2.01

2.02

CHAPTER 2

Defamation?

Chapter Contents

Introduction

Scope

Common Law Defamation and the First
Amendment

Chapter Overview
Defamation Law in the United States
Common Law Elements of a Defamation Claim
?Defamatory Statement?
Defamation Per Se and Extrinsic
Facts
[ii] Hyperbole, Epithets and Insults
?About the Plaintiff?
?Published by the Defendant?
?With Malice?
Damages
Common Law Defenses to a Defamation Claim
Truth (or ?Justification?)
Substantial Truth
[ii] Implication and Insinuation
Privilege
Absolute Privilege
[ii] Conditional Privilege
First Amendment Modifications of State
Defamation Law
Fault 
Public Of?cials and Public Figures
[ii] Private-Figure Plaintiffs

Contributing author Robert W. Hamilton is a partner at Jones, Day, Rcavis 
Pogue, Columbus, Ohio

2_1 (Rel. 8)

 2.03

INTERNET AND ONLINE LAW 2-2

Falsity
Opinion
Presumed and Punitive Damages
Categories of Defamatory Speech Possibly
Unprotected by the First Amendment
Matters Not of ?Public Concern?
[ii] Nonmedia Defendants

Applying Defamation Law to Online Service Providers





Overview

Libel or Slander?

Liability of an OSP for Statements Made by

Others
?Publication? and ?Republishers? at
Common Law
Primary Republishers of Printed
Material
[ii] Distributors of Printed Material
Telegraph Companies
[iv] Telephone Companies
Messages Posted on Private Property
[vi] Radio and Television Broadcasters
Scripted or Pre-Recorded
Third Party Content
Unscripted, ?Live? Third
Party Content
Knowledge of Content and the First
Amendment
Distributors and ?Reason to Know?
[ii] Primary Republishers and ?Reason to
Know?

OSP Liability for Ti'ansmitting Third Party
Speech Without Knowledge of Its
Defamatory Content

?Real-Time? Discussions and
Conferences
[ii] Electronic Mail
Databases, File Areas and Bulletin
Boards
Transmission of Third Party
Content Contained in a
Database
Duty to Screen User Content
Posted on Bulletin Board

2-3 DEFAMATION 2.01[l]

[iv] Anonymous Users
OSP Liability for Transmitting Third Party
Speech with Knowledge of Its
Defamatory Content

Fault
[ii] Privilege to Provide Means of
Publication

OSP Use of Independent Contractors to
Manage Third Party Content
The Communications Decency Act of 1996
Application of First Amendment Doctrines to
Online Speech
Definition of a ?Public Figure?
Definitions of ?Media? and ?Private
Speech?
Retraction Statutes
Single Publication Rule
2.04 First Amendment Protection for American Online
Service Providers Subjected to Defamation Law of
Foreign Countries
Enforceability of Foreign Libel Judgments in the
United States
Application of Foreign Libel Law in Domestic
Litigation

2.0] Introduction

[1]?Scope

This chapter addresses the potential tort liability of an online service
provide (OSP) and its users when a statement transmitted by the OSP
tends to harm a person?s reputation. Such liability is generally governed
by the law of defamation. This chapter does not address the separate but
related torts of intentional and negligent in?iction of emotional distress,
which impose liability for ?extreme and outrageous? conduct causing
?severe emotional distress.?1 Defamatory statements frequently cause a
person mental anguish and emotional distress, and damages for such
injury are recoverable in a successful defamation action. When an
allegedly false statement is not actionable under the law of defamation,
however, courts typically will not permit recovery under a separate claim

I See generally, Restatement (Second) of Torts, 46 (1965).

(Rel. 8)

 2.01[2] INTERNET AND ONLINE LAW 2-4

for in?iction of emotional distress, usually on the ground that such
speech is, either as a matter of law or on the facts in a given case, insuf-
?ciently outrageous to support that type of claim.2

The law of defamation principally is concerned with the torts of
slander (oral communications) and libel (written communications),
which address harm to a plaintiff?s reputation. There are other related
causes of action for ?injurious falsehoods,? which address injuries to
the reputation of a plaintiff ?5 property. These actions, which include
slander of title, trade libel, and product disparagement, are subject to
much the same analysis applied to defamation claims, but they are not
directly discussed in this chapter.3

[2]?Common Law Defamation and the First Amendment

The torts of libel and slander are generally de?ned by each state?s
common law, although aspects of each tort are often the subject of
statutory provisions in many states. Since the 1960s, however, much
of the common law governing these torts has been displaced by court
decisions applying the First Amendment to allegedly defamatory
speech. While the body of case law ?constitutionalizing? the law of
defamation is extensive, the boundaries of the First Amendment?s
applicability to state defamation law are still undecided.

2 See, 

Sixth Circuit: Crall v. Gannett Satellite Information Network, Inc., 1992 WL
400713 at 20 Media L.Rep. (BNA) 1987, 1991 (SD. Ohio 1992).

Eighth Circuit: Deupree v. Iliff, 860 F.2d 300 (8th Cir. 1988).

Ninth Circuit: Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir.),
cert.dent'ed 493 US. 812 (1989).

State Courts:

Colorado: Brooks v. Paige, 773 P.2d 1098 (Col. App. 1988).

New Jersey: Decker v. Princeton Packet, Inc., 561 A.2d 1122 (NJ. 1989).

See also:

Supreme Court: Hustler Magazine, Inc. v. Falwell, 485 US. 46, 55-56, 108 
876, 99 L.Ed.2d4l (1988) (First Amendment bars emotional distress claim by public
?gure based on parody that does not imply a false fact published with actual malice).

Fourth Circuit: Zeran v. America Online, Inc., 958 F. Supp. 1124, 1133 n.19 (ED.
Va. 1997), aff?d 129 F.3d 327 (4th Cir. 1997), cert. denied 524 US. 937 (1998).

But see, Esposito-Hilder v. SFX Broadcasting, 654 259 (Sup. Ct. 1996)
(refusing to extend the Hustler v. Falwell ruling to an action for intentional in?iction
of emotional distress brought by a private person, who was the ?winner? of a radio
station?s ?ugliest bride contest?). See generally, Smolla, ?Emotional Distress and the
First Amendment: An Analysis of Hustler v. Falwell,? 20 Ariz. St. 423 (1988).

3 See generally: Sack, Libel, Slander, and Related Problems, 11.1 (2d ed. 1994);
Keeton, Prosser and Keeton on the Law of Torts, 128 (5th ed. 1984); Restatement
(Second) of Torts, (1977). See also, 15 U.S.C. 1125(a)(2) (1988) (Section
43(a)(2) of the Lanham Act, which imposes civil liability on one who, in ?commercial
advertising or promotion,? misrepresents the qualities of another?s ?goods, services, or
commercial activities?).

2-5 DEFAMATION 2.01[3]

Cases applying the First Amendment to state defamation law provide
a key context for the development of general First Amendment princi-
ples applicable to other areas of government regulation of the OSP
industry. In addition, the nature of online communications?which
permit unprecedented levels of widely distributed speech by private
individuals, about other private individuals, on matters on the fringe of
what is normally considered of legitimate public concern?makes it
likely that litigation in this area will ultimately de?ne the extent to which
state defamation law is not subject to First Amendment constraints.
Thus, the interaction between the common law of defamation and the
First Amendment in the context of online communications may have
far-reaching consequences both for regulation of the OSP industry and
for the law of defamation.

Overview

This chapter considers how the courts are likely to apply the law of
defamation to an OSP, both when it is the author of the defamatory
statement and when it transmits a statement authored by another. The
chapter discusses the common law of defamation and the extent to
which that law has been altered by application of the First Amendment.
These common law and First Amendment principles are analyzed to see
how likely it is that they would be applied in the context of statements
transmitted by an OSP. Finally, the chapter examines the potential
defamation exposure that OSPs face based on the law in other coun-
tries, many of which have far less regard for the freedom expression
that is protected in this country by the First Amendment.

(Rel. 8)

 2.02[l] INTERNET AND ONLINE LAW 2-6

2.02 Defamation Law in the United States

Since 1964, when the Supreme Court ?rst applied the First Amend-
ment to state defamation law,l the elements of a defamation claim
have become increasingly complex, with substantial variations depen-
dent on the identity of the plaintiff, the identity of the defendant, and
the subject matter of the statement. Even before the First Amendment
was applied to it, however, the common law of defamation had
evolved into an extensive and complicated body of law.

[1]?Common Law Elements of a Defamation Claim

Generally speaking, an action for defamation is allowed at common
law if a defamatory statement about the plaintiff was published by the
defendant with malice, although some kinds of defamatory statements
are not actionable unless they also caused ?special harm? to the plain-
tiff, such as pecuniary injury. Each element of this deceptively simple
description warrants brief elaboration.

[a]??Defamatory Statement?

A statement is defamatory if it ?tends? to cause injury to a person?s
reputation, exposes him to public hatred, contempt, ridicule, shame or
disgrace, or affects him adversely in his trade or business.2 The
plaintiff must demonstrate that the words ?tend? to injure a person?s
reputation; however, proof of actual damage to her reputation may not
be needed to establish that they are defamatory.? To be actionable, the

1 New York Times Co. v. Sullivan, 376 U.S. 254, 84 710, 11 L.Ed.2d 686
(1964).

2 See: Sack, Libel, Slander; and Related Problems, 2.4.1, at 71-74 (2d ed. 1994);
Keeton, Pmsser and Keeton on the Law of Torts, 111, at 773 (5th ed. 1984);
Restatement (Second) of Torts. 559 (I977).

2'1 The traditional common law rule is that reputational harm is presumed to ?ow
from words that ?tend? to injure reputation and thus a plaintiff need not prove that her
reputation was actually impaired by the defendant?s statement in order to establish a
claim for libel. See, 

Supreme Court: Time, Inc. v. Firestone, 424 US. 448, 460, 
L.Ed.2d (1976).

State Courts:

Florida: Miami Herald Publishing Co. v. A116, 458 so.2d 239, 10 Media L. Rep.
(RNA) 2383 (Fla. 1984).

Virginia: Poulston v. Rock, 251 Va. 254, 467 479 (1996).

See also, Restatement (Second) of Torts 612, comment (1977).

Some jurisdictions, however, have departed from the traditional rule and instead
require a plaintiff to allege and prove that her reputation was actually impaired, at
least unless ?actual malice? is also alleged and proven. See, 

Eighth Circuit: Pfannenstiel v. Osborne Publishing Co., 939 F. Supp. 1497 (D.
Kan. 1996).

2-6.1 DEFAMATION 2.02m

statement must be capable of bearing a meaning that is defamatory?"a
legal question decided by the court. If the court ?nds that a statement,
when read in context, can bear two different meanings, only one of
which is defamatory, the plaintiff then must prove that the recipients of
the communication understood the statement to have the defamatory
meaning?a fact question for the jury.3 In a few states, the courts apply
an ?innocent construction rule,? which prevents the imposition of

(Text continued on page 2-7)

Arkansas: United Insurance Co. of America v. Murphy, 331 Ark. 364, 961 
752 (1998).

Hawaii: Jenkins v. Liberty Newspapers Ltd. Partnership, 89 Haw. 254, 267-269,
971 P.2d 1089, 1102?1104 (1999).

Iowa: Schlegel v. Ottumwa Courier, 585 217 (Iowa 1998).

New Jersey: McLaughlin v. Rosanio, Bailets Talamo Inc., 331 NJ. Super. 303,
751 A.2d 1066 (2000) (?From the foregoing cases we distill a shift in favor of the
rule that a plaintiff in a libel or slander action must adduce concrete proof that he or
she was harmed, either by way of pecuniary losses or injury to his reputation?).

New York: Salomone v. MacMillan Publishing (30., 77 501, 429 
441 (lst Dep?t 1980).

Other jurisdictions will presume injury to reputation but not permit recovery for
emotional injuries without proof of actual injury to reputation. See, Richie v.
Paramount Pictures Corp, 54-4 21 (Minn. 1996).

See generally, Sack on Defamation, 2.4.17 (3d ed. 2000).

3 See: Yeager v. Local Union 20, 6 Ohio St. 3d 369, 372, 453 666 (1983);
Restatement (Second) of Torts, 614 (1977); Sack, N. 2 supra, 2.4.16, at 112?113
(2d ed. 1994).

(Rel. s)

2?7 DEFAMATION 2.02 

liability if the allegedly defamatory statement reasonably may be con-
strued as having a meaning that 15 not defamatory. -

[1]?Defamation ?Per Se? and Extrinsic Facts. If a reasonable person
would expect that the words ?on their face? would tend to harm a person?s
reputation, the statement is considered defamatory ?per se? and harm to 
the plaintiff?s reputation is presumed as a matter of law. A statement that
is not defamatory on its face can still be understood as having a defama-
tory meaning in light of ?extrinsic facts? known by those who read the
statement. For example, announcing that Mary and?Bob are the proud par? 
ents of a new baby could injure Mary?s reputation if she is known by
those who read the announcement to be married to Tom. All states permit
a plaintiff to establish a defamatory meaning by reference to such extrin-
sic facts. In most states, however, such statements are referred to as defa-
matory? ?per quod? and liability can be imposed only if the plaintiff also
proves special damages. 5

[iI]?Hyperbole, Epithets and Insults. Usually, calling someone a
?sleazebag,? ?blackmailer,? ?bastard,? ?bitch,? or some similar epithet
does not expose one to liability for defamation. The common law gener4
ally. holds that name?calling, hyperbole, abusive epithets, and other
loosely ?gurative statements are not defamatOry because, when taken in
context, a reasonable reader understands that the author is only using

?colorful? language to emphasize his point of view, not describing facts
about the person that would harm that person?s reputation. 6When such .
language cannot reasonably be interpreted as stating actual facts about the
plaintiff, the Supreme Court has held that this common law rule is
required by the First Amendment as well.

Many epithets have literal meanings that imply defamatory facts. The
statement ?Bob is a bastard,? if read literally, could mean that Bob, was
born out of wedlock, defaming both Bob and his parents. Usually, the.

 

4 See: Kolegas v. Heftel Broadcasting Corp, 154 Ill. 2d 1, 607 201 (1992);
Yeager v. Local Union 20, 6 Ohio St. 36 369, 372, 453 666 (1983); Sack, N. 2
supra, 2.4.14.

5 See, e. 

Ohio. Becker v. Toulmin, 165 Ohio St. 549 Syll.1] 4,138 N. E. 2d 39] (1956).

South Carolina: v. Thompson Newspapers, Inc. 411 S. 2d 664 (SC.
199]).

See also, Sack, Libel, Slander and Related Problems, 2. 7. 3, at 132 (2d ed. l994). But
see, Restatement (Second) of Torts, 569, comment (1977) (stating that requirement of
special damages for? per quod? actions is the? ?minority? rule).

 2-02[1] INTERNET AND ONLINE LAW 2-8

context of the statement is suf?cient to indicate whether it should be read
literally or ?guratively. Nevertheless, from time to time courts have
ignored the common law and constitutional rule and permitted a plaintiff
to sue for libel based on epithets that were clearly meant ?guratively, not
literally. 8

[b]??About the Plaintiff.? To be actionable, a statement must be
defamatory about the plaintiff, not some other person. It is not necessary
for the publication to name the plaintiff if his identity can be discerned
from the statement?s content or in light of extrinsic facts known by those
who received it. The intent of the author is not relevant. ?The test is not
whom the story intends to name, but who a part of the audience may rea?
sonably think is named, ?not who is meant but who is hit.?? 9 A defama-
tory statement about a group of people can give rise to a claim by one of
its members, if the group is suf?ciently small (usually fewer than twenty-

 

6 See: Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966) (?Not
being intended or understood as statement of fact, they are impossible of proof or disproof.
Indeed such words of vituperation and abuse re?ect more on the character of the user than
they do on that of the individual to whom they are intended to refer. It has long been set-
tled that such words are not themselves actionable as libelous?); Keeton, Prosser and Kee-
ton on the Law of Torts, 11], at 776 (5th ed. 1984) certain amount of vulgar
name-calling is tolerated, on the theory that it will necessarily be understood to amount to
nothing more?). See also: Ward v. Zelikovsky, 136 NJ. 516, 529-530, 643 A.2d 972,
978-979 (1994); Restatement (SeconaD of Torts, 566, comment 6 (1977).

7 Milkovich v. Lorain Journal Co., 497 US. 1, 19, 110 2695, 111 L.Ed.2d 1
(1990); Hustler Magazine, Inc. v. Falwell, 485 US. 46, 50, 108 876, 99 L.Ed.2d
41 (1988); Greenbelt Cooperative Publishing Ass?n v. Bressler, 398 US. 6, 90 
1537, 26 L.Ed.2d 6 (1970). See infra.

8 See, 

Fifth Circuit: Smith v. McMullen, 589 F. Supp. 642 (SD. Tex. 1984) (?despicable
human being?).

State Courts:

Georgia: Brooks v. Stone, 170 Ga. App. 457, 317 277 (?bitch?), a?'d 253 Ga.
565, 322 728 (1984). - -

Wyoming: Spence v. 816 P.2d 771 (Wyo. 1991) (describing attorney as
?vermin-infested turd dispenser?), cert. denied 503 US. 984 (1992).

9 Sims v. KIRO, Inc, 20 Wash. App. 229, 234, 580 P.2d 642, 645 (1978), cert. denied
441 US. 945 (1979). See generally, Annot, ?Suf?ciency of Identi?cation of Plaintiff by
Matter Complained of as Defamatory,? 54 746 (1987).

2-9 DEFAMATION 

?ve) and if a reasonable reader would understand the comment as apply-
ing to the plaintiff. 10

by the Defendant.? The word ?publication? is a
term of art in defamation law. A statement is ?published? when it is com-
municated to someone other than the person it defames. 11 If a recipient
repeats the statement to someone else, the statement has been ?repub-
lished.? Every repetition is itself a ?publication.? The republisher is usu?
ally treated as having ?adopted? the statement and is subject to liability as
if he were the original publisher. 12 Thus, the law treats as ?publishers?
persons who participate in the process of disseminating a statement to
others, although those who merely ?deliver? or ?transmit? it are subject to
liability as republishers only if they know or have reason to know of its

 

?0 Compare Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952) (statement that
?all saleswomen employed by? department store were ?call girls? did not defame any one
of the 382 saleswomen, but statement that ?most? of the salesmen were ?faggots? did
defame each of the twenty-?ve salesmen), with Alvord-Polk, Inc. v. F. Schumacher 
Co., 37,F.3d 996, 1015-1016 (3d Cir. 1994), cert. denied 1 15 1691 (1995) (reference
to phone-order wallpaper merchants as ?pirates? did not defame plaintiff, although there
were fewer than twenty-?ve such merchants, because group was too ?amorphous and
See Ogren v. Employers Reinsurance Corp., 19 Wis. 2d 379, 350 
725 (Wis. App. 1984) (criticism of a ?family? for not being loving enough to prevent a
man?s suicide did not defame the man?s uncles and aunts but did defame his mother and
sister).

Ostrowe v. Lee, 256 NY. 36, 38, 175 NE. 505 (1931) (Cardozo, J.) defamatory
writing is not published if it is read by no one but the one defamed. Published it is, how-
ever, as soon as read by any one else?). State law varies as to whether a statement made by
one employee to other employees of the same corporation has been ?published? by the
corporation or, instead, simply constitutes the corporation communicating with itself. See:
Bals v. Verduzco, Inc., 600 1353 (Ind. 1992); Annot, ?Defamation: Publication by
Intracorporate Communication of Employee?s Evaluation,? 47 674 (1986);
Restatement (Second) of Torts, 577, comment i (1977).

?2 Third Circuit: Schiavone Construction Co. v. Time, Inc., 735 F.2d 94 (3d Cir.
1984).

Tenth Circuit: Dixson v. Newseek, Inc., 562 F.2d 626, 631 (10th Cir. 1977).

District of Columbia Circuit: Liberty Lobby, Inc. v. Dow Jones Co., 838 F.2d 1287,
1298 (DC. Cir.), cert. denied 488 U.S. 825 (1988).

See: Sack, Libel, Slander, and Related Problems, 2.6.1 and (2d ed. 1994); Kee-
ton, Presser and Keeton on the Law of Torts, 113, at 799 (5th ed. 1984); Restatement
(Second) of Torts, 578 (1977).

 2.02m INTERNET AND ONLINE LAW 2-10

defamatory content. 13 The original publisher also is liable for all republi-
cations of his statement that are reasonably foreseeable. 14

[d]??With Malice.? Under the traditional common law, ?malice?
was a necessary element of a defamation claim. At common law, ?mal-
ice? generally refers to action taken by a defendant with an improper
motive, such as hatred, ill will, revenge, or with conscious disregard for
the rights, safety and feelings of the plaintiff. '5 Over time, courts deter-
mined that the mere fact of publishing defamatory words (or at least those
defamatory on their face) implies a level of ?malice of the character nec-
essary to support a judgment? for defamation. 16 Thus, ?implied malice?
or ?legal malice??associated with a wrongful act, intentionally done,
without just cause or excuse?became automatically presumed by the
common law of defamation. ?7 While a plaintiff might offer proof of tradi-
tional ?common law malice? to defeat a privilege or to justify punitive
damages, such proof is not necessary to state a defamation claim. If the
defendant published the statement, and that statement was defamatory,
false and unprivileged, he is liable under the common law, even if he had

 

?3 Keeton, Prosser and Keeton on the Law of Torts, 113, at 799, 803 (5th ed. 1984);
Restatement (Second) of Torts, 581 (1977). This distinction between ?primary publish-
ers? and those who merely ?transmit? or ?deliver,? sometimes referred to as ?secondary
publishers,? is detailed below infra) in the context of an liability for
transmitting third party content.

?4 See, 

Fourth Circuit: Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681 (4th Cir. 1989).

State Courts:

Virginia: Weaver v. Bene?cial Finance Co., 199 Va. 196, 98 687 (1957) (fore-
seeable republication after expiration of statute of limitations gives rise to new cause of
action against original publisher).

But see,

Seventh Circuit: Oberman v. Dun Bradstreet, Inc., 586 F.2d 1173, 1175 (7th Cir.
1978) (original publisher liable for republication only, if it occurs with his express or
implied consent).

See generally: Sack, Libel, Slander, and Related Problems, 2.6.2, at 126-127 (2d ed.
1994); Keeton, Prosser and Keeton on the Law of Torts, 113, at 799 (5th ed. 1984);
Painter, ?Republication Problems in the Law of Defamation,? 47 Va. L. Rev. 1131 (1961);
Annot, ?Liability of Publisher of Defamatory Statement for its Repetition or Republica-
tion by Others,? 96 373 (1964).

'5 See, Preston v. Murty, 32 Ohio St. 3d 334, 512 1174, 1175-1176
(1987).

'6 Westropp v. E.W. Scripps Co., 148 Ohio St. 365, 74 340, 347 (1947).
'7 See, Quinones v. United States, 492 F.2d 1269, 1274-1275 (3d Cir. 1974).

2-1 1 DEFAMATION 2.02m

no reason to know that the statement was false. In this context, libel and
slander at common law have been referred to as ?strict liability? torts. 18

[e]?Damages. There are typically three types of damages in a defa-
mation action: special damages, general damages, and punitive damages.
Special damages are awarded for actual economic or pecuniary loss
caused by the defamation. 19 Liability for slander is imposed only if spe?
cial damages are proven, unless the statement falls within one of the four
categories of ?slander per se.? 20 In most states, special damages are also a
prerequisite to liability for statements that are defamatory only in light of
extrinsic facts (?per quod?). 2]

General damages are awarded to compensate the plaintiff for injuries
that are not readily measured in money terms, such as impairment of rep-
utation and standing in the community, disgrace, insulted honor, indigna-
tion, personal humiliation, mental anguish and emotional distress. ?The
common law of defamation is an oddity of tort law? because it allows a
plaintiff who establishes the defendant?s liability to recover general dam-
ages without proving that she actually incurred any such gen'eral harms. 22

 

?8 Herbert v. Lando, 441 U.S. 153, 159 n.4, 99 1635, 60 L.Ed.2d 115 (1979). See
Keaton, Prosser and Keeton on the Law of Torts, 113, at 803-804, 808-810 (5th ed.
1984).

?9 See: Liberman v. Gelstein, 30 429, 434-435, 605 344, 347, 590
857 (1992); Keeton, Prosser and Keeton on the Law of Torts, 112, at 794 (5th
ed. 1984); Restatement (SeconaD of Torts, 575, comment (1977).

20 See, Ward v. Zelikovsky, 136 NJ. 516, 539-542, 643 A.2d 972, 984-985
(1994). The four categories of ?slander per se? at common law are statements that impute
to the p1aintiff(1) a serious criminal offense, (2) a loathsome disease, (3) a matter incom-
patible with her business, trade, profession, or of?ce, and (4) serious sexual misconduct.
136 NJ. at 526; Restatement (Second) of Torts, 570 (1977).

2] See N. 5 supra.

22 Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 2997, 41 L.Ed.2d 789
(1974). See, 

Supreme Court: Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
760-761, 105 2939, 86 L.Ed.2d 593 (1985) (plurality opinion); 472 U.S. at 765
(White, J., concurring).

Eighth Circuit: Luster v. Retail Credit (30., 575 F.2d 609, 619 (8th Cir. 1978).

See also, Anderson, ?Reputation, Compensation, and Proof,? 25 Wm. Mary L. Rev.
747, 749-750 (1984) (?Judges cannot give meaningful instructions when the substantive
law concedes that ?[t]here is no legal measure of damages in actions for these wrongs. The
amount which the injured party ought to recover is referred to the sound discretion of the
jury.? As a result, the process of ?xing an amount of presumed damages is inherently irra-
tional?). (Citation omitted.)

 2.02 INTERNET AND ONLINE LAW 2-12

Such damages are ?presumed? by the common law from the fact of publi?
cation of a defamatory statement about the plaintiff. While the plaintiff is
permitted to offer proof of actual injuries of this type, such proof is not
required to recover presumed damages at common law, even in those
cases where proof of special damages is required to establish liability. 23

At common law, punitive damages are available if the plaintiff estab-
lishes that the defendant acted with ?common law malice,? that is, with
bad faith, ill will, spite, or with conscious disregard for the rights, safety
and feelings of the plaintiff. Some states require proof of actual injury
before a plaintiff may recover punitive damages, while the common law
in other states permits recovery of punitive damages whenever nominal or
presumed damages are awarded. 24 The defendant can prove that he has
retracted the defamatory statement to rebut evidence of malice and to mit-
igate general and punitive damages; 25 in many states, a ?retraction stat?
ute? now bars the award of punitive damages against a media defendant if
the defendant has made a proper retraction or correction. 26

[2]?Common Law Defenses to a Defamation Claim

Because the common law presumes that a defamatory statement was
made with ?implied? or ?legal? malice, it is up to the defendant to rebut
this presumption by showing some ?just cause or excuse? for making the
statement. These defenses are typically referred to as ?justi?cation? 
the statement was true) and ?privilege.?

[a]?Truth (or ?Justification?). While ?falsity? is generally an ele-
ment of a defamation claim, an unprivileged defamatory statement is pre-
sumed by the traditional common law to be false, placing the burden on
the defendant to prove the truth of the statement as an af?rmative
defense. 27 In some states, this common law rule has been codi?ed by stat-
ute and, in most states, truth is an absolute defense. 28 In a substantial
minority of states, truth does not bar recovery if the defendant did not

 

23 Schaffer v. Zekman, 196 111. App. 3d 727, 733, 554 988, 992 (1990); Keeton,
Prosser and Keeton on the Law of Torts, 1 12, at 794-795 (5th ed. 1984).

2? Sack, Libel, Slander, and Related Problems, 3.3.5.1, at 502 nn.87-89 (2d ed.
1994).

25 Id., 9.1, at 535-536; Keeton, Prosser and Keeton on the Law of Torts, 116A, at
845-846 (5th ed. 1984).

26 See 2.03[5] in?a.
27 See Restatement (SeconaD of Torts, 581A, comment (1977).

28 Id., 581A, comment a. See, Ohio Rev. Code Ann. 2739.02 (?In an action for
a libel or a slander, the defendant may allege and prove the truth of the matter charged as
defamatory. Proof of the truth thereof shall be a complete defense?).

2- 13 DEFANIATION 2.02 

publish the statement with ?good motives? and ?for justi?able ends.? 29
Truth. The ?literal? truth or falsity of a statement is
not determinative. What matters is whether the allegedly defamatory
statement is ?substantially true.? Minor inaccuracies do not make a state-
ment ?false? so long as the ?gist? or ?sting? of the statement is in fact
true. The test is often described as whether the alleged defamation as pub-
lished ?would have a different effect on the mind of the reader from that
which the [literal] truth would have produced.? 30 Thus, the statement
?Mary was arrested on criminal charges,? when in fact she was charged
with ?juvenile delinquency,? is literally false but substantially true. 31

[iz]?Implication and Insirluation. Just as statements that are ?liter-
ally? false may be deemed substantially true, statements that are ?liter?
ally? true may be deemed ?false? if they imply or insinuate facts that are
false and defamatory. 3?2 When the statement is literally true, some states
permit liability to be imposed for a false and defamatory implication only

 

29 Sack, Libel, Slander, and Related Problems, 3.3.2.1, at 176 n. 18 (2d ed. 1994).
Any quali?cation on truth as a defense violates the First Amendment in most contexts,
although the issue is still open for defamatory speech that is not about public ?gures or
public 'concems. Compare Garrison v. Louisiana, 379 U.S. 64, 74, 85 209, 13
L.Ed.2d 125 (1964) (truth may not be sanctioned ?where the discussion of public affairs is
concerned?, with Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490, 95 1029, 43
L.Ed.2d 328 (1975) (Court has ?carefully left open the question whether? First Amend-
ment requires truth as a defense in defamation actions brought by private persons) and
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 1558, 89 L.Ed.2d
783 (1986) (private-?gure plaintiff must prove falsity where speech is of ?public con-
cern?). See 2.02[2] and infra.

3? Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 2419, 115
L.Ed.2d 447 (1991), quoting Sack, Libel, Slander, and Related Problems, 138 (1980).

3? See Piracci v. Hearst Corp., 263 F. Supp. 511 (D. Md. 1966), a??d 371 F.2d 1016
(4th Cir. 1967). But see, St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d
Cir. 1994) (statement that a person was under ?criminal investigation? was not substan-
tially true where the person was actually under an ?administrative investigation?).

32 See, e.g:

Ninth Circuit: Church of Scientology v. 744 F.2d 694, 696 (9th Cir. 1984).

District of Columbia Circuit: Southern Air Transport, Inc. v. American Broadcasting
Cos, 877 F.2d 1010, 1012 (DC. Cir. 1989) (?The applicable law holds that a defama-
tory inference may be derived from a factually accurate news report?).

State Courts:

Tennessee: Memphis Publishing Co. v. Nichols, 569 412, 420 (Tenn. 1978).

See generally, Dienes and Levine, ?Implied Libel, Defamatory Meaning, and State of
Mind: The Promise of New York Times Co. v. Sullivan,? 78 Iowa L. Rev. 237 (1993).

 2.02 INTERNET AND ONLINE LAW 2-14

if there is ?additional, af?rmative evidence suggesting that the defendant
intend[ed] or endorse[d] the defamatory inference.? 33

[bl?Privilege.

[i]??Absolute Privilege. An absolute privilege is a total immunity
from defamation liability. The common law grants an absolute privilege
to public of?cials, including judicial officers, legislators, and executive
of?cers, for statements made in the course of their duties, and to partici-
pants in proceedings conducted by such of?cials for statements made dur-
ing the course of those proceedings. 34

[ii]?Conditional Privilege. The strict liability at common law arises
from the presumption of the defendant?s ?implied malice? in making a
defamatory statement about the plaintiff. The defendant can rebut this
presumption by proving that on the occasion on which he made the state-
ment, be either had a duty to make it or a legitimate interest that was
served or protected by making it. The occasions giving rise to such duties
or interests are referred to as ?privileged.? 35 The privileges are character-
ized as ?conditional? or ?quali?ed? because they are lost if the plaintiff
can prove that the defendant ?abused? them.

