Question 1: What features distinguish the Internet from other publishing mediums that have led to the re-examination of the existing rules of defamation?

Question 2: Whether a party is characterized as a publisher is largely dependent on what?

Question 3: In the Cubby case, in what way did the court compare an Internet service provider (ISP) to a library, book store, or news stand?

Question 4: In the Prodigy case, the court concluded that Prodigy was a publisher while in the Cubby case, CompuServe was not considered a publisher. The distinction between these two ISPs was made in the Prodigy case based on what two grounds?

Next, open the second link above to the Electronic Frontier Foundation's "Bloggers' FAQ - Online Defamation Law" page, or read the page in the documents following this project in Canvas' Menu, and answer the following: What four elements must be proven to establish defamation?

https://www.eff.org/issues/bloggers/legal/liability/defamation

Question 5:

(a) Explain the different standards for defamation when reporting on a public figure versus a private figure. How is a public figure defined?

(b) Next, list or name a "public figure" of your choice, e.g. President Obama (please do not use Pres. Obama as your example). Then discuss why you consider such person to be public figure and NOT a private figure.

Read the article regarding online defamation and its relation to US law, provided by the South African law firm of Sonnenberg Hoffman & Galombik, and answer the following questions.

Cubby Case

Defamation on the Internet

"Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands; But he that filches of me my good name Robs me of that which not enriches him And makes me poor indeed"

Shakespeare, Othello Act III Scene 3

1.1 Introduction

Defamation is a private and common law matter and its rules place severe restrictions on free expression. The law of defamation seeks to find a balance between the individual's right to a reputation or good name and another's right to free expression. Over the years, the law has reflected the constant tension between these two competing rights.¹

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Being sued for defamation is a constant danger for ISPs and operators of bulletin boards and newsgroups. Every day there are hundreds of messages and postings which cross the boundaries between free expression and defamation. Each newsgroup is a public forum in which an Internet user can read and post messages on any particular area of interest. Topics range from the professional to the bizarre, such as the latest Elvis sightings. The potential for defamation is obviously high, as there is much use of personal abuse, attacks on other users' characters and other matters which could well be defamatory.

There are a number of features unique to the Internet, which distinguish it from other mediums through which defamatory content could be published and which have led to the re-examination of the existing rules of defamation. These unique features include:

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The global nature of the Internet raises jurisdictional issues and questions as to the applicable governing law. Plaintiffs may even have the luxury of "forum shopping" for jurisdictions where the law of defamation and awards for damages are most favourable.

• The interactive nature of some of the services on the Internet makes it akin to a talk show or a village town-hall session. The opportunity for an immediate reply is unparalleled compared to any other media.
• Accessibility is another feature of the Internet, which distinguishes it from traditional print or broadcast media. The relatively low cost of accessing the Internet means that every individual user has the potential to publish information to a world-wide audience.
• The anonymity of Internet use allows users to post messages and send e-mail without having to reveal their true identity and users are therefore far less inhibited about the content of their messages. The use of anonymous remailers has obvious benefits, for example encouraging victims of rape, child abuse or AIDS to seek counselling.² But it could also be used to spread pornography or defamatory messages over the Internet. Some writers even argue that the operators of anonymous remailers should be held accountable for constructive knowledge of civil and criminal violations over their systems.³

1.2 Online defamation in the United States of America

In Cubby Inc. v CompuServe⁴ the defendant was an ISP providing subscribers with access to a variety of special interest databases and forums. One of the forums focused on the journalism industry and provided specific information concerning broadcast journalism. One of the publications available carried false and defamatory statements about Cubby. The defendant did not dispute that the statements were in fact defamatory, but argued it acted as a distributor and not a publisher and could not be held liable for statements it did not know and had no reason to know of. It had no opportunity to review the contents of publications before they were uploaded into its computer data banks, relying on Smith v California,⁵ where the Supreme Court held that a distributor must have knowledge of the contents of a publication before it can incur liability for its distribution.

Whether a party is characterised as a publisher is largely dependent on how much editorial control is exercised over a publication. In Miami Herald Publishing Co. v Tornillo⁶ the Supreme Court held that the choice of material to go into a newspaper, and the decisions made as to limitations, size and content constitute the exercise of editorial control.

