarily thrust th
emselves into a public controversy so as to influence the outcome). In later cases, the Court seemed more willing to apply the "test" rather than the "rationale" of Gertz.
The Court's willingness to apply the "test" rather than the "rationale" is illustrated when it found that a locally prominent individual involved in a highly publicized divorce was not a public figure because she did not "thrust
herself into the forefront of any public controversy in order to influence the resolution of the issues involved in it."62 As well, a scientist who received federal grants was deemed not to be a public figure when a United States Senator d
efamed him. The Court found that to the extent that the scientist's writings became a matter of public interest, it was a consequence of the defendant and, clearly, a defendant cannot "create their own defense by making the claimant a public figure.&
quot;63 Likewise, the Court found that an individual, who was found guilty of contempt for refusing to appear before a grand jury many years previously, was not a public figure despite the fact that his controversy attracted much media attentio
n.64
Though many of the questions posed by Gertz were subsequently answered, there remains many more questions. Perhaps, the most important question is whether the actual malice standard applies to non-media defendants. The Court had the opportunity
to resolve this question but skirted the issue in Dun & Bradstreet, Inc., v. Greenmoss Builders, Inc., where the Court expressly declined to distinguish between media and non-media defendants and held that Gertz did not apply to cases in
volving private plaintiffs and issues of private concern.65
Despite the labyrinth created by the Supreme Court and the many unanswered questions it has posed, it seems clear that in order to determine when to apply the actual malice standard, a court ought to look to the type of speech (i.e., is it a matter of pu
blic or private concern) and the type of plaintiff (i.e., public or private figure). The question is how the present law of defamation applies to computer bulletin boards.
It has been argued by other commentators that courts ought to look to three specific factors.66 These factors are (1) whether the plaintiff has access to the computer bulletin board in order to reply to defamatory statements (i.e., access to t
he media); (2) the extent the plaintiff participated on the computer bulletin board (assumption of risk); and (3) the likelihood that speech will be chilled. However, it seems quite clear that these commentators are in error. That is to say, they have app
lied the "rationale" of Gertz rather than its "test."67 Nevertheless, I feel compelled to analyze the above argument with the assumption that the Gertz rationale is the appropriate standard to apply when de
termining whether one is a public figure.68
The first factor, assuming we are to apply the Gertz rationale, is whether the plaintiff has access to the computer bulletin board in order to reply to defamatory statements. This factor posits that a plaintiff who can post counterspeech on a bu
lletin board is analogous to a public figure who has the means and access to reply to defamatory speech by way of the media.69 This analogy, however, breaks down. The Gertz rationale of access to the media had more to do with the risk
assumed by public figures than the effectiveness of a reply to defamatory speech.70 To separate the access-to-media prong from the assumption of risk prong makes the rationale postulated by Gertz utterly meaningless.
However, assuming that the ability to reply on computer bulletin boards can satisfy the first prong of the Gertz rationale, an additional problem arises. Is the ability to reply on bulletin boards an effective remedy? There is no doubt that the
ability to reply in the ordinary media is often time consuming -- a reply to a defamatory statement by a newspaper may take many days and may not be read by many people. It is thus argued that a computer bulletin board offers a greater audience. It is sai
d that computer bulletin boards offer a means for people to answer what is said about them almost instantaneously thus providing for a more effective reply.71
This argument is precarious at best. It assumes that bulletin board users will find what was said about them easily. As previously noted, there are over 100,000 computer bulletin boards in the United States. Furthermore, not all users of one b
ulletin board have access to other bulletin boards. For example, unless you subscribe to America On-Line you will have no access to their bulletin boards.72
It seems that for the access-to-media argument to succeed, a potential defamation plaintiff ought to have access to the forum where his reputation was tarnished and where it can be redeemed.73 Thus, for this argument to succeed, a potential co
mputer bulletin board defamation plaintiff ought to have access to the actual forum where he was defamed. Does this mean computer bulletin boards as a whole or the specific computer bulletin board where he was defamed? It would seem entirely useless to sa
y the proper forum to reply to defamatory statements is computer bulletin boards as a whole -- there are simply too many and furthermore, unlike newspapers, the conversation is often disorganized thus diminishing the effectiveness of counterspeech.74
Therefore, the ability to reply to defamatory speech argument would only be effective if the defamed individual had the ability to reply on the bulletin board where the speech was made and only if he had the ability to read the defamatory
remark within a reasonable period of time of its posting.75 However, I reiterate that this assumes that we can separate the access-to-media prong of Gertz from the assumption of risk prong. Additionally, it assumes that courts will app
ly the Gertz rationale rather than its test.
The second factor often considered in computer bulletin board defamation concerns the assumption of risk that users have agreed to by using the bulletin boards. The argument follows that "computer bulletin board users run the risk of closer scrutiny
than might otherwise be the case. In short, a person who posts a message on a bulletin board should expect to be flamed."76 It is argued that the assumption of risk rationale is less important on bulletin boards because of the "overw
helming ability to respond that those libel plaintiffs with access to the bulletin board enjoy." As discussed previously, this ability to respond is not all that effective and possible. Additionally, this argument carries with it incredibly awful pol
icy implications. It seems to say that because the culture and speech on computer bulletin boards has evolved to become very harsh and critical then its users should be given a privilege to defame each other. This is tantamount to saying that because the
writings on public restroom walls has evolved to become harsh and critical, then the people who write on those walls ought to be granted a privilege to defame each other.77 For these reasons, this twist on the assumption of risk rationale does
not hold water.
The final factor considered is the chilling effect that liability would impose on computer bulletin boards. As the New York Times court understood, low fault standards would chill the critical speech about public officials. The analogy to sediti
on was lost, however, once the actual malice standard was applied to public figures. The argument for computer bulletin boards is that to apply a low standard of fault on them would chill their speech because such people have no one to pay the cost of a l
ibel suit. There are some problems with this argument. How does this differ from defamatory statements made by word of mouth or by letters? That the defamatory remark was made on a computer bulletin board instead of by word of mouth or by written letter m
akes no difference to the legal outcome.78 The chilling effect argument would, for all intents and purposes, apply equally as well to speech not made on computer bulletin boards. One may as well just argue that the actual malice standard should
apply to all speech.79
In light of the above noted arguments, how then should the law of defamation apply to computer bulletin boards? Simply put, the law, as puzzling as it is, will do fine. There is no need to add another twist into defamation law. That is to say, computer b
ulletin boards do not warrant any special protection outside of that delineated by the Supreme Court. Thus, when a defamatory statement is made on a bulletin board, a court ought to consider the nature of the speech -- Is it concerning a matter of public
or private interest. Secondly, the courts, though I'd rather see a repudiation of Gertz,80 ought to determine the status of the plaintiff. To this end, courts, given the Supreme Court's precedents, ought to, when analyzing who is a lim
ited public figure, apply the Gertz test. This may require analysis under the Gertz rationale but the ultimate issue must be whether the plaintiff voluntarily thrusted himself into the controversy so as to influence its outcome. Thus, wh
en applied to computer bulletin boards, this issue becomes a fact-specific question of how the plaintiff entered the controversy. In summary, computer bulletin boards warrant no further protection.
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IV. The Law of Defamation
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V. The Law of Defamation on Computer Bulletin Boards?
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VI. Conclusion
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