Occasions on which a speaker makes a defamatory statement for
which the common law recognizes a conditional privilege include those
on which the statement is made to protect the speaker?s own interest 
to defend oneself in response to a charge of improper conduct 36), to pro-
tect the interest of the recipient or some other third party reports by
credit agencies and better business bureaus 37), to enable the recipient to
act in the public interest reports of suspected criminal activity to the

 

33 White v. Fraternal Order of Police, 909 F.2d 512, 518 (DC. Cir. 1990).

34 See: Restatement (Second) ofTorts, 585-592A (1977); Sack, Libel, Slander, and
Related Problems, 7.2 (2d ed. 1994).

35 See Hahn v. Kotten, 43 Ohio St. 2d 237, 246, 331 713 (1975) (?All that is
necessary to entitle such communications to be regarded as privileged is, that the rela-
tion of the parties should be such as to afford reasonable ground for supposing an inno-
cent motive for giving information, and to deprive the act of an appearance of of?cious
intermeddling with the affairs of others?). See also: Bauer v. State of Minnesota, 511
447, 449 (Minn. 1994); Restatement (Second) of Torts, Chapter 25, Topic 3, Con-
ditional Privileges, Scope N., at 258 (1977).

36 See, v. Chesley, 193 Misc. 829, 35 431 (1948) (press con-
ference by discharged of?cial to rebut alleged reasons for discharge). See Restatement
(Second) of Torts, 594, comment (1977).

37 See, Sunward Corp. v. Dun Bradstreet, Inc., 811 F.2d 511 (10th Cir. 1987);
Restatement (Second) of Torts, 595, comment (1977).

2-15 DEFAMATION 2.02 
police 38), and to share information about which the speaker and recipients
have a common interest. The ?common interest? privilege re?ects the
common law?s judgment that members of a group are entitled to commu-
nicate with one another about matters concerning the group. 39 Thus, the
privilege protects partners, employees, and members of religious, frater-
nal, professional and charitable organizations, when they inform one
another about matters relating to the group. 40

A common law conditional privilege is lost if the defendant abuses it,
which is established by proof (1) that the publication of the statement
exceeded the scope of the privilege, or (2) that the defendant had an
improper motive. 41 Under the traditional common law, any motive out-
side the purposes of the privilege can cause the defendant to forfeit the

 

38 See, Cashen v. Spann, 125 N.J. Super. 386, 311 A.2d 192 (1973), modi?ed 66
N.J. 541, 334 A.2d 8, cert. denied 423 US. 829 (1975). See Restatement (Second) of
Torts, 598 (1977).

39 Restatement (Second) ofTorts, 596, comment 0 (1977) (The privilege ?is based on
the fact that one is entitled to learn from his associates what is being done in a matter in
which he has an interest in common with them. This interest in their common affairs enti-
tles him to information as to how they are conducted, . . . even though he is not personally
concerned with the information?).

40 See, e.g:

Fourth Circuit: Molever v. Levenson, 539 F.2d 996 (4th Cir.), cert. denied 429 US.
1024 (1976) (shareholders have a quali?ed privilege to defame president and directors).

State Courts:

Kansas: Scarpelli v. Jones, 229 Kan. 210, 626 P.2d 785 (1981) (medical students and
administration had common interest regarding faculty).

Ohio: Mosley v. Evans, 90 Ohio App. 3d 633, 636-637, 630 75 (1993) (church
members privileged to circulate defamatory letter about pastor to members of entire con-
gregation).

See: Sack, Libel, Slander, and Related Problems, 7.3.4, at 458 (2d ed. 1994); Restate-
ment (Second) of Torts, 596 (1977).

4' Under the traditional common law in the majority of states, a conditional privi-
lege was also ?abused? if the defendant did not have ?reasonable grounds? to believe in
the truth of his statement. See Restatement of Torts, 601 (1938). In light of the
Supreme Court?s ruling in Gertz v. Robert Welch, Inc., 418 US. 323, 94 2997, 41
L.Ed.2d 789 (1974), requiring a plaintiff to prove the defendant?s ?fault? as an element of
her case, see {5 in?a, most courts and commentators have concluded that mere
negligence by the defendant is no longer suf?cient to defeat a conditional privilege; other-
wise, any prtmafacie defamation case under Gertz would automatically defeat any condi-
tional privilege defense. See: Jacron Sales Co. v. Sindorf, 276 Md. 580, 597-600, 350
A.2d 688, 698-700 (1976); Sack, Libel, Slander, and Related Problems, at
475-476 (2d ed. 1994); Restatement (Second) of Torts, comment 1 and 599,
comment (1977).

 2.02[3] INTERNET AND ONLINE LAW 2-16

privilege. ?2 Proof of ?common law malice,? such as hatred, ill will, or
revenge, is a common form of improper motive recognized by the courts.
In many states, proof of ?common law malice? is still suf?cient to defeat
a quali?ed privilege. 43 In some states, however, the rule has been super-
seded by a requirement of clear and convincing proof of ?actual mal-
ice??in the sense required by the First Amendment in cases brought by
publiq4?gures?to defeat the existence of a common law quali?ed privi-
lege.

[3]?First Amendment Modi?cations of State
Defamation Law

[a]?Fault

[i]??Public O?icials and Public Figures. In New York Times v. Sulli-
van, 45 the Supreme Court held for the ?rst time that the First Amend?
ment, as applied to the states through the Fourteenth Amendment,
imposes constitutional limits on state defamation law. The Court held that
the First Amendment ?prohibits a public of?cial from recovering dam-
ages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ?actual malice,?? which the
Court de?ned as, ?with knowledge that it was false or with reckless disre-
gard of whether it was false or not.? 46

The Supreme Court later re?ned its de?nition of the ?actual malice?
standard, holding that ?reckless disregard? of whether a defamatory state-
ment is false requires proof ?that the defendant in fact entertained serious

 

42 See Kennedy v. Children?s Service Society of Wisconsin, 17 F.3d 980, 985 (7th
Cir. 1994) (Wisconsin law) (privilege abused if ?the defamatory matter is published for
a purpose other than that for which the privilege is given?). Accord, Restatement (Sec-
ond) of Torts, 603 (1977).

43 See, 

New York: Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993), apply-
ing New York law.

California: Lundquist v. Reusser, 7 Cal. 4th 1193, 1204, 31 Cal. Rptr. 2d 776, 875
P.2d 1279, 1285 (1994).

See Sack, Libel, Slander, and Related Problems, 7.4.1, at 468-470 (Zded. 1994).

44 See:

Colorado: Dominguez v. Babcock, 727 P.2d 362 (Col. 1986).

Maryland: Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1978).

Ohio: Jacobs v. Frank, 60 Ohio St. 36 111, 116, 573 609 (1991).

45 New York Times Co. v. Sullivan, 376 ms. 254, 279-280, 84 710, 11 L.Ed.2d
686 (1964).

2-17 DEFAMATION 2.02m

doubts as to the truth of his publication? 47 or, alternatively, that he pub-
lished the statement ?with high degree of awareness of [its] probable
falsity.? 48 This standard differs substantially from the common law?s
?improper motive? standard. ?Evidence of hatred, spite, vengefulness, or
deliberate intention to harm can never, standing alone, warrant? a ?nding
of actual malice, because ?the focus of the inquiry is not on the defen-
dant?s attitude toward the plaintiff, but rather on the defendant?s attitude
toward the truth or falsity of the statement alleged to be defamatory.? 49
The Supreme Court has stated that the scope of the term ?public of?-
cial? is broad, applying ?at the very least to those among the hierarchy of
government employees who have, or appear to the public to have, sub-
stantial responsibility for or control over the conduct of governmental
affairs.? 50 The New York Times ?actual malice.? requirement was later
extended by the Court to defamation actions brought by ?public 
ures.? 5] The Court has stated that ?public ?gures? are, ?for the most

 

46 Id, 376 U.S. at 279-280. The Court further held that ?actual malice? must be proven
with ?convincing clarity,? and that a ?nding of actual malice is subject to ?an independent
examination of the whole recor by the trial and appellate courts. Id, 376 U.S. at
285-286. See: Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109
2678, 105 L.Ed.2d 562 (1989); Bose Corp. V. Consumers Union of the U.S., Inc.,
466 US. 485, 104 1949, 80 L.Ed.2d 502 (1984).

47 St. Amant v. Thompson, 390 U.S. 727, 731, 88 1323, 20 L.Ed.2d 262 (1968).
48 Garrison v. Louisiana, 379 U.S. 64, 74, 85 209, 13 L.Ed.2d 125 (1964).

49 Varanese v. Gall, 35 Ohio St. 3d 78, 79-80, 518 1177 (1988). (Emphasis by
the court.) See also, 

Supreme Court: Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 
2419, 115 L.Ed.2d 447 (1991) (emphasizing difference between common law malice and
?actual malice,? an ?unfortunate? phrase that the Court uses ?as a shorthand to describe
First Amendment protections? under New York Times).

Second Circuit: Reliance Insurance Co. v. Barron?s, 442 F. Supp. 1341, 1349-1350
(S.D.N.Y. 1977) (?In the context of a libel suit ?actual malice? simply does not mean
ill-will or spite? and ?reckless? disregard of falsity ?does not mean grossly negligent, its
common use, but rather, intentional disregard. When the Supreme Court uses a word, it
means what the Court wants it to mean. ?Actual malice? is now a term of art having noth-
ing to do with actual malice?).

See generally, Sack, Libel, Slander, and Related Problems, 5.5, at 277-306 (2d ed.
1994). .

50 Rosenblatt v. Baer, 383 U.S.. 75, 85, 86 669, ?15 L.Ed.2d 597 (1966) (?nding
public recreation area supervisor to be public ?gure). (Footnote omitted.)

5' See: Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6, 90 
1537, 26 L.Ed.2d 6 (1970); Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164, 87

1975, 18 L. Ed.2d 1094 (1967) (Warren, C.J. concurring); id, 388 U.S. at 172-174
(Brennan, ., concurring).

 2-0213] INTERNET AND ONLINE LAW 2-18

part,? those who ?occupy positions of such persuasive power and in?u-
ence that they are deemed public ?gures for all purposes? and, ?more
commonly,? those who ?have thrust themselves to the forefront of partic?
ular public controversies in order to in?uence the resolution of the issues
involved. 52

Plainti?fs'. In a defamation action brought by a
private individual, as opposed to a public ?gure or public of?cial, the
First Amendment now prohibits?at least in media cases about matters of
public concem?the strict liability imposed by the common law?s pre-
sumption of ?implied malice,? although it does not require proof of New
York Times ?actual malice? as a prerequisite to liability. In Gertz v. Rob-
ert Welch, Inc, 53 the Court held that, so long as they do not impose liabil-
ity without fault, the states may de?ne for themselves the appropriate
standard of liability for a publisher or 5broadcaster of a defamatory false?
hood Injurious to a private individual.5

Most states have responded to Gertz by adopting a ?negligence? stan-
dard, which requires a private? ??gure plaintiff to prove that the defendant
knew, or in the exercise of reasonable care should have known, that the
statement was false in some material respect. 55 A few states have adopted
variations of the ?actual malice? standard for private-?gure defamation
actions based on statements about matters of public concern. 56

 

52 Gertz v. Robert Welch, Inc., 413 U.S. 323, 345, 94 2997, 41 L.Ed.2d 739
(1974).

53 Id.

54 1d., 418 U.S. at 347. The Court implied in a later decision that the First Amend-
ment?s prohibition of ?liability without fault? might not apply in actions brought by pri?
vate ?gures for defamatory speech about matters of purely private concern. See
in?a.

55 Sack, Libel. Slander, and Related Problems, 5.9.1, at 343 (2d ed. 1994), citing
Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 546 P.2d 81 (1976) and Troman v.
Wood, 62 Ill. 2d 184, 340 292 (1975). See Sack, at 340-342 (listing cases from
thirty-four states adopting the negligence standard in response to Gerrz).

56 See:

Colorado. Walker v. Colorado Springs Sun, Inc., 188 Col. 86, 538 P.2d 450, cert.
denied 423 U. S. 1025 (1975).

Indiana: Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc., 162
Ind App 671, 321 N. E. 2d 580 (1974), cert. denied 424 U. S. 913 (1976).

New Jersey: Sisler v. Gannett Co., 104 NJ. 256, 516 A.2d 1083 (1986).

New York: New York has adopted a ?gross irresponsibility? standard for statements
?arguably within the sphere of legitimate public concern.? Chapadeau v. Utica
Observer-Dispatch, Inc.,_ 38 196, 199, 379 61, 341 569 (1975).

2? 19 DEFAMATION 2.02m

[b]??Falsity. The common law presumption that a defamatory state-
ment is false, requiring the defendant to prove its truth as an af?rmative
defense, is arguably prohibited by the First Amendment requirement that
plaintiffs prove ?actual malice? (public of?cials and public ?gures) or
?fault? (private ?gures). 57 This issue is now moot, at least in defamation
actions against a media defendant for speech on matters of public con-
cern. In Philadelphia Newspapers, Inc. v. Hepps, 58the Supreme Court
con?rmed in dicta that, as a result of its decision in New York Times, a
public-?gure plaintiff must prove falsity. 59 The Court then held that the
First Amendment also prohibits the common law presumption of falsity
when a private-?gure plaintiff ?seeks damages against a media defendant
for speech of public concern.? 60 In such cases, the First Amendment
requires the private-?gure plaintiff to prove that the defendant? s_ defama-
tory statement is false.

[c]?Opinion. Some defamatory comments ?Bob is a terrible
writer?) are not really capable of being proven true or false in a court-
room. At common law, defamatory expressions of opinion were pre-
sumed false and were actionable, unless the comment was protected by a
privilege. 61 In Gertz, the Supreme Court stated in dicta that ?[u]nder the
First Amendment there is no such thing as a false idea? and that we must
depend ?on the competition of other ideas,? rather than on judges and

 

57 Some courts reason that, in order to prove that a defendant had knowledge of a state-
ment?s falsity or probable falsity (?actual malice?) or that he should have known that the
statement was false (negligence), a plaintiff is legally required to prove that the statement
was in fact false. See, Wilson v. Scripps?Howard Broadcasting Co., 642 F.2d 371,
375 (6th Cir.), cert. granted 454 U.S. 962, cert. dismissed 454 U.S. 1130 (1981); Restate-
ment (Second) of Torts, 58013, comment (1977). The view that proof of falsity is legally
required to prove ?fault? under Gertz is implicitly inconsistent with the Court?s majority
opinion in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 1558, 89
L.Ed.2d 783 (1986), which states that proof of fault ?will generally encompass evidence
of? falsity ?as a practical matter? (but, by implication, not as a matter of law) because the
jury is ?more likely to" ?nd fault if it is convinced that the statement is false. 475 U.S. at
778.

53 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 1558, 89 L.Ed.2d
783 (1986).

59 1d., 475 U.S. at 775. Accord, Garrison v. Louisiana,i379 U.S. 64, 7'4, 85 209,
13 L.Ed.2d 125 (1964). But see, Philadelphia Newspapers, N. 58 supra, 475 U.S. at 788
n.10 (1986) (Stevens, 1., dissenting) (expressing View, in an opinion joined by Chief Jus-
tice Burger and Justices Rehnquist and White, ?that public ?gures should not bear the bur-
den of? of proving the falsity of statements made with ?actual malice?).

60 1d., 475 U.S. at 777.

 2.02 INTERNET AND ONLINE LAW 2?20

juries, to correct a pernicious ?opinion.? 62 Seizing on this dicta, state and
lower federal courts developed an extensive body of case law affording
absolute protection under the First Amendment for expressions of opin-
ion. 63 Much of that case law focused on developing standards for distin?
guishing between expressions of ?opinion? (which received absolute
protection) and publications that state or imply defamatory ?facts? about a
plaintiff (which were actionable if false). 64

In Mlkovich v. Lorain Journal Co., 65 the Supreme Court expressly
rejected the notion that the Gertz dicta was intended ?to create a whole-
sale defamation exemption that might be labeled ?opinion.?? 66 Instead,
the Court declared that expressions of opinion are already adequately pro-
tected by the constitutional requirement in Hepps that ?statements on mat-
ters of public concern must be provable as false? and by its earlier
decisions providing First Amendment protection for ?imaginative expres-
sion? or ?rhetorical hyperbole? that cannot reasonably be interpreted as
stating actual facts about a plaintiff. 67

 

6] See Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 110 2695, 111 L.Ed.2d
1 (1990), quoting Restatement (SeconaD of Torts, 566, comment a (1977). The com-
mon law ?fair comment? privilege protects expressions of opinion on matters of public
concern that are based on ?truly stated? or generally known facts, although many courts
have required the comment to be ?fair? and left that determination to the jury. See Sack,
Libel, Slander, and Related Problems, 4.4.6, at 243 (2d ed. 1994), citing Hill, ?Defa-
mation and Privacy under the First Amendment,? 76 Columbia L. Rev. 1205, 1233
(1976). See generally, 

Louisiana: Mashbum v. Collin, 355 So.2d 879 (La. 1977).

New Jersey: Dairy Stores, Inc. v. Sentinel Publishing Co., 104 NJ. 125, 516 A.2d
220 (1986).

62 Gertz v. Robert Weich, Inc., 418 U.S. 323, 339-340, 94 2997, 41 L.Ed.2d 789
(1974).

63 See Sack, Libel, Slander, and Related Problems, at 208-210 (2d ed. 1994)
(compiling cases from every federal circuit and thirty-six states adopting a First Amend?
ment privilege for ?opinion? under Gertz).

64 See, 

Second Circuit: Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219 (2d Cir. 1985).

Eighth Circuit: Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir.), cert. denied
479 U.S. 883 (1986).

District of Columbia Circuit: Ollman v. Evans, 750 F.2d 970 (DC. Cir. 1984) (en
bane), cert. denied 471 U.S. 1127 (1985).

65 Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 2695, 111 L.Ed.2d 1 (1990).
66 1a., 49711.5. at 18.

67 Id, 497 U.S. at 19-20. See: Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108
876, 99 L.Ed.2d 41 (1988); Greenbelt Cooperative Publishing Ass?n v. Bressler, 398
U.S. 6, 90 1537, 26 L.Ed.2d 6 (1970).

2-21 DEFAMATION 2.02[3]

Under Milkovich, any comment that ?does not contain a provably
false factual connotation? is constitutionally protected, assuming that
the plaintiff must prove falsity under Hepps. Whether a statement con-
tains ?factual connotations? about the plaintiff is essentially the same
inquiry that courts developed prior to Milkovich to distinguish
between statements of fact and expressions of opinion.?58 Thus, the
practical signi?cance of Milkovich, if any, may be that the First
Amendment?s protection of ?opinion? is now limited to the unde?ned
scope of Hepps? requirement that plaintiffs prove falsity.

Whether a statement contains or reasonably implies a ?provably
false factual connotation? under Milkovich is often a dif?cult and con?
troversial legal inquiry. The inquiry requires a court to consider both
the speci?c context and language of the challenged statement 
?whether it was ?loose, ?gurative, or hyperbolic language which
would negate the impression that the writer? was stating fact?) and the
broader context in which it was made (including the ??general tenor
of the article?? and the setting and format in which it appears)?1 In
conducting this inquiry, one court has found that statements accusing
a plaintiff of criminal behavior, perjury and dishonesty, which were

?8 Milkovich v. Lorain Journal Co., 497 US. 1, 24, 110 2695, 111 L.Ed.2d
1 (1990) (Brennan, 1., dissenting). See Moldea v. New York Times Co., 22 F.3d 310
(DC. Cir.), cert. denied 115 202 (1994). See generally: Sack, Libel, Slander;
and Related Problems, 4.2.4.2, at 214 (2d ed. 1994) (?most courts considering
opinion since Milkovich have reached the results they likely would have reached
before?); Nowell, ?The ?Opinion? Defense Is Not Dead: a Survey of Cases Decided
under the Milkovich Test,? Communications and the L. 73-89 (Dec. 1993). Some
states continue to apply their pre-Milkovich case law protecting ?opinion? on the basis
of their state constitutions. See:

Massachusetts: Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 .E.2d 1158,
1162 (1993).

New York: Immune A.G. V. Moor-lankowski, 77 235, 566 906,
567 1270, cert. denied 111 S. Ct. 2261 (1991).

Ohio: Vail v. Plain Dealer, 72 Ohio St. 3d 279, 281-282, 649 182 (1995).

Utah: West v. Thompson Newspapers, 872 P.2d 999 (Utah 1994).

?8'1 Agora vs. Axxess, Inc., 2001 US. App. LEXIS 6057 (4th Cir, April 9, 2001)
(upheld trial court dismissal of defamation action concluding defendant?s Web site
rating of plaintiff?s magazine as an unpaid promoter was not actionable because it
constituted an expression of opinion based on disclosed or readily available facts);
Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184 (4thCir. 1998) (quoting Milkovich,
N. 68 supra, 497 US. at 21) (holding that statements in a ?Streetwalker? column in
bi-weekly business magazine, which stated that plaintiff?s stock was overvalued, were
constitutionally protected because ?no fact ?nder could ?reasonably interpret? any of
them as stating or implying ?actual facts??). Compare, Flamrn v. American Ass?n of
University Women, 201 F.3d 144, 150-153 (2d Cir. 2000) (?Considering the ?general
tenor? of the publication?a directory [of attorneys] for referrals put out by a national
professional organization?it would not be unreasonable to think that the description of?
the plaintiff as an ?ambulance chaser? ?conveyed an assertion of fact,? that plaintiff
has engaged in ?the unethical or criminal behavior of solicitation?).

(Rel. 10)

 2.02[3] INTERNET AND ONLINE LAW 2-22

published by a defendant on her personal Web site and in Usenet
newsgroup postings, were less likely to be viewed by readers as asser?
tions of fact because they were ?part of a heated debate concerning a
bitter legal dispute??2 That same court found that accusations made
in a newsgroup posting should be assessed in the broader context of
the defendant?s Web site, which contained articles reporting the
underlying facts on which she based her accusations, because her
newsgroup posting included ?a hyperlink for immediate access to
such articles,? which the court characterized as ?at least as connected
to the news group posting as the back page of a newspaper is con-
nected to the 

[d]?Presumed and Punitive Damages

In Gerrz, the Supreme Court held that the First Amendment pro?
hibits an award of presumed or punitive damages when liability is not
based on a showing of New York Times ?actual malice.? Thus, a pri?
vate??gure plaintiff who establishes the defendant?s fault by proving
negligence, but not ?actual malice,? may recover damages only for
?actual injury.?69 The Court did not limit the term ?actual injury? to
?out?of-pocket loss? special damages), but it did hold that
awards for general damages, such as impairment of reputation,
personal humiliation, and mental anguish, ?must be supported by
competent evidence.?0

[e]?Categories of Defamatory Speech Possibly Unprotected
by the First Amendment

Under current First Amendment doctrine, when a plaintiff sues a
media defendant for a defamatory statement about matters of public

68-2 Nicosia v. De Rooy, 72 F. Supp.2d 1093, 1101 (NB. Cal. 1999). See also id.,
at 1106 (?Moreover, in the context of the heated debate on the Internet, readers are
more likely to understand accusations of lying as ?gurative, hyperbolic expressions?).
See generally, Lidsky, ?Silencing John Doe: Defamation Discourse in Cyberspace,?
49 Duke L. J. 855, 935-939 (Feb. 2000) (arguing that ?the culture? of most online bul-
letin boards ?encourages? participants ?to play fast and loose with facts? and that
anonymous accusations on such boards that a company is a ?scam? and its of?cers
?criminals? probably should not ?betaken any more literally than the statement that?
the company ?is ?a ?ying turd;? ?[v]iewed in this light,? such in?ammatory comments
?seem immature and irresponsible, but not necessarily factua 

Nicosia v. De Rooy, N. 68.2 supra, 72 F. Supp.2d at 1103.

?59 Gertz v. Robert Welch, Inc., 418 US. 323, 349-350, 94 2297, 41 L.Ed.2d
789 (1974). The Court later held that the Gertz restriction on presumed and punitive
damages applies only where the defamatory speech is about matters of public
concern. Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US. 749, 105 
2939, 86 L.Ed.2d 593 (1985). See {2 infra.

7" Gertz, N. 69 supra, 418 US. at 350.

2?221 DEFAMATION 2.02[3]

concern, she must prove both falsity and fault (ranging from negli-
gence to ?actual malice?) and she can recover presumed and punitive
damages only if she proves ?actual malice.? The Supreme Court has
not yet de?ned the full extent to which these First Amendment mod-
i?cations of state defamation law apply to speech about matters not
of ?public concern? and to speech by ?nonmedia? defendants.

[ij?Matters Not of ?Public Concern?

In Dun Bradstreet, Inc. v. Greenmoss Builders, Inc. ,71 a construc?
tion company won a jury verdict for presumed and punitive damages
against a credit reporting agency, which had falsely reported to ?ve of
its subscribers that the company had ?led for bankruptcy. The Supreme
Court held that Gertz?s prohibition of presumed and punitive damages
without proof of ?actual malice? did not apply because the defamatory
statement was not about a matter of public concern. In a plurality opin-
ion joined by Justices Rehnquist and O?Connor, Justice Powell
explained that Gertz, ?[l]ike every other case on which this Court has
found constitutional limits to state defamation laws,? involved speech
?on a matter of undoubted public concern,? and that constitutional
limits were imposed by the Court in those cases because the First
Amendment interest in protecting open discussion about public matters
outweighed the states? interest in providing compensation for injury to
reputation.? He reasoned that the balance of these interests in Gertz
does not apply to ?speech on matters of purely private concern?
because such private speech ?is of less First Amendment concern? and
has ?reduced constitutional Stating that ?the role of the Con-
stitution in regulating state libel law is far more limited when? speech
is on private matters, Justice Powell concluded that the First Amend-
ment permits the award of presumed and punitive damages in such
cases without proof of ?actual malice.?4

Justice Powell did not discuss how theConstitution?s ?far more lim-
ited? role in the context of private speech affects the other First Amend-
ment limitations imposed by the Court on state defamation law. In a

(Text continued on page 2-23)

7? Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US. 749, 105 
2939, 86 L.Ed.2d 593 (1985).

72 1a., 472 vs. at 756-759.

73 1a., 472 US. at 759?761.

7? Id.

(Rel. 10)

2-23 DEFAMATION 2.02 

concurring opinion, however, Justice White concluded that, under the
plurality?s reasoning, ?it must be that the Gertz requirement of some kind
of fault on the part of the defendant is also inapplicable in cases? involv-
ing private speech. 75 Several lower courts also have construed Dun 
Bradstreet as limiting Gertz?s prohibition of liability without fault to
speech of public concern. 76 In Hepps, decided one year after Dun 
Bradstreet, the Court was careful not to address whether the rule requir-
ing plaintiffs to 7prove falsity would apply in defamation actions based on
private speech. 7

 

75 Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 773-774, 105
2939, 86 L.Ed.2d 593 (1985) (White, ., concurring). Justice White and Chief Justice
Burger concurred with the plurality?s limitation of Gertz to matters of public concern,
based on their belief that Gertz should be overruled, id., 472 U.S. at 764 (Burger, C.J.,
concurring), 472 U.S. at 774 (White, J., concurring), even though Justice White ?had
thought Gertz was intended to reach cases that involve any false statements of fact injuri-
ous to reputation . . . whether or not it implicates a matter of public importance.? Id, 472
U.S. at 772. In fact, Gertz contains language indicating that its ?fault? requirement does
apply to speech on private matters. In deciding what standard of liability is constitution-
ally required when the plaintiff is a private ?gure, the Court in Gertz expressly rejected the
alternative approach of requiring proof of New York Times ?actual malice? whenever the
speech was of ?public or general interest??the approach suggested by the plurality in
Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 1811, 29 L.Ed.2d 296 (1971)?in
part because it ?inadequately served? the First Amendment values at stake by allowing the
imposition of ?strict liability? on ?a publisher or broadcaster of a defamatory error which a
court deems unrelated to an issue of public or general interest.? Gertz v. Robert Welch,
Inc., 418 U.S. 323, 346, 94 2997, 41 L.Ed.2d 789 (1974).

76 See:

Fourth Circuit: Muta?s v. Erie Insurance Exchange, 775 F.2d 593 (4th Cir. 1985) (per
curiam).

Fifth Circuit: Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993).

State Courts:

Arizona: Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986).

Maine: Ramirez v. Rogers, 540 A.2d 475 (Me. 1988).

Utah: Cox v. Hatch, 761 P.2d 556 (Utah 1988).

77 The holding in Hepps was expressly limited to defamation cases based on ?speech
of public concern.? Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106
1558, 89 L.Ed.2d 783 (1986) (?When the speech is of exclusively private concern
and the plaintiff is a private ?gure, as in Dun Bradstreet, the constitutional require-
ments do not necessarily force any change in at least some of the features of the
common-law landscape?). Id, 475 U.S. at 775. See Ramirez v. Rogers, 540 A.2d 475
(Me. 1988) (?nding Hepps' requirement that plaintiffs prove falsity inapplicable to pri-
vate speech by nonmedia defendant). See also, N. 29 supra.

 2.02[3] INTERNET AND ONLINE LAW 2-24

Defendants. Proof of fault by a private-?gure plain-
tiff was characterized 1n Gertz as the appropriate standard of liability ?for
a publisher or broadcaster? of defamatory falsehoods. 8The Gertz opin-
ion spoke in terms of the First Amendment interests of the? ?newspaper or
broadcaster,? the ?publisher or broadcaster,? the ?communications
media,? ?the press,? the ?news media,? the ?press and broadcast media,?
or, simply, ?the media.? 79 A few lower courts have construed this lan-
guage as a ?deliberate? choice by the Supreme Court to limit Gertz ?8 con-
stitutional protections to ?media? defendants,8 0although most lower
courts have stated or assumed that Gertz applies to all defendants, not just
the media. 81

The possibility of a media/nonmedia distinction was first expressly
acknowledged by the Court 1n Hutchison v. Proxmire, 82 in which it was
noted that the ?Court had never decided the question? whether ?the New
York Times standard can apply to an individual defendant rather than to a
media defendant.? 83 That comment was curious?while the Court may
not have ?decided? the question, it had repeatedly applied the New York
Times protections to individual defendants, dating back to New York
Times itself, when the Court applied the First Amendment standards
announced in that case to reverse the libel judgment against both the
newspaper defendant and the individual defendants who were allegedly

 

78 Gertz v. Robert Welch, Inc., 418 US. 323, 347, 94 2997, 41 L.Ed.2d 789
(1974)

79 1d,, 418 US. at 332, 337, 340,341,342, 343, 345, 346, 348, 350.

30 Oregon: Wheeler v. Green, 286 Ore. 99, 593 P.2d 777, 784 (1979).

See also:

Iowa. Vinson v. Linn-Mar Community School District, 360 108 (Iowa
1984).

Wisconsin. Denny v. Mertz, 106 Wis. 2d 636, 318 N. W. 2d 141, cert denied 459 U. S.
883 (1982)

81 See, e. Bagley Iowa Beef Processors, Inc., 797 F.2d 632 (81h Cir. 1986), cert.
denied 479 U. S. 1088 (1987). See Sack, Libel, Slander, and Related Problems, 5.9.4.1,
at 353- 54 nn. 592- 610 (2d ed. 1994) and cases cited therein.

32 Hutchison v. Proxmire, 443 US. 111,96 2675, 61 L.Ed.2d 411 (1979).

83 Id, 443 US. at 133-134 n.16.

2-25 DEFAMATION 2.02 
responsible for placing the defamatory advertisement in the newspaper. 84
The issue was served up to the Court in Dun Bradstreet, when the
Vermont Supreme Court denied the credit reporting agency the protec-
tions of Gertz on the ground that Gertz did not apply to nonmedia defen-
dants. 85 While the plurality opinion did not address the lower'court?s
media/nonmedia distinction, relying instead on the distinction between
public and private speech, at least ?ve Justices in that case expressly
endorsed the proposition that, ?in the context of defamation law, the
rights of the institutional media are no greater and no less than those
enjoyed by other individuals or organizations engaged in the same activi-
ties.? 86 Nevertheless, the following year, the Court brought back to life
the potential distinction it has never endorsed, limiting its holding in
Hepps to cases brought against ?media defendants? and expressly refus-
ing to ?consider? whether a private-?gure plaintiff who sues a ?nonmedia
defendant? must prove falsity. 87 

 

84 New York Times v. Sullivan, 376 U.S. 254, 256, 261, 264, 286, 84 710, 11
L.Ed.2d 686 (1964). See also: Garrison v. Louisiana, 379 U.S. 64, 85 209, 13
L.Ed.2d 125 (1964); Henry v. Collins, 380 U.S. 356, 85 992, 13 L.Ed.2d 892
(1965); St. Amant v. Thompson, 390 U.S. 727, 88 1323, 20 L.Ed.2d 262 (1968).
See Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 773 n.4, 105
2939, 86 L.Ed.2d 593 (1985) (White, J., concurring). Thus, notwithstanding Chief
Justice Burger?s footnote in Hutchison, virtually all lower courts have held or assumed
that the New York Times standards apply to ?nonmedia? defendants. See Sack, Libel,
Slander, and Related Problems, 5.6.1, at 311 n.383 (2d ed. 1994), including courts
that construed Gertz to apply only to media defendants. See Wheeler v. Green, 286 Or.
99, 593 P.2d 777 (1979).