In the Cubby decision the court characterised the defendant's product as an electronic library that provides a variety of publications and collects subscriber fees in return for access. The court found, furthermore, that the defendant had no more control over such publications than does a public library, book store or news stand and it would not be feasible for it to examine every publication it carries for potentially defamatory statements.

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Get the Cubby judgment at http://www.bitlaw.com/source/cases/copyright/cubby.htmlLinks to an external site.

In Stratton Oakmont Inc. et al v Prodigy Services Company⁷ the defendant was an ISP that hosted a bulletin board where subscribers discussed stocks, investments and other financial matters. An unidentified person posted statements to the bulletin board about the plaintiff, a securities investment bank, stating that its president committed fraudulent acts in connection with a public offering of stock. The president was described as "100% criminal", "soon to be a proven criminal" and the plaintiff was characterised as a "cult of brokers who either lie for a living or get fired." Consequently Prodigy was sued for defamation based on its policy that it exercised editorial control and used board leaders, in this instance Charles Epstein, whose duties included enforcement of promulgated content guidelines. Prodigy also used a software screening program, which enabled board leaders to delete postings considered to be offensive or in bad taste. The plaintiff alleged that Prodigy was a publisher and not merely a distributor. Prodigy countered these claims by observing that although board leaders may remove postings that violate its guidelines, this was not the equivalent of acting as an editor. For legal authority Prodigy argued that it was akin to a distributor, much like CompuServe's position in the Cubby decision.

In granting summary judgment to the plaintiff the court concluded that Prodigy was a publisher and should incur the level of liability associated with such status. The court distinguished the Cubby decision on two grounds. First, Prodigy held itself out to the public as a service that controlled the content on its bulletin board. Second, it had implemented this control through software screening programs and the use of discussion leaders to enforce its policies and guidelines.

Get the Prodigy judgment at http://www.eff.org/pub/Activism/Legislation/Legal/Cases/ Stratton_ Oakmont_Porush_v_Prodigy/stratton- oakmont_porush_v_prodigy _et-al.decisionLinks to an external site.

US legislators have responded to the Prodigy judgment by enacting legislation to protect ISPs that take affirmative steps to remove, filter and edit material hosted by them from liability. Congress added to the Telecommunications Act of 1996 a new Title V, known as the Communications Decency Act of 1996. One source of protection for ISPs is found in section 230(c) of the Act, which provides as follows:

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230(c) Protection for "good Samaritan" blocking and screening offensive material.

(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of - (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

A number of ISPs successfully used this section as a bar to defamation action. In Zeran v America Online Inc.⁸ the plaintiff became the target of a malicious hoax perpetrated through the Internet. Someone posted a message to AOL's bulletin board suggesting that the plaintiff was marketing a line of apparel called "Naughty Oklahoma T-shirts" that sported messages in extremely poor taste about the Oklahoma City bombing. The plaintiff received a flood of intimidating phone calls and contacted AOL demanding that the posting be removed and a retraction published. AOL agreed to remove the posting but refused to publish a retraction. After the posting was removed, and after assurances by AOL that the source account would be cancelled, additional messages were posted which persisted for several days. The plaintiff subsequently sued AOL for defamation but the claim was successfully defended by reliance on section 230(c) of the Communications Decency Act...

If you want to read more please buy the book on Kalahari.netLinks to an external site.

Author biography

Reinhardt Buys grew up on the farm Beerlaagte outside Grootvlei (Mpumalanga) and matriculated from the Ho??r Volkskool Heidelberg in 1989. He completed BLC and LLB degrees at the University of Pretoria where he was also elected to the Student Representative Council in 1994. After completion of his articles at Weavind & Weavind Attorneys in Pretoria, Reinhardt completed an LLM degree at the University of Cape Town, focusing on electronic commerce and civil liberties in cyberspace. He currently heads the IT/Internet Law unit at Sonnenberg Hoffmann & Galombik in Cape Town and enrolled for a Postgraduate Diploma in Company Law at the University of Stellenbosch. Reinhardt frequently publishes articles on Internet law and Y2K-related legal issues.