85 Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 143 Vt. 66, 461 A.2d 414
(1983), a??d on other grounds 472 U.S. 749 (1985).

86 Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784, 105 
2939, 86 L.Ed.2d 593 (1985) (Brennan, J., joined by Blackmun, Marshall, and Stevens,
.J ., dissenting); id, 472 U.S. at 773 and n.4 (White, ., concurring) (noting that ?[n]one
of our cases affords such a distinction; to the contrary, the Court has rejected it at every
turn?).

37 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 779 n.4, 106 1558,
89 L.Ed.2d 783 (1986) (citing the Hutchison footnote). The Court again asserted the
possibility of a distinction in refusing to consider whether its ruling in _Milkovz'ch
applied to nonmedia defendants. Milkovich v. Lorain Journal Co., 497' U.S. 1, l9 n.6,
110 2695, 111 L.Ed.2d 1 (1990) (citing the Hepps footnote).

 2-03[2] INTERNET AND ONLINE LAW 2-26

2.03 Applying Defamation Law to Online Service Providers
[1]?Overview

An online service provider can transmit a defamatory statement to
others in many different contexts?for example, in a message sent to
every user who logs on to the USPS computers, in material contained in a
database that is viewed or downloaded by a user, in a message posted on a
?bulletin board? generally accessible to all or some of the users, in
a comment made during an online, ?real-time? discussion among users
connected to the OSP, or in a message sent to one or more speci?c
?e-mail? addresses. When the OSP is the author of the statement it trans- 
mits, application of existing defamation law is a rather straightforward
process, although the context in which an OSP transmits a defamatory
statement may affect both its classi?cation as libel or slander 1 and the
extent to which the common law rules must be modi?ed to comply with
First Amendment requirements. 2

When a defamation action is brought against an OSP based on its
transmission of a statement authored by another, application of existing
defamation law to determine the appropriate standard of liability is a more
novel inquiry, and one which is often likely to be substantially affected by
the context in which the OSP transmitted the statement. Moreover, as the
technolOgy continues to evolve, the distinctions among current services
offered by an OSP may blur and new ones may develop. Some commen-
tators suggest that the contexts in which OSPs transmit the statements of
others are so new and unique that application of existing legal principles
is inappropriate and new standards should be developed for OSP defen-
dants. Whether such new standards should or will be developed, how-
ever, is still an open question. 4 In any event, for debate on the need for
new standards to be productive, one must ?rst identify the liability stan-
dards under existing law that courts are likely to apply to an OSP that
transmits third party content. 5

[2]?Libel or Slander?

Whether a defamatory statement transmitted by an OSP is character-
ized as slander (spoken words or transitory gestures) or libel (recorded
words or images) can have substantial practical signi?cance. In most
states, if the statement does not fall within one of the four traditional cate-

 

See 2.03m infra.
2 See 2.03[4] in?a.

2-27 DEFAMATION 2.03m

gories of ?slander per se,? liability for slander is imposed only if the
plaintiff can prove special damages, that is, actual pecuniary loss caused
by the defamatory statement. 6 A plaintiffs inability to prove special dam-
ages can result in an early summary judgment for the defendant, because
the requirement is an element of the cause of action, not simply a limita-

 

3 See, Hardy, ?The Proper Legal Regime for ?Cyberspace,?? 55 U. Pitt. L. Rev.
993, 996-1006, 1044?1048 (1994) (advocating rule of strict liability for Perritt,
?Dispute Resolution in Electronic Network Communities,? 38 Vill. L. Rev. 349, 395-400
(1993) (proposing statute that permits OSP to ?contract? for common carrier immunity
from tort liability); Loundy, ?E-Law: Legal Issues Affecting Computer Information Sys-
tems and System Operator Liability,? 3 Albany L.J. Sci. Tech. 79, 90-91 (1993) (advo-
cating constitutional amendment proposed by Professor Laurence Tribe); Cavazos,
?Computer Bulletin Board Systems and the Right of Reply: Rede?ning Defamation Lia-
bility for a New Technology,? 12 Rev. Lit. 231, 243-247 (1992) (advocating immunity
where OSP provides right of reply); Cutrera, ?Computer Networks, Libel and the First
Amendment,? 11 Computer/L. J. 555, 582-583 (1992) (proposing that liability be deter-
mined by allocation of responsibility between OSP and users in service contract); Note,
?Cubby Inc. v. CompuServe Inc.: Comparing Apples to Oranges: The Need for a New
Media Classi?cation,? 5 Software L. J. 821 (1992); Katsh, ?The First Amendment and
Technological Change: The New Media Have a Message,? 57 Geo. Wash. L. Rev. 1454,
1460 (1989) (detailing how new ?electronic media? will ?exert considerable pressure for
change? on legal standards governing ?ow of information); Charles, ?Computer Bulletin
Boards and Defamation: Who Should Be Liable? Under What Standard?,? 2 J. L. Tech.
121, 146-150 (1987) (proposing federal legislation and possible licensing scheme).

4 See Becker, ?The Liability of Computer Bulletin Board Operators for Defamation
Posted by Others,? 22 Conn. L. Rev. 203, 237 (1989) (stating that there ?is little
chance? the Supreme Court will apply the First Amendment ?in a different way to com-
puter bulletin boards than to more traditional means of disseminating information? and
that the ?spectre of different rules for computer bulletin boards is a chimera?). See also:
Miller, ?New Technology, Old Problem: Determining the First Amendment Status of
Electronic Information Services,? 61 Fordham L. Rev. 1147, 1197-1201 (1993) (advo-
cating application of existing standards based on function performed by Naugh-
ton, ?Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State
Action,? 81 Georgetown LI. 409, 435-440 (1992) (advocating application of traditional
?actual knowledge? standard applied to newsstands and bookstores). See generally,
Cate, ?The First Amendment and National Information Infrastructure,? ?30 Wake Forest
L. Rev. 1 (1995) (rejecting claim that characteristics of the online medium justify new
and different First Amendment standards).

5 See 2.03[3] in?supra.

 2.03[2] INTERNET AND ONLINE LAW. 2-28

tion on recovery. 7 This substantial hurdle is not imposed in most libel
cases, 8 on the theory that written words are more permanent, are capable
of wider circulation, and are the product of greater deliberation by their
author than are spoken words. 9

Most commentators have concluded (or at least assumed) that a defa-
matory statement transmitted in an online communication should be gov-
erned by the law of libel, not slander. 10 To the extent online
communication between two people is achieved through the use of text or
recorded images (digitally recorded in the computer?s memory and dis-
played on a video monitor, rather than on paper), that conclusion appears
sound. When compared to the spoken word, an electronic publication
shares the relative permanence of a publication printed on paper?both
can be read repeatedly, copied and circulated to others, until an af?rma-
tive act is taken to erase the text or image from the medium on which it is
recorded. 11 On a practical level, it also may be reasonable to expect that
some recipients of an electronic communication, with a few simple key-
strokes, will print the electronically communicated text or images onto
paper. 12

The question is more difficult with respect to statements communi-
cated during an online, live discussion, in which the text of each partici-

 

7 Anderson, ?Reputation, Compensation, and Proof,? 25 Wm. Mary L. Rev. 747,
748 (1984). See, 

New York: Liberman v. Gelstein, 80 429, 605 344, 590 857
(1992) (summary judgment).

Ohio: Sullivan v. Tucci, 69 Ohio App. 3d 20, 590 13 (1990) (summary judg-
ment in libel per quod action).

Wisconsin: Bauer v. Murphy, 530 1 (Wis. App. 1995) (summary judgment).

8 Many states make special damages an element of an action for libel per quad, 

where the written statement is defamatory only when considered in light of extrinsic facts
already known to its recipients. See 2.02, N. 5 supra.

9 Spence v. Funk, 396 A.2d 967, 970 (Del. 1978). The Restatement de?nes ?slander?
as ?defamatory matter by spoken words, transitory gestures or by any form of communica-
tion other than? libel. Restatement (Second) of Torts, 568(2) (1977). It de?nes ?libel? as
?defamatory matter by written or printed words, by its embodiment in physical form or by
any other form of communication that has potentially harmful qualities characteristic of
written or printed words,? id. at 568(1), and states that factors to use in distinguishing
libel from slander include the area of dissemination, the deliberate and premeditated char-
acter of the publication and the persistence of the defamation. Id., at 568(3).

10 See, Loundy, ?E-Law: Legal Issues Affecting Computer Information Systems
and System Operator Liability,? 3 Albany L.J. Sci. Tech. 79, 90-91 (1993); Perritt,
?Tort Liability, the First Amendment, and Equal Access to Electronic Networks,? 5 Harv.
J. L. Tech. 65, 97 n.149 (1992).

2?29 DEFAMATION 2.03[2]

pant?s message can be read by users connected to the comput-
er for only a very brief period of time. Arguably, the transitory nature
of such statements is similar to that of a statement written on paper
that is shown to another for only a brief moment and then erased or
destroyed. The publication of that written statement, even if brief and
transitory, would probably be governed by the law of libel. On a more
practical level, however, one might argue persuasively that, even if
they can be read online by a large audience, defamatory statements
made in such ?virtual? discussion rooms are suf?ciently and ?sponta-
neous? to be classi?ed as slander rather than libel, particularly when
the audience is likely to perceive them as being functionally equiva-
lent to spoken words.13 Thus, statements made during transitory
online discussions might be actionable only if the plaintiff can prove
special damages. When it is reasonably foreseeable that the content of

11 An analogy can be made to copyright cases holding that the portion of a computer?s
random access memory that contains the digital information constitutes a ?material object
in which a work is ?xed . . . and from which the work can be perceived, reproduced, or
otherwise communicated . . . with the aid of a machine or device? under Section 101 of
the Copyright Act, 17 U.S.C. 101. Such information is deemed suf?ciently to
constitute a "copy" of the same information on the storage disk from which it was loaded
into the computer's RAM, because it is ?stable enough to be perceived, reproduced, or
otherwise communicated for a period of time of more than transitory duration.? Id See:

Fourth Circuit: Advanced Computer Services of Michigan, Inc. v. MAI Systems
Corp., 845 F. Supp. 356, 362-364 (E.D. Va. 1994).

Ninth Circuit: MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th
Cir. 1993).

12 When a speaker intends or expects his oral statement to be reduced to writing and
republished, and it is then republished in written form, his original oral statement is treat-
ed as libel, not slander. See, Bander v. Metropolitan Life Insurance Co., 313 Mass.
337, 47 595 (1943). See: Keeton, Pmsser and Keeton the Law of Torts. 112, at
786 (5th ed. 1984); Restatement (Second) of Torts 568, comment (1977) (citing exam-
ple of oral statement to reporter that is later published in newspaper). But see: Nazeri v.
Missouri Valley College, 860 303, 307 (M0. 1993) (en banc) (statements to
reporters not subsequently republished in print are slander); Restatement (Second) of
Torts, 577, comment (1977). See also, N. 14 supra (original publisher
liable for foreseeable republications).

?3 See Ward v. Zelikovsky, 136 NJ. 516, 528, 643 A.2d 972, 978 (1994) jury can
generally assume that a measure of thought preceded the words printed in a newspaper or
magazine. In contrast, spoken words often do not evidence that a similar level of delibera?
tion preceded them. This distinction is signi?cant because the apparent deliberation of the
speaker or writer will in?uence how a reasonable audience perceives the speech?). (Citation
omitted.) Cf: Sack, libel, Slander and Related Pmblems, 2.3, at 68 (2d ed 1994)
(describing differing treatments of defamatory television and radio broadcasts, which have
potentially huge audiences); N. 52 infra,

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2?30

the online conference will be republished in a more permanent
context, however, defamatory statements made during the conference
are likely to be treated as libel.?

[Ed?Liability of an OSP for Statements Made by Others

A defendant is not liable for defamation unless he has ?published? a
defamatory statement. In some circumstances, the law imposes liability
on a person who facilitates the dissemination of a defamatory statement,
not because he is assisting in the author?s publication of the statement,
but because his conduct itself constitutes a tortious repetition, or ?repub~
lication,? of the statement??that is, because he too has communicated to
another a defamatory statement about the plaintiff.? Under what

1? See State of Washington v. Townsend, 28 Media L. Rep. (BNA) 1374, 1377
(Wash. Super. Dec. 15, 1999) (state Privacy Act, which bars unauthorized recording of
?private communication? using ?any device,? does not apply to e-mail or instant
messages between computer users because ?it can be presumed that defendant knew
that the intended recipients? ?may retain and/or disseminate? his messages. ?In an age
where millions of e-mails are sent daily, it is unreasonable for a user to expect that a
recipient will not save, transmit and/or copy an e-mail or an ICQ (chat) communica-
tion?). See generally, N. 12 supra. Even if courts eventually treat defamatory online
communications as slander in some contexts, the online communication of defamatory
text or images ?uploaded? onto the sender?s computer from a previously prepared
document would still be treated as a libel. See: Christy v. Stauffer Publications, Inc.,
437 814, 815 (Text 1969) (television broadcast of statement read from prepared
script treated as libel); Restatement (Second) of Torts, 568, comment (1977)
(publication of a libel may be made by reading aloud a defamatory writing).

15 See Restatement (Second) of Torts, and 578, comment (1977).
Accord:

Fourth Circuit: Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997),
cert. denied 524 US. 937 (1998) (?Because the publication of a statement is a
necessary element in a defamation action, only one who publishes can be subject to
this form of tort liability").

State Court:

Georgia: Mullinax v. Miller, 242 Ga. App. 811, 814?815, 531 390, 392-393
(2000) (that defendant merely contributed information or physical resources that
another uses to communicate a libel is insuf?cient; plaintiffs must prove that defendant
?published? the libel, which ?entails the ability to control the libel?).

But see:

State Courts:

Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, cert. denied
117 512 (1996) (while noting that, a plaintiff in a defamation case
must prove that the defendant actually published the defamatory material,? court
found that defendants could also be held liable if they ?procured? the publication, ?in
the sense that they directed publication of the article?).

West Virginia: Cram v. Lightner, 178 W. Va. 765, 773, 364 778, 786(1987)
(?alleged procurers or assistants are not responsible as publishers of libel absent a
showing of their participation or involvement in the publication?).

2-30.1 DEFAMATION 2.03[3]

circumstances, then, will courts treat an OSP as a ?publisher? of defam-
atory content created by a third party and electronically transmitted to
others by the computers?

This inquiry is now largely governed by Section 509 of the Com-
munication Decency Act of 1996, which affords the provider of an
interactive computer service immunity from civil liability for defama-
tory content on its service if that content was provided by a third
party?s?1 The scope of this statutory immunity, however, is open to
interpretation, which in turn calls for a detailed analysis of both the
common law principles that the statute arguably preempts and the case
law applying those principles to OSPs that moved Congress to act.

Prior to the enactment of Section 509 of the CDA, there were few
defamation actions ?led against OSPs based on their transmission of
third party content, and only two reported decisions addressed the
common law standards of liability that should be applied to an OSP
in such cases.? There is, however, an extensive body of case law,

(Text continued on page 2?31)

'5'1 The Communications Decency Act of 1996 (the CDA) was enacted as Title
of the Telecommunications Act of 1996, reprinted in 142 Cong. Rec. H1099-H1102
(daily ed. Jan. 31, 1996). The language of Section 509 of the CDA (to be codified at
47 U.S.C. 230), which creates the immunity for 031?s for defamatory third party
content, and the cases applying that provision, are analyzed in infra.

1? See Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA)
1794 (NY. Sup., May 25, 1995) and Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135
(S.D.N.Y. 1991), discussed in infra. In addition, in a later, post-CDA
decision, Lunney v. Prodigy Services Co., 94 242, 723 539 (1999), cert.
denied 146 L.Bd.2d 776 (2000), the court applied common law liability standards to
af?rm summary judgment for an OSP defendant and, based on that holding, did not
determine whether the CDA afforded Prodigy federal statutory immunity for the state-
ments at issue in that case. Lunney is also discussed in in?a. See also,
Jaisinghani v. Capital Cities/ABC, Inc., 973 F. Supp. 1450 (1997) (libel suit against two
online service providers, Datatimes and Prodigy, based on newspaper article circulated
electronically by Datatimes and summarized by a Prodigy user on a Prodigy message
board, held to be barred by statute of limitations).

(Rel. 8)

2-31 DEFAMATION 2.03 

applying both common law and constitutional principles, for other types
of defendants who facilitate the production and dissemination of defama-
tory statements. Two common principles can be derived from these cases.
First, a person is subject to liability as a ?publisher? only if he communi-
cates a defamatory statement to another. 17 Second, a person communi-
cates that statement to another if, but only if, he is aware of its content at
the time he disseminates it. 18

[a]??Publication? and ?Republishers? at Common Law.

Republishers of Printed Material. ?Publisher? is a term
with multiple personalities. When used in a nonlegal, commercial con-
text, the term ?publisher? has typically referred to those who produce
multiple, identical copies of printed material for sale to the public?that
is, those who publish books, magazines and newspapers. 19 Print publish-
ers often rely on third parties to create content for their publications. Book
publishers reproduce and disseminate the work of independent authors.

 

17 See, Restatement (Second) of Torts, 577(1) (1977) (?Publication of defama?
tory matter is its communication intentionally or by a negligent act to one other than the
person defamed?). (Emphasis added.) Compare MacFadden v. Anthony, 117 
520 (Sup. 1952) (radio broadcast that called listeners? attention to a defamatory magazine
article without repeating any of the defamatory material was ?not a republication or publi-
cation of a libel?), with Restatement (SeconaD of Torts, 581, comment c, illustration 3
(1977) (person who gives his copy of a newspaper to and calls B?s attention to a defam-
atory article in that newspaper is subject to liability for publishing a libel).

?8 Becker, ?The Liability of Computer Bulletin Board Operators for Defamation
Posted by Others,? 22 Conn. L. Rev. 203, 218 (1989) (that ?there is no publication without
knowledge? is ?a thread . . . that runs almost without exception through the whole of defa-
mation law?). See Restatement (Second) of Torts, 581, comment c, illustration 1 (1977)
(person who gives newspaper containing defamatory article to another without having
read the article has not published a libel).

19 See Perritt, ?Tort Liability, the First Amendment, and Equal Access to Electronic
Networks,? 5 Harv. .L. Tech. 65, 68-69 (1992) (detailing functions performed by the
?modern print publisher?). Even more personalities have been added by the development
of an ?electronic publishing? industry. See: United States v. American Telephone and
Telegraph Co., 552 F. Supp. 131, 181 (D.D.C. 1982), a?'d 460 U.S. 1001 (1983) (de?ning
?electronic publishing? to mean ?the provision of any information which a provider or
publisher has, or has caused to be originated, authored, compiled, collected, or edited, or
in which he has a direct or indirect ?nancial or proprietary interest, and which is dissemi-
nated to an unaf?liated person through some electronic means?); Katsh, ?The First
Amendment and Technological Change: The New Media Have a Message,? 57 Geo.Wash.
L. Rev. 1454, 1472-1478 (1989) (detailing how the ?very de?nition of ?publishing?? in the
commercial context is being changed by the electronic communications media).

 2.03 INTERNET AND ONLINE LAW 2-32

Magazines and newspapers reproduce and disseminate content created by
advertisers, syndicated columnists, wire services and readers (letters to
the editor).

Such third party content is initially ?published,? under the law of
libel, when it is communicated to the print publisher. Because of the
nature of the print medium, print publishers necessarily review third party
content during the process of producing the multiple copies of the printed
material they later sell to the public. Thus, a print publisher?s decision to
reproduce and disseminate copies of a defamatory statement authored by
another is always made with knowledge of the statement?s content. 20
Having reproduced and disseminated the defamatory statements with
knowledge of what they say, print publishers are characterized by the
courts as ?republishers? who have ?adopted? the statements as their
own, 21 on the theory that ?tale bearers are as bad as tale makers.? 22 On
this basis, print publishers are usually subject to liability for third party
content as ?primary? republishers?that is, ?as if they had originally pub-
lished? the material. 23

[ii]?Distributors of Printed Material. The common law has long rec-
ognized the rule that ?one who only delivers or transmits defamatory mat-

 

2" See Becker, N. 18 supra, 22 Conn. L. Rev. at 222 n.9l (1989) (observing that
?[e]verything that goes into a book, newspaper or magazine is ?known? to some agent of
the publisher,? but noting that future developments in electronic publishing may change
this practice in some contexts).

2' Liberty Lobby, Inc. v. Dow Jones Co., 838 F.2d 1287, 1298 (DC Cir.), cert.
denied 488 US. 825 (1988) (newspaper republication of syndicated column); Restatement
(Second) of Torts, 578, comment (1977). See N. 12 supra.

22 Barry v. Time, Inc., 584 F. Supp. 1110, 1112 (N.D. Cal. 1984).

23 Keeton, Prosser and Keaton on the Law of Torts, 113, at 803 (5th ed. 1984);
Restatement (Second) of Torts, 578 (1977). See, 

Supreme Court: New York Times, Co. v. Sullivan, 376 US. 254, 84 710, 11
L.Ed.2d 686 (1964) (newspaper subject to liability as republisher of advertisement).

First Circuit: Geiger v. Dell Publishing Co., Inc., 719 F.2d 515, 516 (lst Cir. 1983)
(book publisher subject to liability for republication of author?s work).

State Courts:

Michigan: Hodgins v. Times Herald Co., 169 Mich. App. 245, 425 522 (1988)
(newspaper liable for publishing defamatory letter to the editor).

Oklahoma: Weaver v. Pryor Jeffersonian, 569 P.2d 967, 972 (Okla. 1977) (newspaper
is a ?republisher? of letters to the editor).

2-33 DEFAMATION . 2.03[3]

ter published by a third person is subject to liability if, but only if,
he knows or has reason to know of its defamatory character."24 Such
persons?sometimes referred to as ?secondary publishers or dissemina-
tors??often ?are in the business of making their facilities available to
disseminate? content created by others,"5 but they differ from primary
republishers because they play no active role in the production of the
physical material that they deliver or of the content that they transmit.

Some courts hold that a person who merely delivered defamatory
material without knowing its contents did not ?publish? a libel, while
others suggest he has ?published? a libel but is immune from liability.26
Many of the older decisions required such a person to prove his
ignorance as an af?rmative defense, while most of the more modern
cases have required the plaintiff to allege and prove the defendant?s
knowledge as an element of her claim.? The substantive common law
rule, however, is ?rmly established: liability is not imposed on a person
who merely delivers or transmits defamatory material if that person did
not know and had no reason to know of the material?s defamatory nature
at the time he disseminated it. The rule is applied without exception
to the distributors of books, magazines and newspapers,28 to the
newsstands and stores that sell them,? to the libraries that make them
available to the public,30 and to the people who buy them and later give
them to others.31

24 Restatement (Second) of Torts, 581(1) (1977) (expressly excluding radio and
television broadcasters from the rule). See infra.

25 Keeton, Prosser and Keeton on the Law of Torts, 113, at 803 (5th ed. 1984).

2? Prosser and Keeton describe such persons as ?secondary publishers? apparently
because ?[t]hey are intentionally making the contents available to others.? Keeton,
Prosser and Keeton on the Law of Torts, 113, at 803 (5th ed. 1984). See also, Restate-
ment (Second) of Tom, 578 (1977) (such persons are exceptions to general rule for
?one who repeats or otherwise republishes defamatory matter?). But see, Church of Sci?
entology v. Minnesota Medical Ass?n Foundation, 264 152, 156 (Minn. 1978)
(sending copies of article to others, with no reason to believe that article was false and
defamatory, ?did not constitute publication?).

27 Compare Albi v. Street Smith Publications, Inc., 140 F.2d 310, 313-314 (9th Cir.
1944) (burden on defendant), with Lewis v. Time, Inc, 83 ERD. 455, 463-465 (ED. Cal.
1979), a??d 710 F.2d 549 (9th Cir. 1983) (plaintiff must allege speci?c facts showing defen-
dant?s knowledge of content or duty to investigate in order to state a claim).

28 See, e.g:

Second Circuit: Macaluso v. Mondadori Publishing Co., 527 F. Supp. 1017, 1019
(E.D.N.Y. 1981) (magazine distributor); Lerman v. Chuckleberry Publishing, Inc.,
521 F. Supp. 228, 235-236 (S.D.N.Y. 1981) (magazine distributor).

Fifth Circuit: Sexton v. The American News Go, 133 F. Supp. 591, 593 (ND.
Fla. 1955) (magazine distributor).

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2-34

 

Seventh Circuit: Hartmann v. American News Co., 171 F.2d 581, 583, 585 (7th
Cir. 1948), cert. denied 337 US. 907 (1949) (magazine distributor.)

Ninth Circuit: Lewis v. Time, Inc., 83 ERD. 455, 463-465 (ED. Cal. 1979), a?'d
710 F.2d 549 (9th Cir. 1983) (magazine distributor); Albi v. Street Smith Publications,
Inc., 140 F.2d 310, 313-3 14 (9th Cir. 1944) (magazine distributor).

State Courts:

Michigan: Bowerman v. Detroit Free Press, 287 Mich. 443, 451, 283 NW. 642,
645 (1939) (newspaper distributor).

New York: Balabano?' v. Fossani, 192 Misc. 615. 81 732, 733 (Sup. 1948)
(newspaper distributor).

29 See, e.g:

California: Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 852-857, 200 Cal. Rptr.
674, 679-682 (1984) (adult bookstore selling video with defamatory cover).

South Dakota: Janklow v. Viking Press, 378 875, 881-882 (SD. 1985)
(bookstore).

?homing: Spence v. 647 F. Supp. 1266, 1273-1274 (D. Wyo. 1986) (conve-
nience store selling magazine); Dworkin v. L.F.P., Inc., 647 F. Supp. 1275, 1277 (D.
Wyo. 1986) (same convenience store sued in Spence); Dworkin v. Hustler Magazine,
Inc., 634 F. Supp. 727, 729 (D. Wyo. 1986) (magazine distributor and same convenience
store sued in Spence); Dworkin v. Hustler Magazine, Inc., 611 F. Supp. 781, 785-787
(D. Wyo. 1986) (same convenience store sued in Spence).

3" Keeton, Prosser and Keeton on the Law of Torts, 113, at 803 n.61 (5th ed.
1984) (citing two cases decided in England in 1894 and 1900); Restatement (Second)
of Torts, 581, comment (1977). See Becker, ?The Liability of Computer Bulletin
Board Operators for Defamation Posted by Others,? 22 Conn. L. Rev. 203, 227
(1989) (?no one seems to have sued a library for defamation in this century?).

3? Restatement (Second) ofTorts, 581, comment c, illustrations 1-3 (1977). The rule
has also been applied to those who apparently made photocopies of a defamatory
magazine article and sent the photocopies to others. See:

District of Columbia Circuit: McBride v. Merrell Dow and Pharmaceuticals, Inc.,
613 F. Supp. 1349, 1356-1357 (D.D.C. 1985), a??d in relevant part on other grounds
800 F.2d 1208 (DC. Cir. 1986).

State Courts:

Minnesota: Church of Scientology v. Minnesota Medical Ass?n Foundation, 264
152, 156 (Minn. 1978).

The courts in McBride and Church of Scientology did not expressly discuss whether
there are circumstances in which a person who makes photocopies of a defamatory
article and delivers them to others, rather than simply delivering documents made by
others, would be deemed a ?primary publisher" of the defamatory statements contained
in the photocopies.

2-3 5 DEFAMATION 2.03 

Companies. The Restatement (Second) of arts rule
limiting the liability of distributors includes those who only ?transmit?
defamatory matter, and de?nes the term ?transmits? as referring to both
the delivery of physical material and ?in addition the conveyance of defa-
matory words by methods other than physical delivery, as in the case of a
telegraph company putting through a call.? 32 Characterizing a telegraph
company (or any private wire or ticker-tape service) as a mere distributor,
however, is problematic. Due to the nature of the medium, an agent of the
company must necessarily review, and reproduce, the content of the
sender?s message in order to ?transmit? it as a telegraph. Thus, applying
the basic rule for distributors?no liability for disseminating statements
without knowledge of their defamatory content? protects the company
only from libel per quod actions. 33 Telegraph companies have, in fact,
received effective common law immunity from defamation liability, but
that protection has been afforded by a common law privilege based on
their status as common carriers, not by the rule applied to distributors . 3?4

[iv]?Telephone Companies. There is only one reported case in which
a plaintiff sued a telephone company for transmitting defamatory content

 

32 Restatement (Second) ofTorts, 581, comment (1977).

33 Id, 581 comment (telegraph company that transmits a communication innocent
on its face, in secret code, or in a foreign language is not liable to one defamed by reason
of extrinsic facts known to recipient of message). Several early cases refused to permit
telegraph companies to be held liable for transmitting messages that were not defamatory
on their face. See, 

Kansas: Stockholm v. Western Union Telegraph Co., 10 Kan. App. 580, 63 P. 658
(1901).

Massachusetts: Rogers v. Postal Telegraph Cable Co., 265 Mass. 544, 164 NE. 463
(1929).

Minnesota: Nye v. Western Union Telegraph Co., 104 F. 628 (C.C.D. Minn 1900).

Missouri: Grisham v. Western Union Telegraph Co., 238 M0. 480, I42 S.W. 271
(1911)

34 Restatement (Second) of Torts, 612(2) and comment (1977). See N. 159 infra
and accompanying text. Plaintiffs were successful against telegraph companies in only a
few early cases. See: . . 

Minnesota: Paton v. Great Northwestern Telegraph Co., 141 Minn. 430, 170 NW. 511
(1919); Peterson v. Western Union Tel Co., 65 Minn. 18, 67 NW. 646 (1896).

North Carolina: Parker v. Edwards,_222 N.C. 75, 21 876 (1942) (jury found
defendant acted in bad faith).

 2.03 INTERNET AND ONLINE LAW 2-36

over the phone lines. In Anderson v. New York Telephone Co., 35 a man
used equipment leased from the telephone company to play recorded mes-
sages that defamed the plaintiff. The messages were heard by any person
who called the man?s telephone number, which he urged listeners to do
during his weekly radio broadcasts. The plaintiff sued the telephone com-
pany only after counsel had advised him that injunctive relief against the
man was not permitted by the law, the police had refused to intervene, and
the telephone company, after being noti?ed of the defamatory recordings,
had refused to remove the man?s telephone equipment or disconnect his
service. 36

The New York Court of Appeals unanimously held that the telephone
company had not ?published? the recorded messages transmitted over the
telephone lines. 37 In a dissenting opinion at the Appellate Division later
adopted by the Court of Appeals, the telephone company?s role was dis-
tinguished from that of a telegraph company on the ground that a tele-
phone message is ?communicated directly? by the sender to the recipient
without being communicated ?by or to any person employed by the tele?
phone company.? 38 The opinion concluded that the telephone company?s
role is ?not legally different? from that of any supplier who leases ?com-

 

35 Anderson v. New York Telephone Co., 35 745, 320 647 (1974),
reversing 42 151, 345 740 (1973).

36 Anderson v. New York Telephone Co., 42 151, 162, 345 740, 751
(1973) (Witmer, ., dissenting).

3? Anderson v. New York Telephone Co., 35 745, 746, 320 647 (1974)
(reversing ?on the dissenting opinion? at the Appellate Division, N. 36 supra, and on the
judgment of the trial court). The trial court had directed a verdict for the company on the
grounds that it had not published the recordings and because it had no right to interfere
with a subscriber?s communication unless it was obscene, profane or illegal. The Appel-
late Division had reversed, holding that the company had the legal authority to remove the
man?s recording equipment or terminate his service if it determined that his use of the
company?s ?facilities? was ?improper,? and that liability could be imposed on the com-
pany if the plaintiff could prove that a defamatory falsehood ?was transmitted by the com?
pany? with knowledge or reckless disregard of its falsity. Anderson, N. 36 supra, 345
at 746-747.

33 Anderson, N. 36 supra, 345 at 752 (Witmer, J., dissenting) (?when the
telegraph sender submits a message to agent A who transmits it to agent who delivers it
to the recipient, agent A has communicated the message to agent and agent has com-
municated the message to the addressee?). (Emphasis added.) See also, Anderson, N37
supra, 320 at 649 n.2 (Gabrielli, ., concurring) (?the predicates for liability of the
telegraph company? do not ?apply with respect to the telephone company the employees
of which perform no active or af?rmative function in the preparation or transfer of the
message?).

2-37 DEFAMATION 2.03m 

munication facilities? to a person who uses them to publish a defamatory 
message. In such cases, it was reasoned, the supplier is not a ?publisher,?
even if he is aware of the nature of the message being communicated by
the person using his facilities, because no person employed by the sup-
plier has ?participated in preparing the message, exercised any discretion
or over its communication, or in any way assumed responsibil-
ity.? .
The Restatement applies the same reasoning to exclude from its rule
for distributors ?one who merely makes available to another equipment or
facilities that he may use himself for general communication purposes.? 40
Such suppliers, including telephone companies, are not ?publishers,? even
if they have reason to know their equipment will be used to publish defa-
matory matter. 41 ?Since it is the user of the telephone rather than the tele-
phone company who is treated as transmitting a telephone message, the
company is not subject to liability for a defamatory statement communi-
cated by a customer.? 42 
The analysis applied to telephone companies in Anderson and the
Restatement re?ects the fundamental principle that the mere use of a
defendant?s property to publish a libel does not make the defendant a pub-
lisher; a defendant can ?publish? a statement only if he, or a person for
whom he is legally responsible, communicates the statement to another.

[v]?Messages Posted on Private Property. In Anderson, the defama-
tory messages were recorded on property over which the telephone com-
pany had no direct control. The applicable rule differs when a third party
places a defamatory message on property controlled by the defendant, as

 

39 Anderson v. New York Telephone Co., 42 151, 163, 345 740, 752
(1973) (Witmer, ., dissenting). In what later became the dicta of the Court of Appeals,
Justice Witmer also stated his view that, if the telephone company were deemed to have
published the recordings because of its refusal to terminate the man?s service, the publica-
tions would have been protected by the common law privilege for common carriers, such
as telegraph companies (see N. 159 infra). 1d, 42 at 163-171.

40 Restatement (SeconaD of Torts, 581, comment (1977).

4? See: Anderson v. New York Telephone Co., 35 745, 320 647, 649
(1974) (Gabrielli, ., concurring) (?It could not be said, for example, that even if it
had notice, would be liable were one of its leased typewriters used to publish a libel?);
Becker, ?The Liability of Computer Bulletin Board Operators for Defamations Posted by
Others,? 22 Conn. L. Rev. 203, 219 (1989) other words, IBM is not liable even if it
knowingly sells a typewriter to The National Inquirer?).

42 Restatement (Second) of Torts, 612, comment (1977). Accord, Keeton, Prosser
and Keeton on the Law of Torts, 113, at 804 (5th ed. 1984).

 2.03[3] INTERNET AND ONLINE LAW 2-38

when a sign is posted on a defendant?s porch, building, or interior wall.
Most courts have held that when the defendant (1) has knowledge of the
defamatory matter posted on his property and (2) allows it to remain after
a reasonable opportunity to remove it, he is liable for its ?continued publi?
cation,? on the theory that he has ?adopted? or ?rati?ed? the defamatory
matter and thereby ?republished? it. 43

In a Seventh Circuit case, 44 for example, someone posted a sign on a
wall inside a GM plant that defamed an employee. After the sign was
removed three days later, the same defamatory statement was painted on
the wall and remained there for seven months. The Seventh Circuit held
that person is responsible for statements he makes or adopts? and that
?[f]ailing to remove a libel from your building, after notice and opportu-
nity to do so, is a form of adoption.? 45 The court held that, although man-
agement ?had to be aware of the sign,? a reasonable person could not
infer that GM had adopted it because it was removed within three days. 46
As to the painted message that remained for seven months, however, the
court held that a jury could conclude that GM ??intentionally and unrea-
sonably7fail[ed] to remove? this sign and thereby published its con-
tents.?

 

43 Hellar v. Bianco, 111 Cal. App. 2d 424, 244 P.2d 757, 759 (1952) (where defama-
tory words were written on wall of men?s room, it was question for jury whether bar-
tender?s failure to remove the graf?ti on the same evening on which he was informed of it
by plaintiffs angry husband constituted a ?republication? by owners of the bar). Accord:

Alabama: Tidmore v. Mills, 33 Ala. App. 243, 32 So 2d 769 (1947) (jury could ?nd rat-
i?cation from defendant?s failure to remove defamatory sign on defendant?s property).

Massachusetts: Fogg v. Boston Lowell R.R., 148 Mass. 513, 20 N.E.109 (1889)
(where defamatory article remained on bulletin board at railroad station for forty days,
jury could ?presume? that railroad had rati?ed it).

Minnesota: Woodling v. Knickerbocker, 31 Minn. 268, 17 NW. 387, 388 (1883) (fail-
ure to remove sign on table outside defendant?s shop).

Restatement (Second) of Torts, 577(2) (1977).

4? Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1937).
45 Id, 836 F.2d at 1046.

46 Id, 836 F.2d at 1047 sign posted on one day, seen and ordered removed the
next, and down on the third day plainly is the work of a prankster rather than General
Motors Corporation. A large bureaucracy takes time to remove a sign?).

47 1d, 836 F.2d at 1047, quoting Restatement (Second) of Torts, 577(2) (1977).
(Brackets by the court.) At the subsequent trial, the jury found that the message was defa-
matory based on extrinsic facts known to GM and its employees at the plant, that GM had
?intentionally and unreasonably failed to remove that sign (thereby and
awarded the plaintiff $100,000. The Seventh Circuit reversed the award because the plain-
tiff had not proven special damages (see N. 5 supra). Tacket v. Delco
Remy Division of General Motors Corp., 937 F.2d 1201, 1203 (7th Cir. 1991).

2-39 DEFAMATION 2.03 

The liability standard for a property owner differs from that applied to
a distributor. The latter arguably is liable as a ?publisher? of material any-
time he knows the defamatory nature of the material he delivers. A prop-
erty owner is a ?publisher? only if his knowing failure to remove material
is deemed ?unreasonable.? The difference re?ects the more af?rmative
nature of the distributor?s conduct. A bookseller?s shelves can display a
defamatory book, but his liability arises primarily from the af?rmative act
of selling the book to a customer, not from failing to remove it from the
shelves. 8

Courts differ as to how one should determine the point at which a
defendant?s ?failure to remove? defamatory material from his property
becomes unreasonable. 49 And one court has held that a mere failure to
remove a defamatory message, by itself, cannot constitute a publication;
there must be some af?rmative act, such as inviting others onto his prop-
erty with knowledge that they will see the message, to subject a defendant
to liability as a ?publisher? of that message. 50 But all courts have agreed
on the fundamental principle that a property owner can be subject to lia-
bility for publishing a defamatory message only if he knows that the mes-

 

48 Compare Tacket v. General Motors Corp, 836 F.2d 1042, 1047 (7th Cir. 1937)
(sign removed from plant wall within three days not ?published? by GM), with Spence v.
647 F. Supp. 1266, 1274 (D. Wyo. 1986) (convenience store potentially liable for
publishing defamation in magazine when it ?continued to sell? the issue for two days after
store employee ?rst received notice of its defamatory content).

49 In Tacket, the court described the question as whether a reasonable person could
?infer adoption from the presence of the statement,? disagreeing with the suggestion in
Heller v. Bianco that a bar owner could be liable for graf?ti that remained on a bath?
room wall for only ?a single hour? after he received notice of it. Tacket v. General
Motors Corp., 836 F.2d 1042, 1046-1047 (7th Cir. 1987) (?The common law of wash-
rooms is otherwise, given the steep discount that readers apply to such statements and
the high cost of hourly repaintings of bathroom stalls.? The inference of adoption ?may
be unreasonable for a bathroom wall or the interior of a subway car in New York City
but appropriate for the interior walls of a manufacturing plant, over which supervisory
personnel exercise greater supervision and control . (because employees may
attribute statements to their employer more readily than patrons attribute graffiti to bar-
keeps)?).

50 Scott v. Hull, 22 Ohio App. 2d 141, 142-145, 259 160 (1970) (building
owner?s failure to remove graf?ti from outside wall did not constitute ?publication?
because owner took no ?positive act? that communicated message to viewing public).

 2.03m INTERNET AND ONLINE LAW 2?40
sage is being exhibited on his property. 5?

[vi]?Radio and Television Broadcasters. The common law of defa-
mation has had a rough time coming to grips with the broadcast
medium. 52 The most dif?cult conceptual problem for the courts has been
determining liability standards for a broadcaster who transmits third party
content. Although muted to some extent by state statutory provisions 53
and by the constitutional requirements of fault in New York Times and
Gertz, the problem persists, and it portends some of the conceptual dif??
culties that courts might have with OSPs and online communications.

[A]?Scripted or Pre-Recorded Third Party Content. When a broad
caster permits a third party to read from a script, or when he airs
pre-recorded material, he often has the opportunity to review the material
before it is aired. Whether he uses that opportunity or not, his role is much
the same as the role of a distributor, who often disseminates material
without reviewing its content. Thus, a broadcaster arguably should not be
liable for ?publishing? such material unless he knows or has reason to
know of its defamatory character at the time he transmits it. 54

 

5] See Heller v. Bianco, 244 P.2d 111 Cal. App. 2d 424, 759, 244 P.2d 757 (1952)
(?People-who invite the public to their premises owe a duty to others not to knowingly per-
mit their walls to be occupied with defamatory matter?). (Emphasis added.) See Restate-
ment (Second) of Torts, 577, comment (1977) (duty to remove ?arises only when the
defendant knows that the defamatory matter is being exhibited on his land or chattels, and
he is under no duty to police them or to make inquiry as to whether such use is being
made?).

52 There is still no consensus as to whether defamatory broadcasts should be deemed
slander, libel, or some new category ?defamacast?). See: American
Broadcasting-Paramount Theatres, Inc. Simpson, 106 Ga. App. 230, 126 873
(1962); Annot, ?Defamation by Radio or Television,? 50 1311 3?5, at
1325-1329.

53 See, 

Mississippi: Miss. Code Ann. ?95-1-3(1) (1993) (no liability for third party state-
ments).

New Hampshire: NH. Rev. Stat. Ann. (1994) (no liability for uncontrolled
network broadcasts).

Utah: Utah Code Ann. 45-2-5 (1994) (no liability for ?having made its broadcasting
facilities or network available to any person? without proof of actual malice).

54 If the broadcaster is compelled by 47 U.S.C. ?315(a) to transmit the speech of a
candidate for public of?ce, and thus has ?no power of censorship over the material,? id.,
he is immune from defamation liability even if he has advance knowledge of the defama-
tory character of its content. Farmers Educational and Cooperative Union of America v.
WDAY, Inc., 360 US. 525, 531-534, 79 1302, 3 L.Ed.2d 1407 (1959).

2?41 DEFAMATION 2.03[3]

The case law regarding the broadcast of scripted or pre-recorded third
party content is sparse and split.55 In Auvil v. CBS "60 Minutes, 5? the
court applied the rule for secondary publishers to broadcasters who aired
a pre?recorded program that discussed a chemical used to grow apples.
Apple growers had sued the program?s producer, CBS, and three local
CBS af?liates that aired the program. The af?liates were aware of
the program?s subject matter, but not its defamatory content, prior to
airtime.? They had the ability and contractual right to screen and
?censor? network programming, and occasionally had done so for other
programs believed ?unsuitable for local consumption,? but did not
exercise such ?editorial control? over this particular broadcast.58 The
court rejected the argument that the af?liates? power and opportunity to
censor ?triggered the duty to censor? and instead held that they were
subject to the same rule applied to secondary publishers?no liability
without reason to know of the material?s defamatory content.59

The Restatement excludes broadcasters who transmit third party
programming from its rule for distributors on the theory that they
?cooperate actively in the publication??30 The Auvil court rejected
such a distinction for a broadcaster who serves as ?a mere conduit?
by ?relaying an unedited feed,? stating that ?there is no logical basis
for imposing a duty of censorship on the visual media which does not

55 Compare Kelly v. Hoffman, 137 NJ. 695, 701-703, 61 A.2d 143, 146-147 (1948)
(broadcaster who rented facilities and had access to ?copies? of lessee?s defamatory
comments prior to airtime was ?a disseminator? and could not be liable for defamatory
broadcast by lessee if he could not have prevented publication by exercise of reasonable
care), with Miles v. Louis Wasmer, Inc., 172 Wash. 466, 20 P.2d 847 (1933) (radio
station strictly liable for defamatory comments read from script by third party lessee,
equating broadcast to a newspaper?s publication of a paid advertisement) and Sorenson
v. Wood, 123 Neb. 348, 243 NW. 82 (1932) (broadcaster strictly liable for defamatory
speech read from an uninspected script by a politician who received air time under
compulsion of federal law (but see N. 54 supra?.

5? Auvil v. CBS ?60 Minutes,? 300 F. Supp. 928 (ED. Wash. 1992).

57 800 F. Supp. at 931-932. The af?liates had received a ?telex communique setting
out in general terms the nature of the subject matter,? which indicated that it be
controversial but contained ?not a hint . . . that the content would be defamatory.?

5" Id., 800 F. Supp. at 931. CBS transmitted the program via satellite to Los
Angeles three hours before the program?s West Coast air time. During that three-hour
period, the network?s West Coast af?liates had ?both the right and the technical
capability to access? the programfld. 

591d, 800 F. Supp. at 931-932.

6" Sec Restatement (Second) of Torts, 581(2) and comment (1977) (a broad-
caster is ?an original and primary publisher and is not subject to? the rule for secondary
publishers because ?by contract [he] permit[s] others to make use of [his] facilities?
and ?cooperate[s] actively in the publication? of material by others, an activity that ?is
similar to that of a newspaper, which . . . by contract agrees to publish matter, such as
advertisements, prepared and controlled by others?).

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2?42

likewise attach to the print chain of distribution.? The truth may lie
somewhere in between. Af?liates who contract with networks to relay
unedited feeds are no more ?active? in the publication process than
are distributors who contract with publishers to sell their books and
magazines. At the same time, the amount of material that broadcast-
ers transmit is inherently limited. A broadcaster typically transmits
only twenty-four hours of programming on one channel each day.
Imposing a general duty to inspect recorded material before airing it
would not create the type of physical impossibility that such a duty
might create for many disseminators of newspapers, magazines and
books. Thus, at least in contexts where pre-transmission review is
practical local commercials), there may be a ?logical basis? to
impose on broadcasters a general ?duty? to inspect content that does
not ?attach to the print chain of distribution.?62

[BJ?Unscripted, ?Live? Third Party Content

The concept of a ?duty to inspect? prior to transmission assumes
there is an opportunity to do so. With a ?live? broadcast of unscripted
material, there is no such opportunity. Here the case law is again split.
Two early cases arrived at opposite conclusions. In one, a live program
in New York was transmitted by telephone to a Missouri radio station,
which broadcasted the program live. The court held the station strictly
liable for a three-second defamatory utterance that it had no way of
knowing would occur and no way of interrupting once it started.? In the

?1 Auvil v. CBS ?60 Minutes,? 800 F. Supp. 928, 931-932 (13.1). Wash. 1992).

62 But see, id, 800 Supp. at 931 (Such a duty ?would force the creation of full
time editorial boards at local stations throughout the country which possess sufficient
knowledge, legal acumen and access to experts to continually monitor incoming
transmissions and exercise on-the-spot discretionary calls or face $75 million dollar [sic]
lawsuits at every turn. That is not realistic . . . . It is dif?cult to imagine a scenario more
chilling on the media?s right of expression and the public?s right to know?).

?3 Coffey v. Midland Broadcasting Co., 8 F. Supp. 889 (WD. Mo. 1934). The court
stated the broadcast was analogous to someone ?surreptitiously? inserting a libelous
remark in a newspaper without the knowledge of the publisher or any of his employees,
for which the court asserted the publisher could not claim absence of negligence as a
defense. Id., 8 F. Supp. at 890, citing Peck v. Tribune Company, 214 US. 185, 189, 29
534, 53 960 (1909). The Peck decision, however, only states the common
law rule that one ?who sees fit to publish manifestly hurtful statements? is strictly liable,
even if he is without fault in not knowing they are false or about the plaintiff. Id, 214
US. at 189. That rule assumes the publisher has knowledge of what he ?sees to
print. See Becker, ?The Liability of Computer Bulletin Board Operators for Defamation
Posted to Others,? 22 Conn. L. Rev. 203, 223 (1989) (?There are simply no reported
cases to establish the contrary where a prankish third party crept into the print shop and
inserted a libel into an otherwise innocuous publication after it was proofread?).

2-42.1 DEFAMATION 2.03[3]

second, the court held that a broadcaster is not liable for ?an interjected
defamatory remark? by a lessee, at least when the broadcaster ?exercised
due care in the selection of the lessee, and, having inspected and edited
the script, had no reason to believe? the remark would be made.?4

The same issue arises today in the context of live ?call-in? shows, in
which concepts of inspecting a script in advance and ?exercising due care
in the selection? of a third party speaker have little relevance.65 Some?

(Text continued on page 2?43)

?4 Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 204, 8 A.2d
302, 312 (1939). Accord, Josephson v. Knickerbocker Broadcasting Co., 179 Misc.
787, 38 985, 986 (Sup. I942). The Summit Hotel court rejected Co?ey?s
newspaper analogy (see N. 91 infra) and stated that the ?closest analogy? is ?the
loudspeaking device installed in public halls, owned, maintained and operated,
very much like the radio, by the owner of the premises. The halls are rented for
public addresses, and may be equipped with outside ampli?ers or loud-speakers,
increasing the size of the audience. The only practical difference here is the num-
ber of persons who hear the remarks.? 336 Pa. at 197, citing Bohlen, ?Fifty Years
of Torts,? 50 Harv. L. Rev. 725, 731 (1937).

6.5 See Denman v. Star Broadcasting Co., 28 Utah 2d 50, 51, 497 P.2d 1378
(1972) (such shows feature ?a two-way gabfest where anonymous persons call
what appears to be a suspiciously deliberate controversial communicaster, whose
forte seems designed to increase the crescendo of debate to a lively repartee some-
times bordering on mutually belligerent rhetoric?).

(Rel. 9)

2-43 DEFAMATION 2.03[3]

times, the broadcaster uses special (and expensive) equipment to create a
seven-second delay before a caller?s words are aired, during which he can
prevent the broadcast of defamatory words by hitting the ?abort? button.
When such equipment is used, the broadcaster arguably ?publishes? a
caller?s defamatory words because he has some knowledge of them
before they are aired. 66 But what if a broadcaster does not use the
seven?second-delay equipment to screen comments by callers?

 

?53 Coffey v. Midland Broadcasting Co., 8 F. Supp. 889 (W.D. Mo. 1934). The court
stated the broadcast was analogous to someone ?surreptitiously? inserting a libelous
remark in a newspaper without the knowledge of the publisher or any of his employees,
for which the court asserted the publisher could not claim absence of negligence as a
defense. Id., 8 F. Supp. at 890, citing Peck v. Tribune Company, 214 U.S. 185, 189, 29
534, 53 960 (1909). The Peck decision, however, only states the common law
rule that one ?who sees ?t to publish manifestly hurtful statements? is strictly liable, even
if he is without fault in not knowing they are false or about the plaintiff. Id, 214 U.S. at
189. That rule assumes the publisher has knowledge of what he ?sees to print. See
Becker, ?The Liability of Computer Bulletin Board Operators for Defamation Posted to
Others,? 22 Conn. L. Rev. 203, 223 (1989) (?There are simply no reported cases to estab-
lish the contrary where a prankish third party crept into the print shop and inserted a libel
into an otherwise innocuous publication after it was proofread?).

64 Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 204, 8 A.2d 302, 312
(1939). Accord, Josephson v. Knickerbocker Broadcasting Co., 179 Misc. 787, 38
985, 986 (Sup. 1942). The Summit Hotel court rejected Co?ey's' newspaper
analogy (see N. 91 in?a) and stated that the ?closest analogy? is ?the loudSpeaking
device installed in public halls, owned, maintained and operated, very much like the
radio, by the owner of the premises. The halls are rented for public addresses, and may
be equipped with outside ampli?ers or loud-speakers, increasing the size of the audi-
ence. The only practical difference here is the number of persons who hear the
remarks.? 336 Pa. at 197, citing Bohlen, ?Fifty Years of Torts,? 50 Harv. L. Rev. 725,
731 (1937).

55 See Denman v. Star Broadcasting Co., 28 Utah 2d 50, 51, 497 P.2d 1378 (1972)
(such shows feature ?a two-way gabfest where anonymous persons call what appears to
be a suspiciously deliberate controversial communicaster, whose forte seems designed
to increase the crescendo of debate to a lively repartee sometimes bordering on mutu-
ally belligerent rhetoric?).

66 See, e. Pacella v. Milford Radio Corp, 18 Mass App. 6, 462 355, 358~361
(1984) (af?rming dismissal of public figure?s action against radio station that did not cen-
sor caller?s defamatory question during seven-second delay, where plaintiff failed to prove
that talk show host acted with ?actual malice? in permitting the question to be aired).
Accord, Denman v. Star Broadcasting Co., 28 Utah 2d 50, 51, 497 P.2d 1378 (1972)
(affirming summary judgment for broadcaster using seven-second delay because he did
not act with actual malice in airing defamatory remarks by ?an unknown male phonoma?
niac?). See also, Weber v. Woods, 31 Ill. App. 3d 122, 334 857 (1975) (television
station not liable for defamatory comment by third party participant on ?talk show?
because ?actual malice? by station not proven; no indication whether program was broad-
casted live or on tape).

 2-03l3] INTERNET AND ONLINE LAW 244

A Louisiana appellate court asserted that the ?publication? of live
remarks by an anonymous caller was ?done by the station,? and held that
the station, which did not use a tape-delay system, published the remarks
with ?reckless disregard? under New York Times because its format
?amounted to an open invitation? to listeners to make defamatory state-
ments, thus placing the station ?in a position fraught with the imminent
danger of broadcasting? defamatory remarks. 67

The ?reckless disregard? standard under New York Times, however,
requires proof that the (publisher had serious doubts about a mattcr?s truth
when he published it. 8 A broadcaster cannot have serious doubts about
the truth of a matter he is transmitting if he has no knowledge of the mat-
ter?s content until after it has been transmitted. Thus, in Adams v. Frontier
Broadcasting C0., 69 in which an anonymous caller?s defamatory remark
was aired live, the court held that it was legally ?impossible? for the
public-?gure plaintiff to establish that the station published the remark
with ?actual malice,? since that standard ?assumes? that a publisher had
the opportunity to evaluate the matter?s content and form some belief
about its truth or falsity before he published it. 70

The Adams court refused to modify the ?reckless disregard? standard
to encompass the station?s failure to use a delay device. The court rea-
soned that such a rule would cause broadcasters, fearing costly litigation,
to ?regularly use? the device to ?edit? and ?censor? callers? comments,
undermining the free and robust public debate that the ?reckless disre-
gard? standard was meant to protect and leading to ?the ultimate extinc-
tion? of ?this kind of public forum.? 71 The court?s reasoning is curious. A
broadcaster cannot know in advance whether a caller?s comment will con-
cern a public ?gure. He cannot selectively use a delay device only for
comments about private ?gures, who are not required to prove ?actual
malice.? Thus, to protect the free and robust debate in ?this kind of public
forum,? the broadcaster must be immune from liability for not using a
delay device in all cases in which defamatory remarks by callers are trans-
mitted live, not just those involving public ?gures. In short, he must not
be subject to liability as a ?publisher? for live third party remarks.

 

67 Snowden v. Pearl River Broadcasting Corp., 251 So.2d 405, 410-411 (La. App.),
application denied 259 La. 885, 253 So.2d 217 (1971).

63 See Ns. 47-49 supra.

69 Adams v. Frontier Broadcasting CO., 555 P.2d 556 (Wyo. 1976).
70 1a., 555 P.2d at 564.

7? 1d, 555 P.2d at 565-567.

2-45 DEFAMATION 2.03 

In this context, then, there may be a theoretical basis to treat a broad-
caster as one who merely ?supplies? the equipment that another uses to
publish defamatory remarks, like the owner of an auditorium equipped
with ampli?ers 72 or a telephone company. 73 The early broadcast cases
balked at such ?theoretical? analogies, however, noting the ?practical?
difference in the size of the audience that broadcasters reach. 74 Even in
Auvil, the court refused to impose on local stations the duty to inspect and
censor. only with respect to network feeds, indicating that its analysis
might have been different for material from a less responsible or unknown
source. 75 The Adams decision stands alone in suggesting that a broad-
caster may not be responsible as the publisher of live remarks by an anon-
ymous third party.

 

72 See N. 64 supra. But see, Coffey v. Midland Broadcasting Co., 8 F. Supp. 889, 890
(W.D. Mo. 1934) (broadcaster is ?certainly not like? one who ?only provides another with
an instrumentality? because the station ?is operated by the owner for another who has
hired him to operate 

73 See Ns. 37-42 supra and accompanying text.

74 Eighth Circuit: Coffey v. Midland Broadcasting Co., 8 F. Supp. 889, 890 (W.D. Mo.
1934) (A telephone company ?carries a message (in a sealed envelope, as it were) from the
sender to a single person.? The broadcaster ?publishes messages to the world. If this dis-
tinction is a practical one rather than theoretical, it is nevertheless a most signi?cant dis-
tinction and quite enough to support an entirely different measure of responsibility?).

State Courts:

Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 197, 8
A.2d 302, 309 (1939) companies are not in [the same] category? as the tele?
phone company because they ?may choose between applicants for the use of their facil-
ities, which are designed, not for private communications from one individual to
another, but for those to the public generally?).

75 The Auvil court held that the local stations were ?republishers? under state law and
applied the rule for ?book sellers? on the premise that state law did not permit liability for
defamation ?without fault.? Auvil v. CBS ?60 Minutes,? 800 F. Supp. 928, 931 (ED.
Wash. 1992). Presumably, the court would have reached the same decision even if it had
characterized the stations as ?primary? republishers who reasonably relied on the reputa-
tion of the authors of the material. See N. 150 infra and accompanying text. The court did
not expressly comment on the reliability of ?60 Minutes? and CBS, but it did acknowledge
their deep pockets. Id, 800 F. Supp. at 932 injured by defamatory material are
not impaired by limiting conduit liability to those situations? where the local broadcaster
has knowledge since the ?generating source, which in a national broadcast will generally
be the deepest of the deep pockets, may still be called upon to defend?).

 2.03 INTERNET AND ONLINE LAW 2-46

[b]?Knowledge of Content and the First Amendment. Outside
the unsettled context of broadcasting, the common premise in cases that
impose liability on republishers is the defendant?s knowledge of the mate-
rial?s defamatory content. Indeed, the one functional distinction between
?primary? and ?secondary? republishers is that the common law presumes
that primary republishers are aware of the third party content contained in
the material they produce and that secondary publishers are unaware of
the content contained in the material they distribute.

[i]?Distributors and "Reason to Know. According to the Restate-
ment, a distributor is subject to liability for republishing defamatory mate-
rial, even if he does not know what it says, if he ?has reason to know of its
defamatory character? when he disseminates it. 76 There is not even one
reported case in which liability was actually imposed on a print distributor
based on a ?reason to know? theory. Nevertheless, courts have discussed
the ?reason to know? concept in this context, and one key principle is dis?
cernible from those discussions.

The mere fact that a person intentionally distributes material that he
knows will be read by others does not give him. ?reason to know? that it
contains defamatory content. A distributor ?is under no duty to examine
the various publications that he offers for sale to ascertain whether they
contain any defamatory items.? 77

This common law rule is compelled by the First Amendment. In
Smith v. California, 78 the Supreme Court held that the First Amendment
prohibited a statute that imposed criminal liability on a bookseller for sell-
ing an obscene book even if he had no knowledge of the book?s contents.
The Court held that such a strict liability standard would cause booksell-
ers to engage in an impermissible level of ?self-censorship,? suppressing
the distribution of constitutionally protected, non-obscene material:

?For if the bookseller is criminally liable without knowledge of the
contents, and the ordinance ?il?lls its purpose, he will tend to restrict
the books he sells to those he has inspected; and . . . the bookseller?s

 

76 Restatement (Second) of Torts, 581(1) (1977).

77 1d, comment (1977). See Bowerman v. Detroit Free Press, 287 Mich. 443,
451-452, 283 NW. 642, 645 (1939) (?In these days of speedy dissemination of news it
seems unreasonable to hold that a local distributor of newspapers should be required to
check the contents of each issue for libelous matter in order to protect himself against lia-
bility for damages?).

78 Smith v. California, 361 US. 147, 80 215, 4 L.Ed.2d 205 (1959).

2-47 DEFAMATION 2.03 

burden would become the public?s burden, for . . . [i]f the contents of
bookshops and periodical stands were restricted to material of which
their proprietors had made an inspection, they might be depleted
indeed. The bookseller?s limitation in the amount of reading material
with which he could familiarize himself, and his timidity in the face
of his absolute criminal liability, thus would tend to restrict the pub-
lic?s access to forms of the printed word which the State could not
constitutionally suppress directly. The bookseller?s self-censorship,
compelled by the State, would be a censorship affecting the whole
public, hardly less virulent for being privately administered. Through
it, the distribution of all books, both obscene and not obscene, would
be impeded.? 79

Smith v. California addressed a distributors?s potential criminal liabil-
ity for distributing obscene matter. The courts have held, however, that
the same First Amendment prohibition of a general duty to inspect con-
tent applies in the context of a distributor?s potential civil liability for dis-
tributing defamatory matter. 80

Other First Amendment limitations on defamation law?the New
York Times ?actual malice? requirement, the Gertz limitation on pre-
sumed and punitive damages, and possibly the requirements that plaintiffs
prove fault (Gertz) and falsity (Hepps)?are limited to speech about pub-
lic ?gures or matters of public concern. 81 Under Smith, however, a dis?
tributor cannot be expected to ascertain the subject matter of each
potentially unlawful statement, passage, or picture contained in the mate-
rial he distributes. Thus, the prohibition in Smith of any general duty to
inspect content must apply to distributors regardless of the subject matter
of the allegedly defamatory material.

 

79 [51,361 U.S. at 153-154. (Footnote omitted.)

80 See Lewis v. Time, Inc., 33 F.R.D. 455, 464 (ED. Cal. 1979), aff?d 710 F.2d 549
(9th Cir. 1983) (applying Smith to libel action against magazine distributor; makes no
difference that here we deal with civil liability, for ?fear of damage awards . . . may be
markedly more inhibiting than the fear of prosecution under a criminal statute?? (quoting
New York Times v. Sullivan, 376 US. at 277) (ellipses by the court)). Dworkin v.
Hustler Magazine, Inc., 611 F. Supp. 781, 786 (D. Wyo. 1985) (applying Smith in libel
action against convenience store selling magazine; avoid such private censorship,
courts have required a speci?c showing of scienter, knowledge of the defamatory material,
before allowing mere distributors to be held liable?).

8? See supra.

 2.03 INTERNET AND ONLINE LAW 2-48

The Supreme Court expressly declined in Smith to decide what
knowledge the First Amendment requires a bookseller to have about a
particular book to be subject to prosecution for possessing obscene mate-
rial and, in particular, ?whether there might be circumstances under which
the State constitutionally might require that a bookseller investigate fur-
ther? the contents of a particular book ?and what such circumstances
might be.? 82 In applying the ?reason to know? concept in defamation
actions, however, courts have discussed three ?special circumstances?
that plaintiffs have argued were suf?cient to ?warn the [distributor] that a
particular publication is defamatory.? 83

The most obvious ?special circumstance? is when the distributor is
noti?ed of the defamatory content by another person (typically the plain?
tiff or her attorney). 84 A second circumstance may be when he reads a
summary or description of the material that would suggest to a reasonable
person that it contains defamatory content. 85 In both circumstances, a dis-

 

Smith v. California, 361 U.S. 147, 154, 80 215, 4 L.Ed.2d 205 (1959). The
Court also refused to decide ?whether honest mistake as to whether [a book?s] contents in
fact constituted obscenity need be an excuse.? Id. The Court later held that a bookseller
can be held criminally liable for distributing obscene material if ?he knew the character
and nature of the materials,? even if he believed them to be not obscene. Hamling v.
United States, 418 U.S. 87, 123-124, 94 2887, 41 L.Ed.2d 590 (1974) (?To require
proof of a defendant?s knowledge of the legal status of the materials would permit the
defendant to avoid prosecution by simply claiming that he had not brushed up on the law.
Such a formulation of the scienter requirement is required neither by [the statute] nor by
the Constitution?).

83 Restatement (Second) ofTorts, 531, comment (1977).

84 See, 

Tenth Circuit: Spence v. 647 F. Supp. 1266, 1273-1274 (D. Wyo. 1986) (conve-
nience store continued to sell magazine for two days a?er plaintiff?s attorney noti?ed store
employee of its defamatory content).

State Courts: -

South Dakota: Janklow v. Viking Press, 378 875, 876 (SD. 1985) (plaintiff
sued bookstore owners and operators who ?willfully refused to remove the book from the
shelves? of their stores ?even though he had noti?ed them of its libelous nature?).

85 See: Auvil v. CBS ?60 Minutes,? 800 F. Supp. 928, 932 (ED. Wash. 1992) (af?li?
ates did not have ?reason to know? that network program would contain defamatory con-
tent, even though they had received an advance ?telex communique setting out in general
terms the nature of the subject matter? of the program, because the telex only suggested
that the program would be ?controversial? and contained ?not a hint . . . that the content
would be defamatory?); Restatement (Second) of arts, 581, comment (1977) (distrib-
utor is not liable ?if there are no facts or circumstances known to him which would suggest
to him, as a reasonable man, that a particular book contains matter which upon inspection,
he would recognize as defamatory?).

2-49 DEFAMATION . 2-0313]

tributor cannot avoid liability for ?republishing? the material by simply
not reading or viewing the speci?c content when he already knows that it
is (or at least is claimed to be) defamatory; rather, such circumstances
?giv[e] rise to a duty to investigate? the material to ascertain whether it in
fac?t?contains defamatory content and, if so, to refrain from distributing
it.

The Restatement suggests a third ?special circumstance? that gives a
distributor ?reason to know? of a matter?s defamatory content: when he
?offers for sale a particular paper or magazine that notoriously persists in
printing scandalous items? or a book by ?a particular author or publisher
[who] has frequently published notoriously sensational or scandalous
books.? 87 No court has expressly endorsed that suggestion, although two
have construed it as referring only to those ?who notoriously use defama-
tory material in their publications.? 88 The suggestion arguably would not
survive First Amendment scrutiny; indeed, one court has rejected it as
?not in our society?s best interests.? 89

 

35 Ninth Circuit: Lewis v. Time, 83 F.R.D. 455, 465 (ED. Cal. 1979), ajfd 710 F.2d
549 (9th Cir. 1983).

Tenth Circuit: Dworkin v. Hustler Magazine, Inc., 634 F. Supp. 727, 729 (D. Wyo.
1986).

State Courts:

Caly?ornia: Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 856, 200 Cal. Rptr. 674, 682
(1984).

Cf Heller v. Bianco, 111 Cal. App. 2d 424, 244 P.2d 757, 759 (1952) (although bar-
tender ?was not told of the exact terminology of the writing? on the bathroom wall in his
bar, he ?was told enough about the defamatory nature of it to put him upon inquiry and to
charge him with the duty of removing? it).

87 Restatement (Second) of Torts, 581, comments and (1977).

83 Dworkin v. Hustler Magazine, Inc., 611 F. Supp. 781, 786 (D. Wyo. 1985). (Empha?
sis by the court.) Accord, Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 856, 200 Cal.
Rptr. 674, 682 (1984). In Osmond, the court held that producers of sexually explicit ?lms
are not necessarily within the category of those ?who notoriously use defamatory mate-
rial? and thus did not decide whether the Restatement 's suggestion of a general duty to
inspect such publications is correct. 153 Cal. App. 3d at 856.

89 Dworkin, N. 88 supra, 611 F. Supp. at 787: (?If that was the proper standard, every
distributor of publications, such as the National Enquirer, or such respected publications
as Time and The New York Times, which have also had their fair share of libel suits, would
have to check each issue, at his peril, for possible libelous statements about people or
events of which the average publication distributor might have no basis for judgment.
Such a standard . . . would foster excessive censorship, and would deprive the public of
reading educational and entertainment materials, all in direct contradiction of right of free-
dom of the press guaranteed by the First Amendment?). Because it implies that all speech
by a particular Speaker is presumed by the law to contain defamatory content, thus impos-
ing a duty to inspect on those who distribute that speaker?s publications, the Restatement ?s
suggested standard would arguably constitute an unconstitutional ?prior restraint? on that
speaker?s speech.

 2.03 INTERNET AND ONLINE LAW 2-50

[ii]?Primary Republishers and ?Reason to Know.? The common
law has typically characterized as primary republishers those who
actively participate in the production of material that contains defamatory
third party content, such as commercial printers and the publishers of
books, newspapers and magazines. 90 This characterization reflects the
assumption that, because of the nature of the production process, those
who actively participate in it will acquire knowledge of the third party
content before the material is disseminated. 91 Substantial cracks in the
factual basis of that assumption are widening as the technology of produc-
ing multiple copies of written material moves into electronic and digital
formats. The question thus arises as to whether or not that assumption is a
rebuttable legal presumption; that is, may a person who produces material
containing defamatory third party content avoid liability for ?republish-
ing? it by proving that he had no knowledge of that content when he dis-
tributed the material to others?

There is a group of extremely old cases holding that the managing
editor of a newspaper is ?equally liable? with the proprietor of the paper
for publishing every matter in each issue, and as such is not allowed to
plead his ignorance of a defamatory matter as a defense, ?on the theory
that the matter is constructively under his supervision.? 92 These cases rea-
soned that a managing editor is liable ?whether he knows of the publica-
tion or not, for it is his business to know, and mere want of knowledge
constitutes no defense.? 93 That reasoning is questionable. The managing
editor, unlike his employer, is not vicariously liable for the conduct and
knowledge of other newspaper employees who knowingly insert into the
newspaper words that are defamatory. 94 In essence, these courts took the
managing editor?s contractual duty (owed to his employer) to supervise
the production of the paper?s content and changed it into a common law
duty (owed to each person discussed in each article) to inspect and evalu-

 

9" See 2.03 supra.

9? See: Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 196, 8 A.2d 302,
309 (1939) (?Newspaper matter is prepared in advance, reviewed by members of various
staffs, set into type, printed, proofread and then ?run off? by employees of the publisher; at
all times opportunity is afforded the owner to prevent the publication of the defamatory
statement up to the time of the delivery of the paper to the news vender [sic]. The defama-
tion thus may be said to be an intentional publication, or at least one published without due
care?); Keeton, Presser and Keaton on the Law of Torts, 113, at 803 (5th ed. 1984)
(?Those who manufacture books by way of printing and selling them, and those who print
and sell newspapers, magazines, journals, and the like, are subject to liability as primary
publishers because they have the opportunity to know the content of the material being
published and should therefore be subject to the same liability rules as are the author and
originator of the written material?).

2-51 DEFAMATION 2.03[3]

ate all matters contained in each edition before it is published. There is
no obvious legal justi?cation for changing the nature and scope of the
managing editor?s duty in this manner. 

A more recent decision indicates that, under the modern common law,
even a person who produces copies of a publication for another is
subject to liability only if he knew or had reason to know that it con-
tained defamatory content. In Maynard v. Port Publications, Inc. ,95 a
newspaper publisher contracted with other publishers to reproduce their
publications using its photo-offset printing machinery. A newspaper that
it reproduced in its capacity as a contract printer contained an article
accompanied by a photograph that imposed the plaintiff?s face on the
nude ?gure of another woman. Because of the nature of photo-offset
printing, the contract printer was able to reproduce the newspaper with-
out acquiring knowledge of its contents. Although it had refused on
two prior occasions to reproduce issues of that newspaper containing
potentially obscene photographs, the contract printer did not inspect the
newspaper?s contents when it reproduced the particular issue that
defamed the plaintiff.

9? Smith v. Utley, 92 Wis. 133. 65 NW. 744, 746 (1896).

Accord.-

Illr?nois: Danville Press Co. v. Harrison, 99 Ill. App. 244 (1901) (?general manager?
of newspaper).

Oklahoma: World Pub. Co. v. Minahan, 70 Okla. 107, 173 P. 815, 817?818 (1918)
(managing editor away on vacation).

Nevin v. Spieckemann, 1 Sadler 400, 4 A. 497 (Pa. 1886) (of?cer
engaged in ?general management? of newspaper).

See also, A.H. Belo Co. v. Fuller, 84 Tex. 450, 452, 19 SW. 616, 617 (1892)
(dicta) (officers of corporate publisher liable only if ?their duties as of?cers? are ?of such
a nature that the law would imply that such of?cer knew or should have known of the
publication of such libelous matter?). (Emphasis added.) Compare Weil v. Nevin, 
Monaghan 65 (Pa. 1889) (refusing to extend Nevin holding regarding ?general man-
age[r]? to an ?assistant editor? of the newspaper, ?for his work is limited?).

?3 Smith v. Utley, 92 Wis. 133, 65 NW. 744. 746 (1896). (Emphasis added.)

9? Two of the cases contained language suggesting that the managing editor was
liable on the dubious theory that the employee who knowingly inserted the defamatory
words into the newspaper was the managing editor?s ?agent.? World Publishing Co. v.
Minahan, 70 Okla. l07, 173 P. 815, 817 (1918), quoting Danville Press Co. v. Harrison,
99 ll]. App. 244 (1901). Contrast Mullinax v. Miller, 242 Ga. App. 811, 815, 531 
390 (2000) (libel suit against chairman of campaign committee for ad issued by com-
mittee) (?Although the doctrine of respondeat superior applies in libel cases, so that a
principal is liable for the libel committed by his employees in the scope of their employ-
ment, plaintiffs essentially seek to hold the agent (Miller) liable for the acts of the prin-
cipal (the campaign committee). We ?nd no support for this theory of liability in logic
or in case (Footnote omitted.)

95 Maynard v. Port Publications, 98 Wis.2d 555, 297 500, 16 1361
(1980).

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2-52

The plaintiff sued the contract printer for publishing the defamatory
photograph and article. The Wisconsin Supreme Court af?rmed the
entry of summary judgment for the defendant, holding that ?a contract
printer having no knowledge of the content of the material it prints
cannot be subject to liability for defamation resulting from such print-
ing.?96 The court noted that, ?in the past,? a printer ?when setting print
had contact with the content of what it printed,? but that the defendant,
using newer photo-offset technology, ?does not need to read the
material or check its content in any way before it is printed.?7 Thus, the
court stated that it was ?appropriate? to ?acknowledge this changing
technology and its effect on the responsibilities and duties of a contract
printer.?98

The court expressly rejected the argument that the printer was
?subject to liability because of its failure to read and investigate
material submitted for publication in order to discover and censor any
potentially defamatory material.?? Instead, the court held that, to be
subject to defamation liability based on his role in the publication
process, a person ?must know or have reason to know of the existence
of the libel.?100 The court refused to impose a common law duty on the
printer to inspect every publication that it reproduced for others:

?Port, like other contract printers, provides a quick and inexpensive
printing service that by its low cost allows access to the print media
by groups that would otherwise not ?nd such access. If liability for
failure to inspect were imposed on printers like Port, they would of
necessity become censors and their services would become more
expensive. Increased costs might preclude the publication of small,
low-budget newspapers. Such potential liability might also deter con-
tract printers from contracting to print material they consider to be
controversial. All of this would have a deleterious effect on the free
dissemination of information which is fundamental to our 

9? 1a, 93 Wis.2d at 556.

9" Id., 98 Wis.2d at 567-568.

9? Id., 98 Wis.2d at 568.

99 Id, 98 Wis.2d at 566-567. The court also held that ?it would be unreasonable to
infer from? the two prior instances when the printer refused to print potentially obscene
photographs that the printer ?exercised editorial control over the content of" the news-
paper. 98 Wisc.2d at 566. The opinion is unclear as to whether the court believed that
the inference was ?unreasonable? only because the printer ?was concerned about vio-
lating obscenity laws? or because it had censored material on only two occasions. 98
Wisc.2d at 564.

1d., 98 Wis.2d at 568.

1a., 98 Wis.2d at 567.

2-53 DEFAMATION 2.03[3]

The court found it ?unnecessary? to decide whether the common
law standard it applied to the printer was compelled by the First
Amendment. Nevertheless, its reasoning mirrored the constitutional
analysis that the Supreme Court applied to the bookseller in Smith v.
Califomia,?2 suggesting that both the modern common law and the
First Amendment require that the producer of material containing
defamatory content have knowledge or reason to know of a publica-
tion?s defamatory nature before he can be subject to liability for that
content.103

Liability for Transmitting Third Party Speech
Without Knowledge of Its Defamatory Content

Because of the nature of online communication, third party content
can be transmitted to an computer and retransmitted from there
to others without any human intervention by the OSP. When online
communication of defamatory material is accomplished using the
computer but without the knowledge of its content, the
OSP can be subject to liability for publishing the defamatory content
only if the OSP had a duty to inspect the material before it was trans-
mitted to others. Whether, and in what circumstances, the courts will
impose on an OSP a common law duty to inspect third party content
will probably depend on the nature of the online service through
which the content is transmitted and the manner in which the OSP
operates that service.

See text accompanying N. 79 supra.

Accord, Musit v. Mooney, 125 Misc.2d 95, 475 233 (Sup. 1984).
in Mush, the contract printer produced printed copies of allegedly defamatory
newspapers created by a third party publisher. Even though the printer inspected
the materials for ?nudity, profanity or vulgarity" to avoid offending its keyboard
operators, and even though the operators presumably become aware of their content
when inputting them on their keyboards, the court found ?no indication that the
printer had any knowledge or any reason to know of the libelous nature? of the news-
papers. 125 Misc.2d at 100. The court held that such knowledge was constitutional-
ly required under Gertz. but disagreed with Part Publications that such knowledge
was required by the traditional common law, which the Musit court characterized as
imposing ?strict liability? on printers. 125 Misc.2d at ?100?101, citing Youmans v.
Smith, 153 NY. 214, 47 NE. 265 (1897). In Youmans, which is the only other report-
ed case in this country in which a contract printer was sued for libel, the owners of
a printing facility claimed ignorance of defamatory material that their foreman had
printed for an attorney during their absence. The court held that the owners were sub-
ject to liability as publishers of the material on the basis of the knowing conduct of
?their agent"?the foreman?who presumably become aware of the content of the
material during the process of printing it for the attorney. 153 NY. at 219.

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2-54

[ij??Real?Time" Discussions and Conferences

Real-time online communication can take many forms, ranging from
informal ?chatter? among OSP users to more formal ?conferences,?
?seminars,? and ?meetings.? In every context, however, the de?ning
characteristic is that each message transmitted to the computer is
retransmitted only once and virtually instantaneously to all the other
participants in the ?discussion.? When the number of such participants
is limited, it is reasonable to expect that courts will characterize the
participation in the communication process as equivalent to that
of a telephone company, which permits customers to use its facilities to
transmit oral messages. Indeed, in many cases, each ?real-time? message
is being transmitted from the sender to the OSP, and from the OSP to
the other participants, by a telephone company, also without human
intervention."? In such contexts, the OSP, like the telephone company,
would not be subject to defamation liability for failing to ?screen? the
real-time messages transmitted from one user to others as it passed
through the computer.105

Telephone calls, however, typically involve a relatively small number
of participants. A different standard might be considered if real-time
messages are received online by a large audience of OSP users.?
A defamed plaintiff might argue that the OSP in that context was equiv-
alent to a broadcaster hosting a live, listener call-in show, particularly if
the OSP acted as an online host or moderator of the conference. It is
conceivable that in such a context, the OSP might have had both the
technical capability and the practical opportunity to screen the real-time
messages before retransmitting them to the other participants, similar to
the broadcaster?s ability to use a seven-second delay device to screen
caller comments. Although their validity is questionable, cases holding
a broadcaster liable for broadcasting live third party content might
support a ?nding that the OSP had ?publish the real-time messages
during a moderated online conference.?

?04 See N. 38 supra.

See supra. See also, Becker, ?The Liability of Computer Bulletin
Board Operators for Defamation Posted by Others,? 22 Conn. L. Rev. 203, 221 n.86
(1989) (?For the same reason, when .computer bulletin boards with different owners are
connected into a network, intermediate boards on the network which do nothing but
pass information along should also not be held to have published the information trans-
mitte 

106 See N. 74 supra.

Contrast Snowden v. Pearl River, 251 So.2d 405, 410-411 (La. App.), appli-
cation denied 259 La. 885, 253 So.2d 217 (1971) (broadcaster?s failure to use tape
delay during call-in show constituted publication of caller?s defamatory comment
with ?reckless disregar and Coffey v. Midland Broadcasting, 8 F. Supp. 889, 890

2-55 DEFAMATION 2.03[3]

ii j?Electrom'c Mail

Like real-time messages, e-mail communications can take many
forms. The sender can address his message to the e-mail address of
another user of the same OSP or of a different OSP to which the
sender?s OSP has network access. He also can send his message to a
large number of e-mail addresses, using his own ?mass-mailing? list
or by sending it to a ?list-server,? which relays the message to
the e-mail addresses of everybody else who subscribes to that list-
server.?8

The Electronic Communications Privacy Act,109 which in most con-
texts prevents an OSP from disclosing an e-mail message to anyone
other than its designated recipient,no might not prevent an OSP from
screening e-mail messages for unlawful or tortious content before
retransmitting them to their intended Nevertheless, for
many users, the loss of privacy associated with such screening would
substantially reduce the attractiveness of the e-mail service.

Again, it is reasonable to expect that courts will permit OSPs to
assure users of privacy when sending and receiving e-mail and will not
impose on the OSP a cormnon law duty to screen such messages. If an

(W.D. Md. 1934) (broadcaster strictly liable for third party live remark), with May-
nard v. Port Publications, 98 Wis.2d 555, 566-567, 297 500, 506, 16
1361 (1980) (failure of contract printer to inspect newspaper reproduced
for another did not subject printer to liability for publishing its defamatory content).
See and text accompanying Ns. 96-101 supra. OSP liability for
transmitting real-time third party content, even in cases where the OSP moderates the
online discussion, is arguably foreclosed by the Communications Decency Act of
1996 (see N. 16 supra), which contains a provision that bars the states from treating
an OSP as the publisher of information provided by another content provider,
although it is possible that a plaintiff could contend that the role in moderat-
ing and promoting the discussion was suf?cient to characterize the OSP as the
?provider? of that content. See infra.

See Perritt, ?The Congress, the Courts and Computer Based Communications
Networks: Answering Questions About Access and Content Control?Introduction,? 38
Vii]. L. Rev. 319, 324 n.7 (1993) (A list-server is ?a kind of multiplier or re?ector, an
automatic mailing list. It is technically a use of electronic mail. It functionally is a hybrid
of electronic mail, electronic conferencing and electronic publishing?).

Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codi?ed in scattered sections of
18 U.S.C.).

See 18 U.S.C. 2511(1); 2702 (1988).

1? See: 18 U.S.C. 2511(2)(a)(i) (agent of OSP may intercept an electronic
communication ?in the normal course of his employment while engaged in any activity
which is a necessary incident . . . to the protection of the rights or property of the?
l8 U.S.C. 2702(b)(4) (authorizing disclosure of e-mail stored on 
computer to Perritt, Tort Liability, the First Amendment, and Equal Access to
Electronic Networks,? 5 Harv. l. L. Tech. 65, 108 (1992); Becker, ?The Liability of
Computer Bulletin Board Operators for Defamation Posted by Others,? 22 Conn. L. Rev.
203, 221 n.83 (1989).

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2-56

e-mail message is retransmitted by an computer immediately
after it receives it (presumably to another OSP through a network
connection), the role is equivalent to that of a mere supplier of
communications equipment, like a telephone company. If an e-mail
message is stored on an computer for an extended period prior to
its retransmission, the OSP has control over that message that is more
like the control exercised by a distributor of physical material. Even if
the OSP were characterized as a distributor, however, the common law
of defamation would impose no general duty on the OSP to screen each
e-mail message for defamatory content.112

While mass-mailings of an e?mail message might not implicate the
same level of privacy concerns, their transmission by an OSP computer
cannot be fairly equated with the airing of third party content by
broadcasters, even if one were to assume the validity of the few cases
imposing liability on broadcasters for such content. The broadcaster
typically transmits only one message at a time, on a single channel. An
computers might receive and transmit hundreds or thousands of
e?mail messages every day. Requiring the OSP to review each message
sent to its computers for unlawful or tortious content before transmitting
it to its addressee would create cost and time constraints that, as a
practical matter, would destroy the utility of the service for most users.
Both the common law of defamation and the First Amendment prohib-
it a liability standard that would create that kind of impediment to the
free ?ow of constitutionally protected information."3

J?Databases, File Areas and Bulletin Boards

Third party content contained in a database, ?le area, or bulletin
board that is maintained on an computer typically remains there
for an extended period of time, during which it is retransmitted
on separate occasions to the various users who seek access to it. While
every retransmission of such content can occur without human involve-
ment by the OSP, the OSP nevertheless has control over the ongoing

"2 See supra. See also, Lunney v. Prodigy Services Co., 250
230, 236, 683 557, 562 (1998), a?'d 94 242, 723 
539 (1999), cert. denied 146 L. Ed.2d 776 (2000) (holding that Prodigy cannot be
considered ?publisher? of defamatory e?mail messages transmitted over
Prodigy?s service, notwithstanding ruling in Stratum Oakmont (N. 16 supra and
infra) that it was publisher of bulletin board postings, because
?[w]hatever editorial control over such [bulletin board] postings might have been
possible, it is clear from the present record that a service proider such as Prodigy
cannot screen all of the e-mail by its subscribers?).

?3 See text accompanying N5. 79 and 101 supra. Such a liability standard is also
prohibited by the Communications Decency Act of 1996. See N. 16 supra, and
infra.

2?56.l DEFAMATION 2.03[3]

distribution of that content once it is uploaded onto its computers.
The privacy concerns associated with e-mail are largely absent, and the
physical constraints imposed by the need for immediate delivery asso?
ciated with real-time messages are more attenuated. Will the courts
impose a duty on an OSP to screen such content before it is retransmit-
ted by its computers?

The role played by the OSP in communicating such content to others,
and the OSP's control over that content while it is stored on its computers,
are functionally equivalent to the role and control of the traditional "sec?
ondary publisher" in the print context: the magazine distributor, the news
vendor, or the university library. The two reported decisions that address
the liability standard for an OSP that transmits third party content, Cubby,
Inc. v. Compu-Serve Inc.?" and Stratton Oakmont, Inc. v. Prodigy Ser?

(Text continued on page 2-5 7)

114 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).



2-57 DEFAMATION 2.03m

vices Co., 115 both arose in this context. The Cubby decision con?rmed the
applicability of the common law?s distributor standard to an OSP that
transmits third party content contained in a database. The Stratton Oak-
mont decision, however, imposed on Prodigy a duty to screen user content
posted on its bulletin boards.

[A]??Transmission of Third Party Content Contained in a Database.
In Cubby, Inc. v. CompuServe Inc., a newsletter that allegedly defamed
the plaintiffs was uploaded by its publisher onto a database maintained on
CompuServe?s computers. The database was part of the ?Joumalism
Forum,? one of many special interest forums available to subscribers of
CompuServe?s general online information service. The Journalism Forum
offered subscribers access to real-time conferences, topical bulletin
boards, and databases. The forum was developed and managed by an
independent company, which had contracted with the newsletter?s pub-
lisher to make the newsletter available to certain subscribers on one of the
forum?s databases. ?6 The newsletter was available to approved subscrib-
ers immediately after the publisher uploaded it onto the database. Com-
puServe did not review the newsletter?s content either before or after it
was uploaded, and thus had no knowledge of its allegedly defamatory
content until the plaintiff sued CompuServe for libel. 11

The court characterized CompuServe?s online service as ?in essence
an electronic, for?pro?t library that carries a vast number of publications
and collects usage and membership fees from its subscribers in return for

 

?5 Stratton Oakmont, Inc. v. Prodigy Services (10., 23 Media L. Rep. (BNA) 1794
(NY. Sup. May 25, 1995).

?6 Cubby, N. 114 supra, 776 F. Supp. at 137. The forum manager had contracted with
CompuServe ?to ?manage, review, create, delete, edit and otherwise control the contents?
of the Journalism Forum ?in accordance with editorial and technical standards and conven-
tions of style as established by CompuServe.?? 776 F. Supp. at 137. The forum manager?s
obligation to ?create,? ?edit? and ?control the contents? of the forum gave it ?control over
the assembly of the contents of the? forum, 776 F. Supp. at 143, requiring it to select the
publications that would be included in the databases; it did not, however, give the forum
manager any editorial right to control the content of those publications. The forum man-
ager?s contract with the newsletter?s publisher provided that the publisher ?accepts total
responsibility for the contents? of the newsletter. 776 F. Supp. at 143.

?7 Although not mentioned in the Cubby opinion, the forum manager also did not
review the newsletter before it was made ?instantaneously available? on the database to
approved subscribers by its publisher, nor did he have any knowledge of the allegedly def-
amatory content of the newsletter until the plaintiff ?led his suit. See Affidavit of Jim
Cameron in Support of Defendant CompuServc?s Motion for Summary Judgment (?led
April 5, 1991) at 6-7. The plaintiff did not name the forum manager as a defendant.

 2.03 INTERNET AND ONLINE LAW 2-58

access to the publications.? ?8 The court concluded that ?it would be no
more feasible for CompuServe to examine every publication it carries for
potentially defamatory statements than it would be for any other distribu-
tor to do so,? ?9 and that a ?computerized database service ?is one of the
modern . . . ways the public may obtain up-to-the-minute news? and ?is
entitled to the same protection as more established means of news distri-
bution.?? 120

The court observed that the ?protection? afforded the ?more estab-
lished means? of news distribution?no general duty to inspect content?
?is deeply rooted in the First Amendment,? quoting extensively from the
Supreme Court?s ruling in Smith v. California regarding the potential
criminal liability of a bookseller. 121 Noting that ?the First Amendment?s
guarantees? applied in Smith ?are no less relevant? in a libel action, 122 the
court held that application to CompuServe of the same standard of liabil-
ity applied to other distributors??whether it knew or had reason to know
of the allegedly defamatory? content 123?was required both by the com-
mon law and by the First Amendment:

?High technology has markedly increased the speed with which infor-
mation is gathered and processed; it is now possible for an individual
with a personal computer, modem, and a telephone line to have
instantaneous access to thousands of news publications from across
the United States and around the world . . . . A computerized database

 

?8 Cubby, N. 114 supra, 776 F. Supp. at 140.
119
Id.

?20 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991), quoting
Daniel v. Dow Jones 8; Co., 137 Misc. 2d 94, 102, 520 334, 340 (NY. Civ.
1987). Daniel involved a misrepresentation claim against an online database. See 3.03,
3.04 in?a.

12? Cubby, N. 120 supra, 776 F. Supp. at 139-140. See text accompanying N. 79 supra.
The court also quoted from a case applying the same First Amendment protections in a
statutory, ?false light? privacy action. 776 F. Supp. at 140, quoting Lennan v. Dis-
tributing Co., 745 F.2d 123, 139 (2d Cir. 1984), cert. denied 471 U.S. 1054 (1985) (?Obvi-
ously, the national distributor of hundreds of periodicals has no duty to monitor each issue
of every periodical it distributes. Such a rule would be an? impermissible burden on the
First Amendment?).

12?- Cubby, N. 120 supra, 776 F. Supp. at 140, quoting New York Times v. Sullivan,
376 U.S.277, 376 710, 11 L.Ed.2d 686 (1964) (?What a State may not constitution-
ally bring about by means of a criminal statute is likewise beyond the reach of its civil law
of libel. The fear of damage awards . . . may be markedly more inhibiting than the fear of
prosecution under a criminal statute?).

?23 Cubby, N. 120 supra, 776 F. Supp. at 140-141.

2-59 DEFAMATION 2.0313]

is the functional equivalent of a more traditional news vendor, and the
inconsistent application of a lower standard of liability to an elec-
tronic news distributor such as CompuServe than that which is
applied to a public library, book store, or newsstand would impose an
undue burden on the free ?ow of information.? 124

Because CompuServe neither knew nor had reason to know of the
allegedly defamatory statements in the newsletter, the court entered sum-
mary judgment for CompuServe on the plaintiffs? libel claim.

[B]?Duty to Screen User Content Posted on Bulletin Board. In Strat-
ton Oakmont, Inc. v. Prodigy Services Co., an unknown person obtained
access to Prodigy?s online service with a former user?s account number
and posted defamatory messages on Prodigy?s ?Money Talk? bulletin
board. Prodigy had contracted with a ?Board Leader,? whose duties
included enforcing Prodigy?s ?content guidelines? by deleting ?insulting?
or otherwise offensive messages from the bulletin board. 125 The plaintiffs
sued Prodigy, but not the Board Leader, for libel. After some discovery,
the plaintiffs moved for partial summary judgment on whether Prodigy
?may be considered a ?publisher? of the? defamatory messages. 126

The court granted the plaintiffs? motion. The court asserted that it was
?in full agreement? with the Cubby decision and that ?[c]omputer bulletin
boards should generally be regarded in the same context as book stores,
libraries, and network affiliates.? ?27 Nevertheless, it stated that the dis-
tributor standard applied to CompuServe in Cubby should not be applied
to Prodigy for two reasons.

First, the court determined that Prodigy ?held itself out to the public
and its members as controlling the content of its computer bulletin
boards.? ?28 That determination was based on articles written by a Prodigy
marketing of?cial that were published in national newspapers, in which
be characterized Prodigy as a ?private publisher[] like the New York
Times,? and defended Prodigy?s practice of ?using its editorial discre-

 

?24 1d,, 776 F. Supp. at 140.

?25 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA) 1794-
1796, 1799 CN.Y. Sup. May 25, I995). 

'26 Id, 23 Media L. Rep. (RNA) at 1795. The plaintiffs also requested, and the court
granted, a partial summary judgment that the Board Leader was Prodigy?s ?agent,? for
whose conduct Prodigy was liable. Id.

?27 Id, 23 Media L. Rep. (BNA) at 1798.
?23 Id, 23 Media L. Rep. (BNA) at 1797.

 2.03[3] INTERNET AND ONLINE LAW 2-60

tion? not ?to publish? messages on its bulletin boards that are contrary to
the ?value system? of ?the millions of American families we aspire to
serve,? stating (in a passage quoted by the court): ?Certainly no responsi-
ble newspaper does less when it chooses the type of advertising it pub-
lishes, the letters it prints, the degree of nudity and unsupported gossip its
editors tolerate.? 12

Second, the court found that Prodigy ?implemented? its publicly
claimed control over content through its ?automatic software screening
program,? which ?prescreens all bulletin board postings? for certain
words identi?ed in the program as ?offensive,? and by requiring Board
Leaders to enforce its content guidelines, which state that offensive mes-
sages ?will be removed when brought to attention.? 130
Thus, the court concluded that it was Prodigy?s ?own policies, technology
and staf?ng decisions which have altered the scenario? in which bulletin
board services are generally regarded as secondary publishers:

?By actively utilizing technology and manpower to delete notes from
its computer bulletin boards on the basis of offensiveness and ?bad
taste,? for example, PRODIGY is clearly making decisions as to con-
tent, and such decisions constitute editorial control. That such control
is not complete and is enforced both as early as the notes arrive and as

 

'29 Moore, ?The First Amendment Is Safe at Prodigy,? N. Y. Times, 3 at 13 (Dec. 16,
1990). Prodigy?s public statements analogizing itself to a newspaper were made amidst
controversy among its users and legal commentators regarding its legal right to censor
messages posted on its bulletin boards. Conner, ?Cubby v. CompuServe, Defamation Law
on the Electronic Frontier,? 2 Geo. Mason Indep. L. Rev. 227, 239?241 (1993);
Schlachter, ?Cyberspace, the Free Market and the Free Marketplace of Ideas: Recognizing
Legal Differences in Computer Bulletin Board Functions,? 16 Hast. Comm/Ent L.J. 87, 96
nn.33-34, 136 n.271 (1993). See Di Lello, ?Functional Equivalency and Its Applica-
tion to Freedom of Speech on Computer Bulletin Boards,? 26 Columbia IL. Soc. Prob.
199 (1993) (arguing that Prodigy is functional equivalent of a shopping center whose right
to censor speech on its premises can be restricted by state or federal law). Although Prod-
igy argued that its ?former policy of manually reviewing all messages prior to posting was
changed ?long before?? the defamatory messages were posted, the court stated that ?no
documentation? of the change, ?or of the dissemination of news of such a change, has
been submitted.? Stratton Oakmont, .Inc. v. Prodigy Services Co., 23 Media L. Rep.
(BNA) 1794, 1796 (NY. Sup. May 25, 1995).

130 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA) 1794,
1796-1797 (N. Y. Sup. May 25, 1995). (Emphasis added.) The court characterized Prod-
igy as having ?virtually created an editorial staff of Board Leaders who have the ability to
continually monitor incoming transmissions and in fact do spend time censoring notes.?
23 Media L. Rep. (BNA) at 1798.

2-61 DEFAMATION 2.03[3]

late as a complaint is made does not minimize or eviscerate the
simple fact that PRODIGY has uniquely arrogated to itself the role
of determining what is proper for its members to post and read on
its bulletin boards. Based on the foregoing, this Court is compelled
to conclude that for purposes of Plaintiffs? claims in this action
PRODIGY is a publisher rather than a distributor.?131

The court held that Prodigy was a ?publisher? of the defamatory
messages without making any express ?nding as to whether it knew
or had reason to know of their defamatory content when they were
retransmitted to other Prodigy users, and there is nothing in the
court?s opinion suggesting that Prodigy or the Board Leader had such
knowledge. In essence, then, the court imposed on Prodigy a common
law duty to inspect manually and evaluate for defamatory content,
before allowing them to be retransmitted to other users, each of the
60,000 messages posted on its bulletin boards every day.132

It is possible to limit the signi?cance of the Stratton Oakmonr deci-
sion by focusing on facts unique to Prodigy on which the court
arguably based its decision, such as Prodigy?s unusual public relations
history?3 and use of automatic screening softwarem There is a basic
?aw in the court?s reasoning, however, that makes it unlikely that it
would survive appellate scrutiny: it assumes that Prodigy?s ?editorial
control? over the content of its bulletin boards?which the court ulti-
mately de?ned as Prodigy?s right to determine which messages are

?31 1a., 23 Media L. Rep. (BNA) at 1797. (Citations omitted.) (Emphasis added.)

?32 Id., 23 Media L. Rep. (BNA) at 1796.

133 See N. 129 supra and accompanying text.

134 While such software might help prevent the transmission of offensive words, it
is essentially useless to identify and prevent transmission of defamatory messages.
Offensive words are not necessarily defamatory, particularly when read in context, which
software cannot do but which is required by both the common law and the First Amend-
ment. See supra. And statements that are defamatory can easily consist
of words that would not be identi?ed as ?offensive" in even the most sophisticated
software program imaginable. If an OSP has a duty to inspect messages for defamatory
content, such so?ware does little if anything to relieve the burden of manual inspection
that such a duty creates. See Lunney v. Prodigy Services Co., 250 230, 235, 683
557, 561 (1998), a??d 94 242, 723 539 (1999), cert. denied 146
L.Ed.2d 776 (2000) (?But application of any unintelligent automatedword-exclusion
program of this type cannot be equated with editorial control. A highly offensive
message can be composed in the most impeccable prose, just as words often thought of
as offensive can be used affectionately or humorously in certain contexts. Intelligent
editorial control involves the use of judgment, and no computer program has such a
capacity?). See generally: Bruck v. Cincotta, 56 Ill. App. 3d 260, 13 Ill. Dec. 782, 371
874, 879 (1977) is no general rule de?ning what words are defamato?
ry, and each case must depend upon its own facts?); Sack, Libel, Slander; and Related
Problems, 2.4.2, at 79 (2d ed. 1994) is thus typically determinative?).

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2-62

?proper for its members to post and read on bulletin boards??makes
it a ?publisher? of each message under the law of defamation. That
assumption is clearly false.

While it is true that a publisher?s ?choice of material to go into a
newspaper? constitutes ?the exercise of editorial control and judgment?
by that publisher,? his ?increased liability? for defamation arises from
the knowledge of content that he inherently acquires as result of exer-
cising that judgment to include the material in the newspaper?"5 it does
not arise from the mere fact that he has a right to make that judgment.
All distributors, like primary publishers, exercise the very same right to
determine what material they will disseminate and what material they
will not. But the exercise of that right does not necessarily give the
distributor knowledge of a particular publication?s content, nor does it
mean that he exercises ?editorial control? over the content of those
publications he chooses to disseminate, a fact emphasized by the court
in Cubby and equally applicable to the ?publications? posted by users
on OSP bulletin boards.?" Similarly, his right to refuse to distribute a
particular publication by a publisher whose work he normally distrib-
utes does not give the distributor ?editorial control? over the content of
the publisher?s works that he does distribute.138 Indeed, the liability
standard applied to a distributor presumes that he has such a right to
refuse distribution and requires him to exercise it whenever he knows
or has reason to know that a particular publication contains unlawful or
tortious content. His efforts to exercise that right, therefore, cannot
create the very same general duty to inspect content that is prohibited
by that common law standard (and by the First Amendment).

Accordingly, the ruling in Stratton Oakmont?that Prodigy?s efforts
to claim and exercise the right to refuse distribution of objectionable
material make it liable for publishing every defamatory message post-
ed on its bulletin boards, even if it has no knowledge or reason to

?35 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA) 1794,
1796 (NY. Sup. May 25, 1995), citing Miami Herald Publishing Co. v. Tomillo, 418
US. 241, 258, 94 2831, 41 L.Ed.2d 730 (1974).

136 See N. 91 supra and accompanying text.

137 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991)
(?While CompuServe may decline to carry a given publication altogether, in reality,
once it does decide to carry a publication, it will have little or no editorial control
over that publication?s contents . . . . CompuServe has no more editorial control over
such a publication than does a public library, bookstore, or newsstand?).

?33 See, Auvil v. CBS ?60 Minutes,? 800 F. Supp. 928, 931 (15.1). Wash.
1992) (discussed in text accompanying N. 58 supra). See also: Maynard v. Port
Publications, 98 Wis. 2d 555, 566, 297 500, 506 (1980) (discussed in N. 99
supra); Misut v. Mooney, 125 Misc.2d 95, 100, 475 233, 236 (Sup. 1984)
(discussed in N. 103 supra).

2-63 DEFAMATION 2.03[3]

know of the message?s defamatory content?is contrary to both the
common law of defamation and the First Amendment??

The Stratton Oakmont ruling was effectively repudiated in a later case
by the Court of Appeals of New York.140 In this case, an ?infantile
practical joker? fraudulently opened an account with Prodigy using the
plaintiff?s identity and then used that account to publish under the plain-
tiff ?5 name allegedly defamatory statements in an e-mail message and in
two posts on a Prodigy bulletin board. The court found dispositive a
prior case in which it had held that a telephone company, as opposed to
a telegraph company, is not a publisher of material transmitted over its
lines because the material is ?communicated directly? by the sender to
the recipient without being communicated ?by or to any person
employed by the telephone company.?141 The court found the distinction
between a telegraph company and telephone company in the earlier case
to be dispositive because ?Prodigy?s role in transmitting e-mail is akin
to that of a telephone company, which one neither wants nor expects to
superintend the content of its subscribers? conversations.?142 Thus, the
court found that Prodigy, ?like a telephone company, is merely a

139 After the Stratton Oakmonr court entered its partial summary judgment ruling,
Prodigy retained new counsel and ?led a motion ?for Renewal and/or Reargument,?
together with new affidavits from Prodigy employees in an attempt to clarify Prodigy?s
practices and to correct errors in the record on which the court had based its ruling. In
an apparent attempt to settle the litigation, the plaintiffs ?led an af?davit stating that they
did not oppose Prodigy?s motion, and the parties issued a joint press release stating their
agreement ?that disposition of the motion in this manner is in the best interests of the
parties as well as the online and interactive services industry.? See Goldstein, ?Prodigy,
Investment Firm Seek to End Libel Lawsuit,? New York Law Journal, at 1 (Oct. 25,
1995). Nevertheless, the trial court denied the motion because Prodigy had not demon-
strated ?an acceptable excuse? for omitting the evidence in the new affidavits from the
original record. Stratton Oakmont Inc. v. Prodigy Services Co., 24 Media L. Rep. (BOA)
1126, 1127-1128 (N.Y. Sup. Dec. 11, 1995) (refusing to vacate summary judgment
ruling ?as part of a settlement package,? based on the court?s belief that ?there is a real
need for some precedent? in this ?developing area of the law (in which it appears the
law has thus far not kept pace with technology)"). The trial court?s desire to preserve the
importance of its summary judgment ruling as ?precedent? was thwarted by
Congress, which included a section in the Communications Decency Act of 1996 (see
N. 15.1 supra) that creates a federal statutory defense to civil liability for an OSP that
transmits tortious third party content. That section is expressly intended to overrule the
Stratton Oakmonr decision. See 2. 03[3][t] infra.

Lunney v. Prodigy Services Co., 94 N. Y.2d 242, 723 N. 2d 539 (1999), cert.
denied 146 L. Ed. 2d 776 (2000).

Anderson v. New York Telephone Co., 35 745, 320 647 (1974),
reversing 42 151, 345 740 (1973). The Anderson decision is detailed
in infra.

?2 Lurmey v. Prodigy Services Co., N. 140 supra, 94 at 249, 723 
at 542.

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2?64

conduit? when transmitting e-mail messages and therefore ?was not a
publisher? of those messages under New York common law. ?3

The court noted that there were ?more complicated legal questions
associated with? the messages posted on Prodigy bulletin boards,
?owing to the generally greater level of cognizance that their opera-
tors have over them.?144 Nevertheless, the court agreed with the
Appellate Division?s ?nding that, ?even if Prodigy ?exercised the
power to exclude certain vulgarities from the text of certain [bulletin
board] messages,? this would not alter its passive character in ?the
millions of other messages in whose transmission it did not partici-
pate,? nor would this . . . compel it to guarantee the content of those
myriad messages?? Thus, the court af?rmed the Appellate Divi?
sion?s holding that Prodigy was not a ?publisher? of the bulletin board
messages because ?there is no proof that any such control was exer-
cised in connection with the transmission of the messages complained
of by the plaintiff.?1146 In short, Prodigy was not the publisher of the

"3 Id. The court also affirmed the Appellate Division?s alternative hoiding that,
even if Prodigy were assumed to have published the e-mail messages, it would be
protected from liability by the common law quali?ed privilege afforded common car-
riers. Id. See Lunney v. Prodigy Services Co., 250 230, 683 557
(1998'), a??d 94 242, 723 539 (1999), cert. denied 146 L. Ed. 776
(2000) (?The common law privilege which bene?ts telegraph companies must apply
to Internet service providers as well. E-mail is, in substance, nothing but an updated
version of the telegraph?). See N. 39 supra and N. 159 infra. The Appellate Divi-
sion concluded that this holding rendered it decision ?in complete harmony with? the
federal statutory immunity now afforded by Section 509 of the Communications
Decency Act, 47 U.S.C. 230(c)(1), discussed in infra, and chose not
address ?the essentially academic question of whether this Federal statute w'ould
apply to? any of the messages at issue. 683 at 563. The Court of Appeals
also ?decline[d]? to rule on the applicability of Section 509 of the CDA because, in
its view, the ?case does not call for it.? Lunney v. Prodigy Services Co., N. 140 supra,
94 at 251, 723 at 543. See id, 94 at 248-249, 723 at
541 (?Because Lunney?s defamation action is grounded in New York common law,
we evaluate it in accordance with our established tort principles. Although they were
fashioned long before the advent of e-mail, these settled doctrines accommodate the
technology comfortably, and with apt analogies?). (Citations omitted.)

Lunney v. Prodigy Services Co., N. 149 supra, 94 at 249-250, 723
at 542.

?5 1a., 94 at 250, 723 at 542. (Citations omitted.)

"6 Lunney v. Prodigy Services Co., N. 142 supra, 250 at 237. While the
Court of Appeals did not expressly mention the Stratton Oakmont ruling in its opinion,
the Appellate Division expressly held that Stratton Oakmont was not ?controlling?
because the reasoning underlying that ruling was inconsistent with the Court of Appeals?
decision regarding the liability of the telephone company in Anderson Id. The Appellate
Division also stated that Siratton Oakmont was ?made in an entirely different factual
context? because the ?efforts at editorial control? described in that ruling had been in
fact abandoned by Prodigy in January 1994, prior to the events giving rise to the
Lunney complaint. Id, 250 AD. at 236-237, 683 at 562. Finally, the Appellate

2-65 DEFAMATION 2.03[3]

bulletin board messages because there was no proof that a ?human
being in the employ? of Prodigy had acquired knowledge of their
content prior to allowing them to be transmitted over its service.?

iv jrAnonymous Users

Some OSPs permit their computers to be used as ?anonymous
remailers,? which strip a sender?s message of all identifying informa-
tion and then retransmit it to other OSPs as an anonymous e?mail or
bulletin board message. Although a plaintiff defamed by an anony-
mous message might be able to obtain the author?s identity from the
anonymous remailer, in many cases discovery of the sender?s identity
may not be possible.148

The common law of defamation contemplates that plaintiffs will
have no remedy for damage caused by anonymous messages in some
contexts, such as an anonymous telephone call or letter.? An anony-
mous e-mail or bulletin board message, however, arguably justi?es a
different standard because it can be circulated as easily and quickly
among thousands or millions of OSP users, without any material dif-
ference in cost or likelihood of detection for its sender. Unless the OSP
is subject to liability for publishing the message, the plaintiff might
have no remedy for the damage caused by the widespread circulation
that the OSP made possible. Will a state?s interest in providing the
plaintiff with a remedy for such widespread damage cause courts to
impose liability on the OSP for permitting its computers to retransmit
an anonymous message, even if the OSP had no knowledge of its
defamatory content?

Division stated that its ?disagreement? with the Stratton ruling was ?dictated? by ?one
simple consideration of fairness,? concluding that an OSP should not be ?punished for
allegedly performing in an inadequate way the very conduct (exercise of editorial
control) which, initially, it had no legal duty to perform at all.? 1d. (noting that the
Stranon rule ?discourages the very conduct which the plaintiff? in Srratton argued should
be encouraged?).

1a., 250 at 235, 683 at 561. See Lunney v. Prodigy Services
Co., N. 140 supra, 94 at 250-251, 723 at 542 (?We see no occasion
to hypothesize whether there may be other instances in which the role of an electronic
bulletin board operator would qualify it as a 

"8 See Hardy, ?The Proper Legal Regime for ?Cyberspace,?? 55 U. Pitt. L. Rev.
993, 1011 (1994) (?obvious answer? is for a court to subpoena the records of the
anonymous remailer, but this might not be ?practical? if the remailer ?systematically
erases the records of its anonymously forwarded mail? or if it ?is located in a
dif?cult to reach foreign jurisdiction"). See generally, Akst, ?Postcard From
Cyberspace: The Helsinki Incident and the Right to Anonymity,? LA. Times, at D1
(Feb. 22, 1995) (describing anonymous remailer in Finland that ?processes more than
7,000 messages daily, mostly for Americans?).

?9 See Restatement (Second) of Torts, 581, comment (1977) (telephone com-
pany not liable for anonymous defamatory calls made from ?a pay station? telephone).

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2?66

The First Amendment prohibits any rule that would prevent an OSP
from transmitting anonymous messages regardless of their content.150
While the constitutional protection afforded such speech does not pre-
vent the imposition of liability on one who distributes an anonymous
message with knowledge of its defamatory content, the First Amend?
ment would prohibit any rule requiring the OSP to inspect manually all
messages sent to its computers to ascertain whether their source is
anonymous, just as it prohibits any such general duty to inspect to
ascertain whether they are obscene or defamatory.?1

If an computer, without human intervention, could screen all
messages it receives and segregate those that have no identi?able
source, a plaintiff might argue that the OSP should have a duty to use
such technology and to inspect manually just the segregated, anony-
mous messages for defamatory content, thus rendering the OSP liable
at common law for publishing whatever anonymous messages it per-
mits to be retransmitted by its computers.?52 Such a rule might still

15" See: McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 1511,
131 L.Ed.2d 426, 438 (1995) (First Amendment prohibits statute banning distribution
of anonymous campaign literature; state?s interest in identifying source of libelous
campaign literature did not justify ban, which ?plainly applies? to anonymous speech
?even when there is no hint of falsity or libel?); Talley v. California, 363 U.S. 60, 64,
80 536, 4 L.Ed.2d 559 (1960) (First Amendment prohibits ordinance barring
distribution of unsigned handbills).

151 See Ns. 79 and 122 supra and accompanying text. Such a rule would also be pro-
hibited by the Communications Decency Act of 1996 (see N. 15.1 supra), which bars
the states from treating an OSP as the publisher of information provided by another
information content provider without making any exception to that rule for ?anonymous?
third party content providers. See infra. The analysis might differ for the
anonymous remailer, whose modi?cation of the sender?s message to make it anonymous
might justify a rule requiring it to inspect the message for unlawful or tortious content.
Identi?cation of the anonymous remailer, however, might not be possible in many cases.
See Hardy, ?The Proper Legal Regime for ?Cyberspace,?" 55 U. Pitt. L. Rev. 993, 1051
(1994) (plaintiffs ?might be able to ?nd a court congenial to the application of strict lia-
bility? for anonymous remailers, ?but not be able to ?nd a defendant to whom it should
apply?). See generally: Johnson-Laird and Johnson?Laird, House of 111 Repute:
Internet Technology, E?Mail, and Anonymity,? J. Internet L. 8-20 (Sept. 1997); Note,
?Establishing Legal Accountability for Anonymous Communication in Cyberspace,? 96
Columbia L. Rev. 1526 (I996). Froomkin, ?Anonymity and Its Enmities,? 1995 J.
Online L. art. 4 (available over the Internet at 
Branscomb, ?Anonymity, Autonomy, and Accountability; Challenges to the First
Amendment in Cyberspace,? 104 Yale L. J. 1639 (May 1995).

152 Under the common law of defamation, an OSP that intentionally permits
messages of an unknown origin to be posted on its computers might be barred from
disclaiming responsibility for ?publishing? such messages in much the same way that
some courts have barred a libel defendant who refuses to disclose the identity of a
?confidential source? from relying on that source to prove that he did not act with
the requisite degree of fault in publishing the defamatory article. See, 

Ninth Circuit: Laxalt v. McClatchy, 116 F.R.D. 438, 452 (D. Rev. 1987); DeRoburt
v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981).

2-67 DEFAMATION 2.03[3]

violate the First Amendment by imposing a potentially signi?cant bur-
den on the distribution of anonymous messages, since all would have
to be screened manually for defamatory (or otherwise unlawful) con-
tent. In any event, Section 509 of the Communications Decency Act of
1996 now preempts any such duty to inspect the content of anonymous
messages that might be imposed on an OSP by state law.153

An immunity from liability under Section 509, however,
does not relieve the OSP from responding to a subpoena issued by a
court compelling the OSP to disclose to the allegedly defamed party
whatever identifying information it has about the source of the anony-
mous message. During the three-year period of 1998-2000, there were
reportedly more than 120 instances in which a person or company ini?
tiated litigation to compel various OSPs to disclose identifying infor-
mation about anonymous or pseudonymous users who allegedly had
posted defamatory comments or proprietary information on Internet
message boards.154 Plaintiffs typically pursue such information from
OSPS either by ?ling a ?John Doe? lawsuit against the unknown
posters and then serving a non-party subpoena on the OSP in that
action or, in some states, by ?ling an action against the OSP for ?an
equitable bill of discovery.?155 Before responding, many OSPs pro-
vide notice to their users of the subpoena seeking their identity. When
a ?John Doe? defendant who receives such notice enters a special

District of Columbia Circuit: Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19,
1986); Dowd v. Calabrese, 577 F. Supp. 238, 244 (D.D.C. 1983).

State Courts:

Nevada: Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988).

New Hampshire: Downing v. Monitor Publishing Co., 120 NH. 383, 415 A.2d683
(1980).

New York: Greenberg v. CBS, Inc., 69 693, 709, 419 988, 977
(1979).

?53 See N. 15.1 supra and infra.

154 Most of the news reports of such litigation are compiled online at:
(visited
January 31, 2001). See generally, Bell, ?Dealing with the ?Cybersmear,?? New York
Law Journal at T3 (April 19, 1999) (?since June 1988, American companies ?ghting

. cyber-smears reportedly have been ?ling one or two lawsuits a week in Santa
Clara County, Calif, the home of Yahoo! 

155 See: Annot., ?Proprietyof Use of Fictitious Name of Defendant in Federal
District Court,? 139 A.L.R. Fed. 533 (2001); Annot., ?Existence and Nature of Cause
of Action for Equitable Bill of Discovery,? 37 645 (1999). Courts have
denied as procedurally improper, however, a ?petition to preserve testimony? ?led
against an OSP to seek such information. See, e.g, In re Petition of Texaco, Inc., 51
Va. Cir. 411, 2000 Va. Cir. LEXIS 59 (March 14, 2000). See generally: Keller and
Johnson, ?Online Anonymity: Who Is John Doe?,? 5 Electronic Commerce L. Rep.
(BNA) 70, 72-73 (Jan. 19, 2000); Sobel, ?The Process that ?John Doe? is Due:
Addressing the Legal Challenge to Internet Anonymity,? 5 Va. J.L. Tech. 3 (2000).

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2?68

appearance and moves to quash the subpoena, some courts have held
that, because the user?s interest in preserving his anonymity is pro-
tected by the First Amendment, the subpoena may not be enforced
unless the plaintiff has demonstrated, or at least alleged, a prima facie
case of defamation against the defendant?s?5

Liability for Transmitting Third Party Speech
with Knowledge of Its Defamatory Content

While an OSP probably has no general common law duty to
acquire knowledge of the third party content stored on its computer,
it often obtains such knowledge in fact during the course of adminis-
tering its service.?57 The OSP also might choose to monitor third party
material for defamatory or otherwise unlawful content, or it might be
informed of such defamatory content by an angry, soon?to-be plaintiff

15? See, 

New Jersey: Dendrite International Inc. v. Doc, No. MRS C-l29-00, (NJ. Super.
Nov. 28, 2000) (discussed in 29 Media L. Rep. (BNA) No. 1, ?News Notes?) (denying
subpoena to Yahoo! in defamation action against John Doe defendants where plaintiff
failed to ?prove? a prima facie case because claim of reputational injury was
unsupported by competent testimony).

Melvin v. Doc, 29 Media L. Rep. 1065 (BNA) (Pa. C.P. Nov. 15,
2000) (court stayed discovery of identifying information from OSP to provide John
Doe defendants with ?opportunity to show that plaintiff could not make out a prima
facia case? of defamation but refused to bifurcate issue of defendants? state of mind
from all other issues and stay discovery on state of mind?including identity of
defendants?until plaintiff prevails before a jury on all other issues).

See also:

Ninth Circuit: Columbia Insurance Co. v. Seescandycom, 185 BED. 573, 577-580
(ND. Cal. 1999) (denying TRO motion against John Doe defendant because order
could not be served on defendant and ?nding that discovery to uncover identity of
John Doe defendant should not occur unless plaintiff demonstrates, inter alia, that his
suit ?could withstand a motion to dismiss?).

State Court:

Virginia: Melvin v. Doe, 49 Va. Cir. 257, 27 Media L. Rep. (BNA) 2144 (Loudoun
County June 24, 1999) (quashing subpoena served on AOL and granting John Doe
defendant?s motion to dismiss where plaintiff failed to allege suf?cient facts to
demonstrate that defendant had ?minimum contacts? with Virginia to support exercise
of personal jurisdiction).

See generally: Lidsky, ?Silencing John Doe: Defamation Discourse in Cyber?
space? ?49 Duke L. J. 855 (Feb. 2000); Tien, ?Who?s Afraid of Anonymous Speech?:
McIntyre and the Internet,? 75 Ore. L. Rev. 117 (1996).

157 See Perritt, ?Tort Liability, the First Amendment, and Equal Access to Elec-
tronic Networks,? 5 Harv. J. L. Tech. 65, 70 and n7 (1992) (noting that electronic
database vendors often remove much of the formatting or ?chunking and tagging? for
print-on-paper formats and substitute structures ?more appropriate for the electronic
formats?). Bulletin board operators often monitor the messages posted on their boards
to ensure that each message is relevant to the board?s topic, to answer questions, for
other administrative and business reasons, or because of personal interest. The same
could be said for any bookseller, news vendor, or librarian.

2-69 DEFAMATION 2.03[3]

or her attorney. Whatever the precipitating cause may be, once an
OSP has reason to know of the defamatory nature of third party con-
tent stored on its computer, it is subject to liability for ?republishing?
the material under the common law of libel if it then permits the
material to be retransmitted to its users.?

Being ?subject to liability,? however, is not the same as being
?liable.? Even if a message republished by an OSP is in fact both
defamatory and false, the OSP can avoid liability if the plaintiff fails
to establish that the OSP acted with the requisite degree of fault
regarding the message?s accuracy or if the OSP can establish that its
retransmission of the message was privileged.

[ij?Fault

If the plaintiff is a public ?gure, she must prove that the OSP repub-
lished the third party content with ?actual malice??that is, with
knowledge of falsity or with ?reckless disregard? of its accuracy.159
Application of the ?actual malice? standard gets tricky if the OSP only
had ?reason to know? of the material?s defamatory nature and not actu-
al knowledge of what the material said, since the ?reckless disregar 
standard assumes suf?cient knowledge of content to have ?serious
doubts? about its truth or to form a belief as to its ?probable falsity??0

?58 See: Lerman v. Distributing Co., Inc., 745 F.2d 123, 139 (2d Cir. 1984) (?At
the same time a distributor as an integral part of the movement of information from the
creator to the reader . . . cannot be entirely immune from liability. When a distributor
acts with the requisite scienter in distributing materials defarning or invading the priva-
cy of [another], it must be subject to liability?); N. 86 supra and accompanying text. An
OSP might not be subject to republisher liability for retransmissions that occurred after
it became aware of the material?s content but before it had a ?reasonable? time in which
to make and implement the decision to remove it from its system. See N. 48 supra and
accompanying text. The Communications Decency Act of 1996 (see N. 15.1 supra)
contains a provision that has been construed by the courts as immunizing an OSP from
liability even if it had knowledge of the material?s defamatory content at the time it was
transmitted to the OSP users. See infra.

15" New York Times Co. v. Sullivan, 376 vs. 254, 279-280, 84 710, 11
L.Ed.2d 686 (1964). See supra.

St. Amant v. Thompson, 390 U.S. 727, 731, 88 1323, 20 L.Ed.2d 262
(1968); Gam'son v. Louisiana, 379 US. 64, 74, 85 209, 13 L.Ed.2d 125 (1964).
See Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976) (discussed in text
accompanying N. 69 supra). In Spence v. 647 F. Supp. 1266 (D. Wyo. 1986),
the court addressed the issue, albeit in dicta, and concluded that ?in this context, both
phrases ?reason to know? and ?reckless disregard of the truth?? mean that though the
defendant may not have known the exact content of the allegedly libelous statement,
it knew enough about the statement so that it should have investigated the statement?s
truth before distributing, or continuing to distribute the publication.? 647 F. Supp. at
1273. See generally, Harte-Hanks, Inc. v. Connaughton, 491 US. 657, 686, 692, 109
2678, 105 L.Ed.2d 562 (1989) (the ?meaning? of such ?elusive constitutional
standards? as ?actual malice" and ?reckless disregard? is not ?readily captured in ?one
infallible de?nition?? and, while ?failure to investigate will not alone support a ?nd-
ing of actual malice, the purposeful avoidance of the truth is in a different category?).
(Citations omitted.) 

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2?70

If the plaintiff is a private ?gure, most states would require her to
prove that the OSP was negligent?-?that is, that if it had exercised
?reasonable care? it would have known that the statement it republished
was false.?1 In most cases, howeverposition to
undertake its own ?investigation? to ascertain whether a third party
statement?one that it knows is defamatory?is true or false. If the OSP
is aware of the defamatory third party statement but has no knowledge
as to whether it is true or false, does the negligence standard require it
to take any steps to verify the statement?s accuracy?

If the author of the defamatory statement is known to the OSP to
be reliable, there is reason to believe that courts will reject any claim
that the USPS failure to conduct its own investigation of the state-
ment?s accuracy was negligent.?52 While such a rule might protect the
OSP from liability for defamatory statements contained in databases
of established and generally reliable publications, it would have little
relevance to bulletin board postings by the users, the reliabili-
ty of whom the OSP typically has no knowledge. There is language
in some cases that suggests that an OSP who conducts no investiga-
tion into the truth of a republished statement would be subject to lia-
bility only if it had substantial reason to believe that the defamatory
statement was in fact false.163 If such a doctrine is viable, however, it
is more likely to develop as common law privilege.

See N. 55 supra and accompanying text. In the context of a
?professional disseminator of news,? there is disagreement among various states as to
whether the proper referent in determining whether the defendant acted with
?reasonable care? is the ?customs and practices within the profession? or, instead,
?what a reasonably prudent person? would have done in the same circumstances. See:
Sack, Libel, Slander; and Related Problems, 5.9.1.2, at 344-346 (2d ed. 1994);
Restatement (Second) of Torts, 5808, comment (1977).

?2 See, 

Sixth Circuit: O?Brien v. Williamson Daily News, 735 F. Supp. 218, 225 (ED. Ky.
1990), aff?d 931 F.2d 893 (6th Cir. 1991) (?to impose upon a news organization the
requirement that it independently verify the accuracy? of reports received from established
wire services ?would be to impose a duty of extraordinary care, not ordinary care?).

State Courts:

New York: Weiner v. Doubleday Co., Inc., 74 586, 550 251,
251 (1989) (in private??gure action, book publisher entitled to rely on
research of ?established writer?); Karaduman v. Newsday, Inc., 51 531, 416
557, 566-567 (1980) (publisher of book containing previously published
newspaper articles entitled to rely on research of newspaper?s reporters).

1?53 See, e.g:

First Circuit: Geiger v. Dell Publishing Co., lnc., 719 F.2d 515, 518 (lst Cir.
1983) (applying New York?s ?gross irresponsibility? standard) (?We do not agree with
appellant that the injurious nature of the statements is itself a ?substantial reason' to
question their accuracy; instead, the publisher must have some reason to believe the
statements are untrue?).

District of Columbia Circuit: McBride v. Merrell Dow and Pharmaceuticals, Inc.,
613E Supp. 1349, 1356-1357 (D.D.C. 1985), a??d in relevant part on other grounds

2-71 DEFAMATION 2.03[3]

[iiJ?Privilege to Provide Means of Publication

The Restatement recognizes a common law, conditional privilege
for one who ?provides a means of publication of defamatory matter
published by That person?s conduct is privileged if the
original publisher ?is privileged to publish? the matter or if that person
?reasonably believes? that the original publisher is privileged, ?even
though in fact he is not.?165 The purpose of the privilege ?is to make it
possible for those who have a privilege to publish defamatory matter to
?nd a means of publication without which the privilege would be of
little or no use to them.?166

The privilege provides little protection for one who disseminates third
party content to the public. Although the Restatement indicates that it
applies to a newspaper that prints ?a letter to the editor? and to a broad-
caster ?providing time on the air,?167 there do not seem to be any cases
discussing the privilege in those contexts, nor is that surprising. Any

800 F.2d 1208 (DC. Cir. 1986) (corporation not liable for republication where cor-
porate employees who sent copies of defamatory article to American Medical Asso?
ciation had no reason to know article was false).

State Courts:

California: Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 200 Cal. Rptr. 674
(1984) (adult bookstore owners selling video with defamatory cover never "informed
that the libelous statement" on the cover "was untrue").

Restatement (Second) of Torts, 612(1) (1977).

?5 Id, and comment d. See Keeton. Prosser and Keeton on the Law
of Torts, 113, at 811 (5th ed. 1984) (privilege ?applies despite awareness on the
part of the disseminator that the communication is both false and defamatory and is
therefore a much broader privilege than the constitutional or quali?ed privilege of the
primary publisher"). But see, Restatement (Second) of Torts, 612, comment (1977)
(?If the person supplying the means of publication knows of the falsity or has serious
doubts as to the truth, he may well be under a duty to bring his knowledge or doubts to
the attention of the holder of the original privilege and thus affect the continued
existence of the original privilege. A failure to do this might be treated as an abuse of
his own privilege?).

1a., comment a. See, Youmans v. Smith, 153 NY. 214, 222, 47 NE. 265,
267 (1897) (discussed in N. 103 supra) (attorney could ?employ" a ?printer with a
printing press? to do ?[w]hatever he could lawfully do himself in preparing for trial?
and the ?privilege that protected him also protected his agents and employees in
whatever they did at his request?).

'67 ld., comment (the rule ?applies to a newspaper that prints an article or a letter
to the editor, a radio or television broadcasting station. providing time on the air, a
ticker, teletype or other private wire service, a printer, or a stenographer who takes
dictation and who transcribes and mails the letter?). See, Howell v. Tribune Enter-
tainment Co., 106 F.3d 215, 221 (7th Cir. 1997) (producer of taped television talk show
entitled to assert the privilege afforded by law to a participant on the show to defend
herself by making statements attacking the credibility of her attacker, even though her
statements invaded the privacy of the attacker).

(Rel. 9)

 2.03[3] INTERNET AND ONLINE LAW 2-72

privilege that encompasses publication to the general public would also
typically apply to the republisher, who does not need to rely on a sepa-
rate privilege to protect his conduct?? Those common law privileges
that would not apply directly to the republisher also do not apply to the
original publisher (or are considered ?abused?) when the defamatory
statement is published to persons not within the scope of the privilege.1m
Thus, a person who provides another with the means to publish a
matter to the general public typically has no ?reasonable? basis to
believe that the publication is protected by any privilege. The privilege
to provide the means of publication to another may have some signi?-
cance to an OSP, whose service may permit a user to circulate privileged
material only to a limited group of people who are all within the scope
of the user?s privilege."o

The privilege provides even greater protection to a ?public utility
under a duty to transmit messages,? who is privileged to do so, ?even if
it knows the message to be false and defamatory,? unless ?the agent who
transmits the message knows or has reason to know that the sender is
not privileged to publish 

Prior to the enactment of Section 509 of the CDA, there was con-
siderable discussion among commentators of the need for a much
broader privilege for those who disseminate works published by oth-
ers, and for OSPs in particular.?" In 1992, the National Conference
of Commissioners on Uniform State Laws considered, but did not
adopt, a standard that would immunize from republisher liability any

The separate privilege arguably would protect a newspaper publisher who
prints a defamatory letter to the editor if he ?reasonably believed" that the letter was
protected by the ?fair comment? privilege (which contemplates publication to the
general public, see N. 6] supra), even if the court ultimately decides that
the fair comment privilege did not apply.

1?9 See: McGranahan v. Dahar, 119 NH. 758, 408 A.2d 121, 124 (1979) (absolute
privilege for statements made in complaint does not apply to general circulation of the
document); Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984) (copies
of draft complaint given to reporter); Restatement (Second) of Torts, 604 (1977)
(?excessive publication" constitutes ?abuse" of conditional privilege).

See Ns. 39-40 supra and accompanying text (describing the
?common interest? privilege).

"1 Restatement (Second) of Torts, 612(2) (1977). See: O'Brien v. Western
Union Telegraph Co. 113 F.2d 539, 542?543 (lst Cir. 1940); Annot., ?Liability of
Telegraph or Telephone Company for Transmitting or Permitting Transmission of
Libelous or Slanderous Messages,? 91 1015 (1996). 

"2 See Keeton. Prosser and Keeton on the Law of Torts, 113, at 811 (5th ed.
1984) (?It would be rather ridiculous, under most circumstances, to expect a book-
seller or a library to withhold distribution of a good book because of a belief that a
derogatory statement contained in the book was both false and defamatory of the
plaintiff?). Contrast Johnson and Marks, ?Mapping Electronic Data Communications
into Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts)
Be Our Guide?? 38 Vill. L. Rev. 487, 494 (1993) (applying secondary publisher rule
to OSP ?could be disastrous for the growth of electronic data communications" by
demanding ?that the sysop choose between operating a system and not participating

2-73 DEFAMATION 2.03[3]

?library, archive, or similar information retrieval or transmission service?
that provides access ?to information originally published by others,? if it
is not ?reasonably understood to assert in the normal course of its busi-
ness the truthfulness of? such information or if it ?takes reasonable steps
to inform users? that it makes no such assertion??

Use of Independent Contractors to Manage Third
Party Content

Some of the larger OSPs delegate the responsibility of managing
various segments of their service to independent contractors, whose
responsibilities typically include assembling the content of the seg?
ment?s databases and monitoring the messages posted by users on the
segment?s bulletin boards to ensure compliance with the gen-
eral standards and policies. By contracting with a third party to
administer a particular area of its service, an OSP is unlikely to learn
of the defamatory nature of a particular publication in that area and
thus become subject to liability for any further retransmissions of it
unless the matter is speci?cally brought to its attention by a com-
plaining party. The independent contractor might become subject to
liability for permitting defamatory third party content to be retrans?
mitted after acquiring knowledge of its content in the course of
administering his segment of the service. The OSP, however, would
not be ?vicariously liable? for the independent contractor?s knowledge
or conduct, so long as he was not acting as the USPS ?agent? at the
time he permitted the retransmission of the defamatory publication.?74

in it, or operating a system, participating in it, and taking his chances with liability?),
with Becker, ?The Liability of Computer Bulletin Board Operators for Defamation
Posted by Others,? 22 Conn. L. Rev. 203, 229 n.86 (1989) (?Allowing liability only
for continued dissemination after the has knowledge of the defamatory
character of the material is a reasonable balance of the competing interests").

173 See Penitt, ?Tort Liability, the First Amendment, and Equal Access to Elec-
tronic Networks,? 5 Harv. J.L. Tech. 65, 108 (1992). A broader, federal statutory
privilege has since been created by the Communications Decency Act of 1996. See:
N. 15.1 supra, infra.

"4 See Secord v. Cockbum, 747 F. Supp. 779, 787 (one. 1990) (?actual malice?
cannot be ?imputed from one defendant to another absent an employer-employee
relationship giving rise to respondeat superior? liability; book editor and publisher not
vicariously liable based on actual malice of author who was ?an independent contrac-
tor?). See generally: Community for Creative Non-Violence v. Reid, 490 US. 730, 739-
740, 109 2166, 104 L.Ed.2d 811 (1989) (?In determining whether a hired party is
an employee under the general law of agency, we consider the hiring party?s right to
control the manner and means by which the product is accomplished??listing twelve
factors relevant to that inquiry); Nationwide Mutual Insurance Co. v. Darden, 503 US.
318, 112 1344, 117 L.Ed.2d 581, 590 (1992) (?Since the common-law test
contains ?no shorthand formula or magic phrase that can be applied to ?nd the answer,

. all of the incidents of the relationship must be assessed and weighed with no one
factor being decisive??); Restatement (Second) of Agency 220(2) (1958).

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2-74

In Cubby, the court determined that CompuServe did not exercise
suf?cient control to create such an agency relationship with the inde-
pendent contractor who managed the Joumalism Forum, and thus held
that CompuServe was not vicariously liable for any role the manager
might have had in publishing the defamatory statements.?5 The court
in Stratton Oakmont reached the opposite conclusion, holding that
Prodigy exercised suf?cient control and direction over the Board
Leader?s actions to make him Prodigy?s ?agent,? at least ?for the lim-
ited purpose of monitoring and editing? the bulletin board on which
the defamatory messages had been posted."?

[??The Communications Decency Act of 1996

On February 8, 1996, the Telecommunications Act of 1996 was
signed into law. Title of that Act is the Communications Decency
Act (the The CDA makes it a federal crime to use ?an inter-
active computer service? to send or display in a manner available to
a minor any indecent material or to knowingly permit a service under
one?s control to be used for such activity."" At the same time, the

"5 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135, 142-143 (S.D.N.Y. 1991).
The court found that CompuServe?s ?ultimate right? to ?remove text from its system
for noncompliance with its standards merely constitutes control over the result of? the
manager?s ?independent wor level of control ?insuf?cient to rise to the level of
an agency relationship.? 776 F. Supp. at 143.

17? Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA)
1794, 1799 (NY. Sup. May 25, 1995).

"7 Communications Decency Act of 1996, reprinted in 142 Cong. Rec. H1099-
H1102 (daily ed. Ian. 31, 1996).

"8 Communications Decency Act of 1996, 502(2) (to be codi?ed at 47 U.S.C.
223(d)), reprinted in 142 Cong. Rec. H1099 (daily ed. Jan. 31, I996). The provisions
of the CDA restricting indecent online communications are discussed in Chapter 4 infra.
The CDA de?nes ?interactive computer service? to mean ?any information service, sys-
tem, or access software provider that provides or enables computer access by multiple
users to a computer server, including speci?cally a service or system that provides access
to the lntemet and such systems operated or services offered by libraries or educational
institutions.? 509 (to be codi?ed at 47 U.S.C. reprinted in 142 Cong.
Rec. H1101 (daily ed. Jan. 31, 1996). See:

Fourth Circuit: Truelove v. Mensa International Ltd, No. PJM 97-3463, available
online at (D. Md. Feb. 10,
1999) (mail list operator was ?provider? of ?interactive computer service? entitled to
immunity under 

Seventh Circuit: Does v. Franco Productions, 2000 US. Dist. LEXIS 8645, *12-
*16 (ND. Ill. June 22, 2000) (OSPs that provided ?web hosting? services, ?which
enable someone to create a web page? that offers tortious material for sale, were
?providers" of an ?interactive computer service? entitled to immunity under Section
230(c)(1) from liability for third-party content posted on the Web sites they hosted).

State Court:

Ohio: Sabbato v. Hardy, 28 Media L. Rep. (BNA) 1575, 1576 (Ohio C.P. Feb. 22,
2000) (defendant, who ?designed and controls an intemet website," was a ?provider?
of an ?interactive computer service" entitled to immunity under Section 230(c)(1) for
content posted on the Web site ?by third-party users? of the Web site).

2-75 DEFAMATION 2.03[3]

CDA declares that is the policy of the United States? to ?remove
disincentives for the development and utilization of blocking and 
tering technologies that empower parents to restrict their children?s
access to objectionable or inappropriate online Pursuant
to that policy, the CDA amended Title 47 of the United States Code
by adding Section 230(c), entitled ?Protection for ?Good Samaritan?
Blocking and Screening of Offensive Material.?130 Paragraph (1) of
Section 230(c) provides:

OF PUBLISHER OR provider
or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another infor-
mation content provider.?181

Paragraph (2) of Section 230(c) provides that no provider or user of
an interactive computer service shall be subject to civil liability ?on
account of any action taken voluntarily in good faith to restrict access
to or availability of? online material that the user or provider consid?
ers to be ?objectionable.?182

Congress enacted Section 230(c) for the express purpose of over-
ruling Stratton Oakmont v. Prodigy, which held that Prodigy was the
?publisher? of a defamatory comment posted on its bulletin board by
an unknown user in part because Prodigy had used board leaders and
screening software to delete messages from its boards ?on the basis
of offensiveness and ?bad In the conference report on the
CDA, Congress stated:

"9 Communications Decency Act of 1996, 509 (to be codi?ed at 47 U.S.C.
reprinted in 142 Cong. Rec. H1100 (daily ed. Jan. 31, 1996).

18" Id. (to be codi?ed at 47 U.S.C. 230(c)), reprinted in 142 Cong. Rec. 
H1101 (daily ed. Jan. 31, 1996).

Id. (to be codi?ed at 47 U.S.C. reprinted in 142 Cong. Rec.
H1101 (daily ed. Jan. 31, 1996).

?82 Id. (to be codi?ed at 47 U.S.C. reprinted in 142 Cong. Rec.
H1100-H1101 (daily ed. Jan. 31, 1996). Similar protection is afforded by Section
502(2) of the CDA (to be codi?ed at 47 U.S.C. 223(f)(1)) (?No cause of action
may be brought in any court? against any person ?on account of any activity that is
not in violation of any law punishable by criminal or civil penalty, and that the per-
son has taken in good faith to implement a defense authorized under [Section 223]
or otherwise to restrict or prevent the transmission of? indecent online communica-
tions), reprinted in 142 Cong. Rec. H1099-1100 (daily ed. Jan. 31, 1996). In the con-
ference report that accompanied the CDA, Congress stated: ?Subsection 223(f)(l),
supplements, without in any way limiting, the ?Good Samaritan? liability protections
of new Section 230.? Telecommunications Act of 1996, Joint Explanatory Statement
of the Corrnnittee of Conference, at 72, reprinted in 142 Cong. Rec. H1107, H1129
(daily ed. Jan. 31, 1996).

Stratton Oakmont v. Prodigy Services Co., 23 Media L. Rep. (BNA) 1794,
1797 (N.Y. Sup. May 25, 1995). See supra.

(Rel. 10)

 2.03[3] INTERNET AND ONLINE LAW 2-76

?One of the speci?c purposes of [Section 230(c)] is to overrule
Stratton-Oakmont v. Prodigy and any other similar decisions which
have treated such providers and users as publishers or speakers of
content that is not their own because they have restricted access to
objectionable material. The conferees believe that such decisions
create serious obstacles to the important federal policy of empow-
ering parents to determine the content of communications their
children receive through interactive computer 

Accordingly, OSPs now enjoy a federal statutory defense to defama-
tion liability for transmitting third party content. Indeed, because the
common law of defamation imposes liability on a defendant only if he
?publish the defamatory statement,185 Section 230(c)(1) completely
immunizes an OSP from defamation liability for content on its service
that was ?provided by? another ?information content provider,? such as
an OSP user.186 Moreover, this statutory immunity probably applies to
similar state law claims that are based on the dissemination of
third party content, such as invasion of privacy, fraud, negligent misrep-
resentation, tortious interference with business, or breach of contract?"

184 Telecommunications Act of 1996, Joint Explanatory Statement of the Com-
mittee of Conference, at 75, reprinted in 142 Cong. Rec. H1107, H1130 (daily ed.
Jan. 31, 1996).

185 See Ns. 15-17 supra and accompanying text.

186 Communications Decency Act of 1996, 509 (to be codi?ed at 47 U.S.C. 
reprinted in 142 Cong. Rec. H1100 (daily ed. Jan. 31, 1996). The CDA
de?nes ?information content provider? to mean ?any person or entity that is respon-
sible, in whole or in part, for the creation or development of information provided
through the Internet or any other interactive computer service.? Id. (to be codi?ed at
47 reprinted in 142 Cong. Rec. H1101 (daily ed. Jan. 31, 1996).

See, 

Tenth Circuit: Ben Ezra, Weinstein Co. v. America Online, Inc., 206 F.3d 980
(10th Cir. 2000), cert. denied 121 69 (2000) (af?rming summary judgment
against plaintiff?s fraud, negligence, and defamation claims against AOL arising out
of inaccurate information about plaintiff?s stock on AOL bulletin board; court held
that action was preempted by 230(c)(1), notwithstanding company?s effort to
repackage it as a negligence claim, because it attempted to hold AOL liable for the
?publication" of information from third party information content providers).

State Court:

Florida: Doe v. America Online, 718 So.2d 385, 1998? Fla. App. LEXIS 12841
(Oct. 14. 1998) (affirming trial court?s dismissal of claims against AOL for negli-
gence and violation of state obscenity and child pornography statutes; court held that
230(c)(1) preempts plaintiff?s claims against AOL for ?allowing? an AOL user to
post sexually explicit images of the plaintiff?s minor son in an AOL chat room; court
further held that questions regarding the application of 230 ?to be of great public
importance? and therefore certi?ed three questions to the Florida Supreme Court,
including ?whether a computer service provider with notice of a defamatory third
party posting is entitled to immunity under? 230).

2-76.1 DEFAMATION 2.03[3]

although another subsection expressly provides that the immunity pro-
vided by Section 230(c) does not apply to any federal criminal statute

Text continued on page 2-77)

Washington: Jerome Schneider v. Amazon.com, Inc., 2001 Wash. App. LEXIS
2086 (Sept. 17, 2001) (online bookseller with an open community book review
service was held to be a provider of an ?interactive computer service? and not an
?information content provider? for purposes of 230(t), with immunity under
230(c)(1) applicable to claims of negligent misrepresentation, tortuous interference
with business expectancy, and breach of contract).

(Rel. 10)

2-77 DEFAMATION 2.03[3]

or to any ?law pertaining to intellectual property,? such as copyrights
or trademarks.188

The scope of this absolute, statutory immunity to liability for OSPs
that distribute tortious third party content will depend on how the
courts construe the phrase ?provided by? in Section 230(c)(1), a
phrase that is not de?ned by the statute and for which there is no
direct legislative history explaining its meaning. The issue is: in what
circumstances will courts rule that a defamatory statement, authored
by a third party, was effectively adopted by the OSP as its own and
thus was ?provided by? the OSP, rather than by ?another information
content provider,? for purposes of Section 

Section 230(c) obviously repudiates the erroneous reasoning of the
Stratton Oakmont decision, reaffirming the common law and First
Amendment principle that a distributor of third party material cannot be
subjected to civil or criminal liability based on the unlawful content of
that material if the distributor had no knowledge nor any reason to know
of that content.? The language of Section 230(c)(1), however, makes
no distinction between an OSP that has no knowledge of defamatory
material on its site and one that does have such knowledge. Construed
literally, it provides absolute immunity to an OSP that permits third party
material to remain on its system even after it knows that the material is
there and that it is defamatory, false, and not privileged, and even if the
OSP is the only entity with the power to remove it from its site. There
is no precedent in the common law for such total immunity from liabil?
ity for the knowing dissemination of defamatory content,191 nor is there
any express statement in the legislative history that Congress
intended such a result.?2

Nevertheless, the Fourth Circuit has ruled that Section 230(c)(1)
does indeed immunize an OSP from liability for a defamatory mes-
sage posted by an user even when the OSP has received notice

1? Communications Decency Act of 1996, 509 (to be codi?ed at 47 use.
reprinted in 142 Cong. Rec. H1100-H1101 (daily ed. Jan. 31, 1996).

See Zeran v. American Online, Inc., 958 F. Supp. 1124, 1133?1134 n. 20 (ED.
Va. 1997), ajf?d 129 F.3d 327 (4th Cir. 1997) (?there is no occasion here to consid-
er whether, under some set of facts, information initially placed online by a third
party, might be deemed to be information provided by the service provider itself,
thereby rendering [Section] 230(c) inapplicable?). See generally: Tacket v. General
Motors Corp., 836 F.2d 1042, 1046?1047 (7th Cir. 1986) (company deemed to have
?adopted? and was thus the ?publisher" of defamatory graf?ti that remained on
manufacturing plant?s wall for seven months); supra.

19" See and supra.

But see, Farmers Educational and Cooperative Union of America v. WDAY,

lnc., 360 US. 525, 531-534, 79 1302, 3 L.Ed.2d 1407 (1959) (discussed at N.
54 supra).

?2 See Zeran, N. 189 supra, 958 F. Supp. at 1133-1134 It. 20.

(Rel. 8)

 2.03[3] INTERNET AND ONLINE LAW 2-78

of the message and chosen not to remove it from its service. In Zeran
v. America Online, Inc.,193 an AOL user posted a series of offensive
advertisements on an AOL bulletin board that fraudulently identi?ed
Zeran as the source of the advertisements. AOL removed the ads when
they were brought to its attention, but the ads continued to reappear on
its service over a period of several days, subjecting the plaintiff to
harassing telephone calls and death threats from people offended by
the ads. The plaintiff sued AOL for ?negligence? in the ?distribution?
of the ads, arguing that AOL should have removed the ads more
quickly and that AOL, after receiving notice of the ?rst ad, should
have blocked all subsequent postings on its service that contained the
plaintiff ?8 phone number.194

The plaintiff argued that Section 230(c)(1), which was enacted after
the ads appeared but before he sued AOL, did not preempt his action
because he sought to impose liability on AOL as a ?distributor,? but
not the ?publisher,? of the ads. The district court rejected the argument,
observing that the common law of defamation, ?properly understood,?
imposes liability on a distributor of defamatory information only when
it ?treats a distributor as a ?publisher? of third party statements,? that
is, ?where the distributor knew or had reason to know that the
statements were defamatory.?195

The court held that the plaintiff?s action was preempted by federal
law, because his ?attempt to impose distributor liability on AOL is, in
effect, an attempt to have AOL treated as a publisher of the defamatory
material,? which is contrary to Section 

The Fourth Circuit af?rmed and, in so doing, expressly rejecting
the plaintiff?s claim that Section 230(c)(1) did not preempt liability
for conduct by AOL after it had received notice of the defamatory
content on its bulletin board. The court found that such ?notice-based
liability? would be contrary to the policy choice made by Congress,
which was to minimize government interference with the ?robust
nature? of communication over the Internet, including the indirect

?93 Zeran v. America Online 129 F.3d 327 (4th Cir. 1997), cen. denied 141 1.13:1.
2d 712 (1998), a??irming 958 F. Supp. 1124 (ED. Va. 1997).

194 1d,, 129 F.3d at 329-330; Carome, ?Don?t Sue the Messenger: New Immunity
for Online Service Providers,? Legal Times, at p. 25 (April 21, I997). Zeran also ?led
a separate lawsuit against a radio station for broadcasts that described Zeran as the
source of the offensive online advertisements. See Zeran v. Diamond Broadcasting,
Inc., No. 3 ECLR 18 589 (W.D. Okla, Dec. 29, 1997) (dismissing
defamation and false light claims on grounds that no injury to reputation and no
?reckless? conduct by the defendants was established).

Zeran, N. 189 supra, 958 F. Supp. at 1133. See Ns. 15-17, 24-31 supra and
accompanying text.

19? Zeran, N. 189 supra, 958 F. Supp. at 1133.

2-79 DEFAMATION 2.03[3]

?self regulation? by ?intermediaries? that would occur if OSPs were
subject to liability any time someone provided them with notice of a
potentially defamatory statement.?7

Neither the district court nor the Fourth Circuit in Zeran discussed
whether circumstances other than an OSP merely refusing to remove
a defamatory third party message after receiving notice of it might
justify treating the message as having been ?provided by? the OSP for
purposes of Section 230(c)(1). Future litigation over the scope of Sec-
tion 230(c)(1) may focus on, for example, whether it applies when an
OSP had contracted with the third party to provide the content that the
plaintiff claims to be defamatory, when an OSP plays a more active
role in packaging, re?packaging, or promoting the allegedly defama-
tory third party content, or when an OSP claims a copyright or other
ownership interest in such content.198

Many of these issues were implicated in a case brought by a White
House assistant and his wife based on defamatory statements in a
gossip column authored by Matt Drudge.199 Pursuant to a licensing
contract with AOL, Drudge had e-mailed his gossip column to AOL,
which in turn had placed it on online service for review by
AOL subscribers. The plaintiffs sued both Drudge and AOL for libel,
but the trial court held that the claim against AOL was barred by Sec-
tion 230(c)(1). In so holding, the court found it dispositive that AOL
had no ?role in creating or developing any of the information in? the
column, even though AOL had a contractual right to edit the column
and even though AOL had promoted the column on its service.200 The

?97 Zeran, N. 193_ supra, 129 F.3d at 331-333. The court observed that if an 05?
were subject to ?notice?based liability," each notice of a potentially defamatory state-
ment on its service ?would require a careful yet rapid investigation,? a ?legal judgment?
as to its defamatory nature, and ?an on-the-spot editorial decision whether to risk
liability by allowing? continued publication. Id., 129 F.3d at 333. ?Although this might
be feasible for the traditional print publisher, the sheer number of postings? on OSPs
?would create an impossible burden in the Internet context.? Id. Moreover, the court
observed that, because OSPs ?would be subject to liability only for the publication of
information, and not for its removal, they would have a natural incentive simply to
remove messages upon noti?cation, whether the contents were defamatory or not.? Id.
The court concluded that the resulting ?chilling effect on the freedom of Internet
speech? would be ?directly contrary to [Section] 230?s statutory purposes.? Id. For a
critical analysis of the Fourth Circuit?s decision in Zeran, see I. Ballon; ?Zeran AOL:
Why the Fourth Circuit Is Wrong,? 1 J. Internet L. 6 (March 1998).

198 See N. 19 supra.

1? Blumenthal v. Drudge, 992 F. Supp. 44 (one. 1998).

Id., 992 F. Supp. at 50. license agreement with Drudge gave AOL the
right ?to require reasonable changes to . . . content, to the extent that such content
will, in good faith judgment, adversely affect operations of the AOL netw0rk.?
Id., 992 F. Supp. at 51. AOL promoted the availability of Drudge?s column on its ser-
vice with a press release, captioned: Hires Runaway Gossip Success Matt
Drudge,? in which it stated that ?maverick gossip columnist Matt Drudge has teamed

(Rel. 12)

 2.03[3] INTERNET AND ONLINE LAW 2?80

court indicated that, were it ?writing on a clean slate,? it would not
permit AOL ?to tout someone as a gossip columnist or rumor monger
who will make such rumors and gossip ?instantly accessible? to AOL
subscribers? and then ?claim immunity when that person, as might be
anticipated, defames another.?ml The court concluded, however, that
Congress intended Section 230(c)(1) to afford AOL immunity in
these circumstances.202

In those cases in which the parties dispute whether the OSP defen?
dant is entitled to the statutory immunity afforded by the CDA, at least
one court has held that the OSP is entitled to a stay of discovery on all
other issues in the case while the parties litigate the issue of Section
applicability.203 That court found that ?Congress?[s] grant of
immunity to interactive computer service providers, such as AOL, w[as]
intended to afford a special protection to this unique electronic medium?
and that the policy considerations for this protection, ?as enunciated in
Zeran,? are ?similar? to those for the quali?ed immunity provided to
government of?cials in Section 1983 cases, which protects them not
only from liability but also from ?the other burdens of litigation,? such
as ?the burdens of broad reaching discovery.?204

up with America Online? and that ?[g]iving the Drudge Report a home on America
Online . . . opens up the ?oodgates to an audience ripe for Drudge?s brand of report-
ing.? Id., 992 F. Supp. at 51.

201 Id., 992 F. Supp. at 51. See generally: Restatement (Second) of Torts, 581,
comments and (1977); Ns. 87-89 supra and accompanying text.

202 Blumenthal v. Drudge, 992 F. Supp. 44, 51?52 (D.D.C. 1998) (?Because it has
the right to exercise editorial control over those with whom it contracts and whose
words it disseminates, it would seem only fair to hold AOL to the liability standards
applied to a publisher or, at least like a book store owner or library, to the liability
standards applied to a distributor. But Congress has made a different policy choice
by providing immunity even where the interactive service provider has an active,
even aggressive role in making available content prepared by others. In some sort of
tacit quid pro quo arrangement with the service provider community, Congress has
conferred immunity from tort liability as an incentive to Internet service providers to
self-police the Internet for obscenity and other offensive material, even where the
self-policing is unsuccessful or not even attempted?). See Carafano v.
Metrosplash.com, Inc., 207 F. Supp.2d 1055, 1068 (CD. Cal. 2002) (recognizing
potential liability of ?interactive computer service? provider if it acts as an ?infor-
mation content provider?).

203 Ben Ezra, Weinstein Co. v. America Online, Inc., No. 97-485, 26
Media L. Rep. (BNA) 2211 (D.N.M. July 16, 1998).

Id. at 2212?2213, quoting Mitchell v. 472 US. 511, 526, 105 
2806, 2815, 86 L.Ed.2d 411 (1985), (quoting Harlow v. Fitzgerald, 457 US. 800,
818, 102 2727, 2738, 73 L.Ed.2d 396 (1982)).

2-301 DEFAMATION 2.03?]

of First Amendment Doctrines to Online
Speech

[a]?Definition of a ?Public Figure?

Applying Gertz, courts generally de?ne two categories of ?public
figures??the ?pervasive? or ?all-purpose? public and the
?vortex? or ?limited?purpose? public ?gure, which refers to people

(Text continued on page 2-81)

Carafano v. Metrosplash.com, Inc., 207 F. Supp.2d 1055, 1073 (CD. Cal.
2002) (recognizing actress as ?public ?gure? and dismissing on the basis that plain?
tiff did not establish by clear and convincing evidence a genuine issue of material
fact as to whether defendant acted with actual malice).

(Rel. 12)

2-81 DEFAMATION 2.03[41

who have ?thrust themselves to the fore-front of particular public con?
troversies in order to in?uence the resolution of the issues involved.?205

This de?nition raises two key questions??Is there a public controver-

sy?? and ?Has the plaintiff played a suf?ciently central role in the
controversy??m?that are likely to generate contentious litigation in the
online context.?

Courts addressing the ?rst question have for the most part centered
more on whether an issue constitutes a ?controversy,? not whether it is
?public.?08 The concept of a ?virtual? community of OSP users, how?
ever, makes the question whether a controversy is ?public? one on which
defendants and plaintiffs are likely to have different views??

In analyzing the second question, whether the plaintiff played a
suf?ciently central role in the controversy, courts have focused on

?5 Gertz v. Robert Welch, Inc., 418 US. 323, 345, 94 2997, 41 L.Ed.2d
789 (1974). See text accompanying N. 52 supra.

Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-1298 (DC.
Cir.), cert. denied 449 US. 898 (1980).

207 Indeed, it already has. Many of the ?public ?gure? issues in the online context
were implicated, and briefed, in Suarez Corp. Industries v. Meeks, Civ. No. 267513
(Comm. Pl., Cuyahoga Co., Ohio 1994), but the case was settled before any decision
was reached by the court. See: ?News, Culture, Controversy on the Internet,? Time, at
20 (Sept. 5, 1994); Resnick, "Cybertort: the New Era,? National Law Journal, at A1 (July
18, 1994). See generally, Note, ?Catching Jelly?sh in the Internet: The Public-Figure
Doctrine and Defamation on Computer Bulletin Boards,? 21 Rutgers Comp. Tech.
LJ. 461 (1995).

2?08 See, Waldbaum v. Fairchild Publications, Inc., N. 181 supra, 627 F.2d at
1297 (that public has some interest in story does not establish a ?public controversy?;
it must be ?a dispute that in fact has received public attention because its rami?cations
will be felt by persons who are not direct participants?).

209 Under the common law ?fair comment? privilege, which protects commentary
on matters of ?public concern? or ?public interest,? see N. 6] supra, it
is not necessary for the subject to be of interest to the entire community, so long as
a substantial sector of the community is concerned.

Arizona: Klahr v. Winterble, 4 Ariz. App. 158, 418 P.2d 404 (1966).

California.- Maidman v. Jewish Publications, Inc., 54 Cal. 2d 643, 7 Cal. Rptr.
617, 621, 355 P.2d 265 (1960).

Mississippi: Reaves v. Foster, 200 So.2d 453 (Miss. 1967).

A similar issue arises in the context of all-purpose public ?gures. See National Life
Insurance Co. v. Phillips Publishing, Inc., 793 F. Supp. 627, 633-634 (D. Md. 1992)
(plaintiff was not an all-purpose public ?gure where its pervasive in?uence was within
Vermont but defendant?s publication was national). See Bunker and Tobin, ?Pervasive
Public Figure Status and Local or Topical Fame in Light of Evolving Media Audiences,?
75 Journalism Mass Communications Q. 112, 121 (Spring 1988) (?The logic that has
compelled some lower courts to recognize geographic ?local? public ?gures seems equal-
ly to point toward recognition of public ?gures whose ?locale? is cultural rather than
geographic. Particularly in an age in which cultural space may become as important as
physical space, with the boundaries of a ?culture? being informed by the media in which
the libel is disseminated, recognition of tepical pervasive public ?gures can only add to
the uninhibited debate Sullivan and its progeny sought to advance?).

(Rel. 8)

 2.03[4] INTERNET AND ONLINE LAW 2-82

factors discerned from language used in Supreme Court opinions that
one court distilled into three inquiries: ?rst, the extent to which
participation in the controversy is voluntary; second, the extent to
which there is access to channels of effective communication in order
to counteract false statements; and third, the prominence of the role
played in the public controversy.210

As to ?voluntary participation,? if the plaintiff defamed by online
communication drew such defamatory comment as a result of her par-
ticipation in online dialogue, the concept of an ?internet culture? might
be applied to argue that she ?assumed the risk? of such commentary
when she ?rst entered the Internet door. And even if the plaintiff is an
Internet ?virgin,? the second inquiry regarding ?access to channels of
effective communication? is certain to be controversial in the context of
online defamation. In many cases, the plaintiff certainly would have
?access? to the same ?channel? of online communication through which
the defamatory statement was published.211 Whether access to that chan-
nel represents an opportunity for ?effective communication in order to
counteract false statements" is a more dif?cult question, and is arguably
in?uenced by whether the plaintiff?s communications on that channel
could attract the same level of attention from users as the defendant?s.

[b]?Definition of ?Media? and ?Private Speech?

The Supreme Court has expressly left open the question whether
the First Amendment requires a private-?gure plaintiff to prove the
falsity of the defamatory statement (Hepps and Milkovich) and ?fault?
on the part of the defendant (Gertz) when the defendant is not a mem-
ber of the ?media? and/or when his defamatory speech was not about
a matter of ?public concern.?212 With respect to the issue of a simple

Clark v. American Broadcasting Co., 684 F.2d 1208, 1218 (6th Cir. 1982),
cert. denied 460 US. 1040 (1983).

2? Compare Reuber v. Food Chemical News, Inc., 925 F.2d 703, 706-708 (4th
Cir.) (en bane), cert. denied 501 US. 1212 (1991) (scientist employed by National
Cancer Institute, allegedly defamed by reprimand letter republished in industry
newsletter, was public ?gure because he had access to same ?for where [his] reputa-
tion was presumably tarnished and where it could be redeemed?), with Greenberg v.
CBS, Inc., 69 693, 419 988, 994 (1979) (author of ?fty articles in
medical journals did not have suf?cient media access to be classi?ed as public ?gure
where defamatory statement was made on national network television). See general-
ly: Bunker and Tobin, ?Pervasive Public Figure Status and Local or Topical Fame in
Light of Evolving Media Audiences,? 75 Journalism Mass Communications Q. 112,
122 (Spring 1988); Godwin, ?The First Amendment in Cyberspace.? 4 Temple Pol. 
Civil Rights L. Rev. 1, 7?9 (1994) (arguing that, in cases of libel published on the
Internet, every defendant may qualify as a public ?gure in light of their access to the
same channel of communication).

2? See supra.

2-83 DEFAMATION 2.03[4]

?media/nonmedia? distinction among defendants entitled to these First
Amendment protections, there is good reason to believe that, if the
Supreme Court is faced with the question again, it will reject any such
distinction, as did at least ?ve of the Justices in the Dun Bradstreet
decision.213 Most courts and commentators agree that there is no
rational basis, under either the First Amendment or basic principles of
tort law, for extending First Amendment protections to allegedly
defamatory speech by a media defendant while denying such protections
for the same speech when made by a nonmedia defendant.214

Several years ago, the Second Circuit clearly rejected the notion that
an OSP engaged in the process of distributing news about the govern-
ment was entitled to lesser First Amendment protection in obtaining
access to such information than the traditional print and broadcast
media.? Indeed, any attempt to de?ne who is ?media? and who is not
is certain to raise ?First Amendment dif?culties.?216 As Justice Brennan

2?3 See N. 86 supra. See also: N. 81 supra and
accompanying text (most courts apply Gertz fault requirement to both media and non-
media defendants); Sack, Libel, Slander, and Related Problems (2d ed. 1995 Supp.) at
41-42 and n.39A (lower courts routinely apply Hepps in cases brought against nonmedia
defendants).

2" As Justice Brennan repeated in his Hepps concurrence, "?such a distinction is
irrecdncilable with the fundamental First Amendment principle that ?[t]he inherent worth
of . . . speech in terms of its capacity for informing the public does not depend upon
the identity of the source, whether corporation, association, union, or individual.?
Philadelphia Newspapers v. Hepps, 475 U.S. 767, 780, 106 1558, 89 L.Ed.2d 783
(1986) quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 
1407, 55 L.Ed.2d 707 (1978). (Brackets and ellipses by Justice Brennan.) See: Sack,
Libel, Slander; and Related Problems, 5.9.4.2, at 357-358 (2d ed. 1994);
?The Supreme Court, 1973 Term,? 88 Harv. L. Rev. 41, 148 n.52 (1974) (distinction
would be ?bizarre? under tort law principles of strict liability). But see, Denny v. Mertz,
106 Wis. 2d 636, 318 141, cert. denied 459 U.S. 883 (1982) (refusing to apply
Gertz to individual who made statement to magazine reporter but applying Gertz to
magazine publisher that printed the individual?s statement).

?5 Legi-Tech, Inc. v. Keiper, 766 F.2d 728 {2d Cir. 1985).

2? Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 782 and n.6,
105 2939, 86 L.Ed.2d 593 (1985) (Brennan, 1., dissenting). In Dun Bradstreet,
the Vermont Supreme Court characterized the credit reporting agency as ?nonmedia?
because it was ?in the business of selling ?nancial information to a limited number of
subscribers who have paid substantial fees for [its] services,? suggesting a ?clear dis-
tinction between a publication which disseminates news for public consumption and one
which provides specialized information to a selective, ?nite audience.? 143 Vt. 66, 73,
461 A.2d 414, 417 (1983). Justice Brennan rejected the distinction: ?That petitioner?s
information is ?specialized? or that its subscribers pay ?substantial fees? hardly distin-
guishes these reports from articles in many publications that would surely fall on the
?media? side of the line that the Vermont Supreme Court seeks to draw. Few published
statements are of universal interest, and few publications are distributed without charge.
Much fare of any metropolitan daily is specialized infonnation for which a selective,
?nite audience pays a fee." 472 U.S. at 782 n.6.

(Rel. 9)

 2.03[4] INTERNET AND ONLINE LAW 2-84

has noted, such a distinction is ?likely to be born an anachronism,?
given the ?increasing convergence? of the two categories as a result of
?transformations in the technological and economic structure of the
communications industry??

With respect to the issue of speech on private matters, however, the
Supreme Court, in Dun Bradstreet, has already held that the Gertz
limitation on presumed and punitive damages does not apply. Neverthe-
less, there is still reason to believe that the Gem. fault requirement and
the Hepps falsity requirement will not suffer the same fate.21$

In any event, determining when speech about private ?gures crosses
the line between matters of purely private concern and matters of
public concern is largely an ad hoc, subjective inquiry for which there
are few principled criteria available to the courts.219 Justice Powell?s
plurality opinion in Dun Bradstreet stated that the answer ?must be
determined by [the expression?s] content, form, and context . . . as
revealed by the whole record?? He concluded that the defendant
agency?s false report of the plaintiff ?8 bankruptcy was not about a
matter of public concern because (1) credit agency reports are ?unlike-
ly? to be ?chill[ed]? by libel suits because the speech is ?solely

2" Id, 472 US. at 782 and n.7. Accord, Flamm v. American Ass?n of University
Women, 201 F.3d 144, 149 (2d Cir. 2000) (quoting Justice Brennan?s ?anachronism?
argument agreeing ?that a distinction drawn according to whether the defendant is a
member of the media or not is untenable?). See generally: Berman and Weitzner,
?Abundance and User Control: Renewing the Democratic Heart of the First Amendment
in the Age of Interactive Media," 104 Yale LJ. 1619 (1995); Gibbons, ?Convergence in
Communications Technology and the First Amendment,? 25 Seton Hall L. Rev. 1375
(1995); Hammond, ?Regulating the Multi?Media Chimera; Electronic Speech Rights in
the United States,? 21 Rutgers Comp. Tech. LJ. (1995); Krattenmaker and Powe,
?Converging First Amendment Principles for Converging Communications Media,? 104
Yale LJ. 1719 (1995); Volokh, ?Cheap Speech and What It Will Do,? 104 Yale LJ.
1805, 1819-1831 (1995); Negroponte, Being Digital (1995).

2? See N. 75 supra. Moreover, many states have modi?ed their
common law of defamation in response to Gertz to require plaintiffs to prove both
fault and falsity. See Ns. 55-56 supra. Even if the Supreme Court
ultimately rules that the First Amendment does not require such modi?cations in the
context of private speech, the states might decide not to revert back to the old rules
of strict liability and presumption of falsity. See, N. 68 supra.

21? See Grossman v. Smart, 807 F. Supp. 1404, 1411 (on. 111. 1992).

?0 Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US. 749,761, 105
2939, 86 L.Ed.2d 593 (1985) (brackets and ellipses by Justice Powell), quoting
Connick v. Myers, 461 US. 138, 147-148, 103 1684, 75 L.Ed.2d 708 (1983)
(First Amendment limits ability to discharge public employee for objectionable
speech only when speech is of public concern).

2434.1 DEFAMATION 2.03[4]

motivated by the desire for pro?t? and credit reporting agencies already
have powerful market incentives to publish accurate reports, (2) it
was speech ?solely in the individual interest of the speaker and its spe-
ci?c business audience,? and (3) it did not further ?the free ?ow of
information? or ?debate on public issues? because it was sent to only
?ve subscribers who were contractually obligated not to disseminate it
to others??

(Text continued on page 2-85)

221 Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US. 749, 762-763,
105 2939, 86 L.Ed.2d 593 (1985).

(Rel. 9)

2-85 DEFAMATION 2.03[5]

These factors provide little guidance. News on public matters pub-
lished by the institutional media is also ?motivated by a desire for
pro?t? for publishers who have strong market incentives to publish
accurate information. And as Justice Brennan noted in dissent, the
bankruptcy of a local company is ?information of potentially great
concern to residents? of the local community.222 The same false report,
had it been published in the business section of the local newspaper,
probably would have been deemed ?of public concern.? Justice Pow-
ell noted that not ?all? credit reporting was outside the scope of Gertz,
suggesting that it was the limited and con?dential nature of the report?s
circulation in that case that made it a matter of private concern.223

If the media/nonmedia distinction has any meaningful role in the
application of the First Amendment to defamation law, it may be in
the context of determining whether speech is about a ?matter of pub-
lic concern? under Dun Bradstreet.? In that context, the ?institu?
tional? or ?mass? media may be distinguished from others, not with
respect to the identify of the defendant, but with respect to the nature
of the medium through which the defamatory statement is pub?
lished?that is, the ?form? and ?context? of the speech. Thus, speech
by an individual defendant that is circulated to the general public by
the institutional press the advertisement in the New York Times)
may be deemed ?of public concern,? whereas speech by an individual
thrdugh a medium of quite limited circulation the credit report
in Dun Bradstreet) may be deemed ?of purely private concern.? In
this context, the media/nonmedia distinction may have relevance in
determining the applicability of at least some First Amendment pro-
tections for OSP defendants.

[5]?Retraction Statutes

A retraction statute typically provides that a defamed party may, or
must, as a condition precedent to litigation, serve written notice on the

2? 1a., 472 vs. 789 (Brennan, 1., dissenting).

223 Id., 472 US. at 762 n.8. The dissent described this factor as ?crucial to the
outcome? reached by Justice Powell and as ?the linchpin? of his analysis.? 472 US.
at 786 n.12, 795 n.18.

224 Indeed, courts and commentators who have endorsed the distinction often justify
it by characterizing ?nonmedia? speech as concerning the type of ?private" matters that
Dun Bradstreet later held to be outside the scope of Gerrz. See, 

Colorado: Rowe v. Metz, 195 C01. 424, 579 P.2d 83 (1978).

Oregon: Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568
P.2d 1359 (1977).

Wisconsin: Calero v. Del Chem Corp, 68 Wis. 487, 506, 228 737, 748
(1975).

See Shiffrin, ?Defamatory Non-Media Speech and First Amendment Methodology,?
25U.C.L.A. L. Rev. 915, 935-936 (1978).

(Rel. 8)

 2.03[4] INTERNET AND ONLINE LAW 2-86

publisher of the defamatory statement and request a correction or
retraction. If a proper demand is not made, or if a proper retraction is
published within the speci?ed time limits, the type and amount of
damages that a plaintiff can recover from the defendant may be
limited."25 Of the thirty-three states that have enacted such statutes, only
eight apply to any defendant regardless of his connection with the
media?? The remainder typically apply only to the owner of ?a broad-
casting station? or the publisher of a ?newspaper?? while some also
apply to the publisher of a ?magazine? or ?periodical,?228 and still
others apply to ?those alleged to be responsible or liable? for defama-
tory matter published in a ?newspaper, magazine or periodical.?229
The latter type of statute was at issue in one case in which the
plaintiff sued an OSP user who had posted an allegedly defamatory
message on the bulletin board.?30 The trial court entered summa?
ry judgment against the plaintiff on the ground that bulletin board
communications were a ?periodical? under the Wisconsin retraction
statute and thus a demand for retraction was required before the
plaintiff could bring suit against the OSP user who posted the message.
The court of appeals reversed. It held that posting a bulletin board
message ?is a random communication of computerized messages
analogous to posting a written notice on a public bulletin board, not
a publication that appears at regular interval,? and thus bulletin board
messages ?are not periodicals under the ordinary meaning of the
term.?231 Perhaps wary that it was perched at the top of a very long

?5 See Sack, Libel, Slander; and Related Problems, 9.2, at 537 (2d ed. 1994).

226 The eight are Connecticut, Louisiana, Maine, Massachusetts, Michigan,
Nebraska, Texas and West Virginia. Id., 9.2, at 537 n.7. See id., Appendix 2
(compilation of statutes from all thirty-three states).

227 See, Ohio Rev. Code Ann. 2739.03, 2739.13-2739.l6.

See, Mont. Rev. Code Ann. 27-1?818 (1994).

229 Wis. Stat. Ann. 895.05(2) (1994). See also, Iowa Code 659.2 (1995) (statute
applies to libel in a ?newspaper, free newspaper or shopping guide?). See generally,
Annot, ?Libel and Slander: Who Is Protected by Statute Restricting Recovery Unless
Retraction Is Demanded,? 84 1249 (1978). In Werner v. Southern California
Associated Newspapers, 35 Cal. 2d 121, 216 P.2d 825, appeal dismissed 340 US. 910
(1950), the court upheld the constitutionality of a retraction statute that limited damages
only for newspapers and radio stations against a claim that it denied ?equal protection?
of the laws by not applying equally to all defamation defendants. But see, White v.
Manchester Enterprise Inc., 910 F. SUpp. 311 (ED. Ky. 1996) (state retraCtion statute
that applied only to ?newspapers? violated state constitution, which prohibits ?special
law,? because there is ?no rational basis for classifying newspapers differently from
magazines, newsletters or other print publications?).

23" It?s in the Cards Inc. v. Fuschetto, slip op. no. 94-3162, 1995 Wis. App. LEXIS
489 (April 11, 1995).

23? 14., 1995 Wis. App. LEXIS 489, at Hm. The court noted that it had previous-
ly held that the retraction statute (see N. 204 supra) ?relates only to libelous publications
in print media, not broadcast media. The nature of bulletin board postings on computer
network services cannot be classi?ed as print.? 1995 Wis. App. LEXIS 48-9, at 

2-87 DEFAMATION 2.03[6]

and slippery slope, the court refused to ?indulge? in the ?judicial legis-
lation? it thought would be necessary to construe the term ?periodical?
to include computer bulletin board messages:

?Applying the present libel laws to cyberspace or computer networks
entails rewriting statutes that were written to manage physical, print?
ed objects, not computer networks or services. Consequently, it is for
the legislature to address the increasingly common phenomenon of
libel and defamation on the information superhighway.

?The rate of technological development coupled with the com-
plexity of technology is beyond many laypersons? ken. A uniform
system of managing information technology and computer networks
is needed to cope with the impact of the information age. It is the
responsibility of the legislature to manage this technology and to
change or amend the statutes as needed.?232

If retraction statutes applicable to ?newspapers? and ?periodicals? are
construed (or amended) to apply to such publications when they are
transmitted online to OSP users, some new and dif?cult issues may arise
with respect to the nature of the correction or retraction required by such
statutes. If the publication containing the defamatory article continues to
be available online, and the would-be plaintiff makes the requisite
demand under the statute, disputes may arise as to whether the publish-
er should rewrite the original story to remove the defamatory content,
append a correction to the erroneous story, or rewrite the original story
and publish a separate correction in a later issue.

[6]?Single Publication Rule

Similar questions arise when applying the ?single publication rule?
to online publications. The ?general? common law rule is that ?each
communication of the same defamatory matter? is a separate publica-
tion, ?for which a separate cause of action arises.?233 Courts and leg-
islatures developed an ?exception? to that general rule for the pub-
lisher of a single ?edition? of a book, newspaper, magazine, or
broadcast, in order to protect the publisher and the courts from the
?undue harassment? of multiple actions brought in different courts

23: Id. at (Footnote omitted.)

233 Restatement (Second) of Torts, 577A, comment a (1977).

23" 1a., and comments c. See: Keeton v. Hustler Magazine, Inc., 465
US. 770, 777, 104 1473, 79 L.Ed.2d 790 (1984); Keeton v. Hustler Magazine,
Inc., 131 NH. 6, 549 A.2d 1187, 1188-1189 (1988) (?Without the rule, the burden that
libel suits would place on parties and the courts might well be intolerable?).

(Rel. 8)

 2.03[6] INTERNET AND ONLINE LAW 2?88

against the same defendant based on the same defamatory statement.234
Although it technically results in multiple communications at different
times and places, the distribution of copies of the same ?edition? is
treated as a ?single publication,? for which:

only one action for damages can be maintained;

all damages suffered in all jurisdictions can be recovered in
the one action; and

a judgment for or against the plaintiff upon the merits of any
action for damages bars any other action for damages between the
same parties in all jurisdictions.235

In addition, the date of publication for purposes of the statute of
limitations usually is deemed the ?rst day on which the ?edition? was
distributed to the public.236

A ?new? edition of the same material, however, is treated as a new
publication giving rise to a separate cause of action governed by a new
statute of limitation period?? Thus, application of the single publica-
tion rule to OSPs will turn on how courts construe the concept of an
?edition? in the context of online publishing. The test does ?not depend
on an interval of time, or a separate sale, but upon the answer to the
question, was the act of the defendant? to publish ?a conscious inde-
pendent one??238 The issue will likely center on whether ?conscious

235 Restatement (Second) of Torts, (1977). A judgment on the merits
might not be given res judicata effect in an action brought in a foreign country based
on the same ?single publication.? See Youm, ?Suing American Media in Foreign
Courts: Doing an End-Run Around U.S. Libel Law,? 16 Hast. Comm/Em 235,
251 (1994).

2?36 Keeton v. Hustler Magazine, Inc., 131 NH. 6, 549 A.2d 1187, 1189?1190 (1988).

237 See, 

Seventh Circuit: Wheeler v. Dell Publishing Co., 300 F.2d 372, 375 (7th Cir.
1962) (?reprintings? of same book edition).

State Courts:

Georgia: Cox Enterprises, Inc. v. Gilreath, Ga. App. 297, 235 633 (1977)
(new edition of same day?s newspaper).

New York: Rinaldi v. Viking Penguin, 5 Media L. Rep. (BNA) 1295 (NY. Sup.
1979) (softcover edition of a book ?rst published in hardcover).

23? Barres v. Holt, Rinehart Winston, Inc., 131 NJ. Super. 371, 330 A.2d 38,
46 (1974), ajf?d 141 NJ. Super. 563, 359 A.2d 501 (1976), aff?d 716 NJ. 461, 378
A.2d 1148 (1977). See, Gregoire v. G.P. Putnam Sons, 298 NY. 119, 81 
45 (1948) (?miscellaneous copy? of book sold one year after ?rst date of publication
did not give rise to new cause of action).

2?89 DEFAMATION 2.03[6]

independent? additions to a database that already contains defamatory
content constitute new ?editions? of a defamatory publication.239

A second issue with respect to online ?republications? might con-
cern material reviewed online by an OSP user who later forwards that
materials to others. Even in those states that have adopted the single
publication rule, the common law typically provides that republica?
tions by third parties that are ?reasonably foreseeable? give rise to a
new and separate cause of action, with a new statute of limitations
period.240 Accordingly, a dif?cult factual issue in future cases may be
whether an online republication of defamatory material by an OSP
user should be deemed to have been ?reasonably foreseeable? by the
original online publisher.

Courts have reached different conclusions as to whether the single
publication rule should apply to various types of Internet postings.241
The Tennessee Court of Appeals declined to apply this rule when
allegedly defamatory information regarding medical quality of care
standards was reported to at least three separate entities on separate
occasions.242 In the absence of reported authority addressing applica?
tion of the rule to Internet communications, the court analogized to
credit reporting cases, concluded there existed ?no aggregate publica?
tion? because the information was accessed on ?separate and distinct
occasions? and held that ?a separate limitations period attaches to
each publication.?243

239 Contrast Swafford v. Memphis Individual Practice Ass?n, No. 02A01-9612-
CV?003ll, 1998 Tenn. App. LEXIS 361 (Tenn. App. June 2, 1998) (new cause of
action arose of statute of limitations purposes each time defamatory information
maintained by data bank was accessed), with Van Buskirk v. New York Times Co.,
2000 US. Dist. LEXIS 12150, 28 Media L. Rep. (BNA) 2525 (S.D.N.Y. 2000)
(rejecting contention that Internet publisher should not be protected by single publi-
cation rule on theory that he ?makes a ?conscious decision every minute of every day
not to remove?? the material from the Internet), and Firth v. State, 184 Misc.2d 105,
706 835 (Ct. C1. 2000) (applying the single publication rule: ?[w]hile the
act of making the document available [on the Internet] constitutes a publication, in
the absence of some alteration or change in form, its continued availability on the
Internet does constitute a republication acting to begin the Statute of Limitations
anew each day?).

See N. 14 supra. See also, Hickey v. St. Martin?s Press, Inc., 978
F. Supp. 230, 236-239 (D. Md: 1997) (although defendants? liability for foreseeable
republications gave rise to a new cause of action not barred by statute of limitations,
court did not have personal jurisdiction over defendants based on third party?s repub?
lication in forum state).

2? See Note, ?Cyber-Defamation and the Single Publication Rule,? 81 B.U.L.
Rev. 895 (Oct. 2001).

242 Swafford v. Memphis Individual Practice Ass?n, No. 1,
1998 Tenn. App. LEXIS 361 (Tenn. App. June 2, 1998).

243 Id., at *23.

(Rel. 12)

 2.03[6] INTERNET AND ONLINE LAW 2-90

The Court of Appeals of New York has upheld application of the
single publication rule to the posting of allegedly defamatory
statements on an Internet site.244 The court went further to hold as a
matter of law that a modi?cation to unrelated information on the site
did not constitute a republication of the allegedly defamatory report.
The court stated that a ?republication exception? to the single
publication rule was inapplicable on the basis that it was not reason-
able to infer ?the intent or the result of communicating the earlier and
separate defamatory information to a new audience.?245

A federal district court also held the single publication rule applicable
to the posting of a letter allegedly subjecting the plaintiff to prosecution
for committing war crimes.?S The court expressly rejected the notion
that the non-commercial status of a publisher or the ability of Internet
publishers to withdraw the information readily should affect application
of the rule??

One commentator has reconciled these decisions on the basis that
the single publication rule should apply to general access Internet
sites, but that a multiple publication rule is more appropriate for cases
involving limited or restricted availability to a small group of readers,
such as the medical and credit reporting cases.248

Firth v. State of New York, 2002 NY. LEXIS 1901 (Ct. App. N.Y., July 2,
2002), a?irming 287 771 (2001).

?45 Id., at 

24? VanBuskirk v. New York Times Co., No. 99 Civ. 4265, 2000 U.S. Dist. LEXIS
12150 (S.D.N.Y. Aug. 24, 2000).

Id., at 

248 See N. 241 supra.

2-90.1 DEFAMATION 2.04[1]

2.04 First Amendment Protection for American Online
Service Providers Subjected to Defamation Law of
Foreign Countries

First Amendment limitations on defamation law in the United States
provide substantial protections to publishers and distributors. Because
of the international scope of online communications, however, online
service providers in this country might ?nd themselves subject to lia-
bility based on the defamation law of a foreign country that does not
provide the same level of protection for such activity.1 In two contexts,
however, an American 081? will still receive protection from the First
Amendment in libel actions governed by foreign law.

of Foreign Libel Judgments in the United
States

Plaintiffs who obtain a foreign-country libel judgment against an
American defendant must seek enforcement of the judgment in the

(Text continued on page 2-91)

1 Two American online service providers, Cornell University and the University
of Minnesota, have been sued for libel by a British physicist in two separate actions
?led in England. Each action is based on comments about the physicist that were
posted to a Usenet newsgroup by a student at the university; ?English Court May test
U.S. Ideals on Online Speech,? N.Y. Times on the Web, at
(June 5,
1998). England?s libel law ?is widely considered more pro-plaintiff than that of the
United States or other nations mainly because it presumes the falsity of an allegedly
defamatory statement and does not require a plaintiff to prove fault.? Fifer Sachs,
?The Price of International Free Speech: Nations Deal with Defamation on the Inter-
net(1997). See Youm, ?Suing American Media in Foreign
Courts: Doing an End-Run round U.S. Libel Laws,? 16 Hast. Comm/Em L.J. 235,
239?244 (1994) (comparing American and British libel law), and at 254 (quoting
American attorney Neal Goldman: ?Winning a libel case in London is a slam dunk?).
The English Parliament narrowed the gap between English and American libel law
when it enacted, on July 4, 1996, the Defamation Act, which includes a provision that
states: person shall not be considered the . . . publisher of a statement if he is only
involved . . . in processing, making copies of, distributing or selling any electronic
medium in which the statement is recorded.? Defamation Act, 1996 (Eng) 
This provision re?ects a ?modernization of the defense of innocent dissemination cur?
rently available to organizations such as booksellers and libraries if they are unaware
of the libel.? Id. See generally: Gigante, ?Ice Path on the Information Superhighway:
Foreign Liability for Domestically Created Content,? 14 Cardozo Arts Ent LJ. 523
(1996); McCarthy, Note, ?Networking in Cyberspace: Electronic Defamation and the
Potential for International Forum Shopping,? 16 U. Pa. J. Int Bus. L. 527
(1995).Porter and Potts, Canadian Libel Practice (1986); Knudstadt, The Protection
of Personal and Commercial Reputatiorz: A Study of the Law in Western Europe and
the United States (1980); Note, ?Constitutional Law:First Amendment Jurisprudence
in Great Britain,? 24 Seton Hall L. Rev. 1549 (1994); Josephs, ?Defamation,
Invasion of Privacy, and the Press in the People?s Republic of China,? 11 U.C.L.A.
Pacific Basin L. J. 191 (1993).

(Rel. 12)

2-91 DEFAMATION 2.04[1]

United States if the defendant has no substantial assets anywhere else.
Unlike the judgments of other state or federal courts, however, a for-
eign-country judgment is not entitled to automatic recognition and
enforcement under the Full Faith and Credit Clause of the United States
Constitution.2 Instead, its enforcement is governed by state law, either
under general common law principles of comity or pursuant to statuto-
ry provisions that typically codify the same key principles.3 In either
instance, the foreign?judgment cannot be enforced against a defendant
in this country unless a civil action is initiated in a state or federal court
to obtain recognition of the foreign-country judgment under the applic-
able state law.4 Such recognition can be denied if the court ?nds that
the judgment ?is repugnant to the public policy of the State.?5
Accordingly, if a foreign-country libel judgment was rendered against
an American OSP on the basis of legal rules that are inconsistent with
the First Amendment, the OSP defendant could contest its recognition
and enforcement in the United States on the ground that enforcement by
any court in this country is constitutionally prohibited by the First
Amendment, and on the ground that recognition of the judgment should
be denied under basic comity principles because it is repugnant to the
public policy of the state in which recognition is sought.6 American
courts have refused to recognize and enforce foreign-country libel judg?
ments on both grounds.7 Such First Amendment protection, however,

2Hilton v. Guyot, 159 US. 113, 163?164, 182-188, 16 139, 40 95 (1895).

3 Many states apply the common law comity principles set forth in Hilton v.
Guyot, Id., 195 US. at 202?203. Nearly half the states have enacted some variation
of the Uniform Foreign Money?Judgments Recognition Act (UFMJRA), proposed by
the National Conference of Commissioners on Uniform State Laws in 1962, and the
Uniform Enforcement of Foreign Judgments Act, proposed in 1964. See 13 Uniform
Laws Annotated 261 (1986).

4 Restatement (Third) of the Foreign Relations Law of the United States, 481,
cement (1986). See:

Fourth Circuit: Guinness PLC v. Ward, 955 F.2d 875, 891 (4th Cir. 1992).

District of Columbia Circuit: Matusevitch v. Telnikoff, 877 F. Supp. 1, 2-3
(D.D.C.1995).

5 Uniform Foreign Money-Judgments Recognition Act See Hilton v.
Guyot, N. 2 supra, 159 US. at 164 (comity ?does not require, but rather forbids?
recognition ?where such a recognition works a direct violation of the policy of our
laws, and does violence to what we deem the rights of our citizens?).

6 See generally: Devgun, ?United States Enforcement of English Defamation Judg-
ments: Exporting the First Amendment?? 23 Anglo-Am. L. Rev. 195 (1994); Sanders,
?Extraterritorial Application of the First Amendment to Defamation Claims Against
American Media,? 19 NC. J. Int. 1.. Com. Reg. 515 (1994); O?Connell, ?Libel Suits
Against American Media in Foreign Courts,? 9 Dick. J. Int. 147 (1991).

7 See:

District of Columbia CirCuit: Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C.
1995) (declining to recognize libel judgment from England, pursuant to Maryland?s
version of UFMJRA, because it was based on British libel standards inconsistent with

(Rel. 8)

 2.04[2] INTERNET AND ONLINE LAW 2-92

would not extend to any assets the OSP (or its employees) might have
in any other foreign country.8

[2]?Application of Foreign Libel Law in Domestic Litigation

If an American OSP transmits defamatory content to users in a for-
eign country, it is subject to suit in the United States, where it resides,
based on a publication that arguably ?occurs? in the foreign country
where the users who received the transmission reside. If the plaintiff
sues the OSP in the state where the OSP resides, the court must
decide whether to apply the defamation law of that state or the
defamation law of the country in which the content transmitted by the
OSP was received. That determination would be governed by the
choice-of?law rules of the forum state for defamation actions.

Choice?of?law rules vary widely from state to state.9 In certain cir-
cumstances, however, such rules might call for application of the foreign
country?s libel law to some or all of the elements of the plaintiff?s cause
of action. If the foreign law would require application of principles pro-
hibited in this country by the First Amendment, however, the courts have
enforced the relevant First Amendment protections, either by ?grafting?

requirements of the First Amendment and therefore ?repugnant to the public policies
of the State of Maryland and the United States?).

State Courts:

New York: Bachchan v. India Abroad Publications, Inc., 154 Misc.2d 228, 585
665 (NY. Sup. 1992) (refusing to enforce libel judgment from England
against New York publisher, on the basis of an article published in India: ?The
protection to free speech and the press embodied in [the First Amendment] would be
seriously jeopardized by the entry of foreign libel judgments granted pursuant to stan-
dards deemed appropriate in England but considered antithetical to the protections
afforded the press by the US. Constitution?).

8 The plaintiff could circumvent First Amendment protections by seeking to
enforce her foreign-country judgment in the country where those assets are located.
See: Youm, ?Suing American Media in Foreign Courts: Doing an End?Run Around
U.S. Libel Laws,? 16 Hast. Comment LJ. 235, 260?261 (1994); Warren, ?The Free
Press and Its Territorial Limitations: United States Correspondents in the Soviet
Courts," 5 Brook. J. Int. L. 349 (1979). Cf. Pindling v. National Broadcasting Co.,
No. 17549/84, 1989 Ont. C.J. LEXIS 98 (Ont. Sup. 1989) (NBC refused to appear
and defend against libel suit brought in Bahamas based on broadcast originating in
United States; subsequent action in Canada based on cable retransmission of broad-
cast in Canada, which sought enforcement of Bahamian judgment, was settled)
(discussed in Youm, 16 Hast. Comm/Em L.J., at 254, 257).

9 See: Sanders, ?Extraterritorial Application of the First Amendment to Defama-
tion Claims Against American Media,? 19 NC. J. Int. L. Com. Reg. 515, 522-523
(1994); Restatement (Second) of Con?ict of Laws, 6 (1971). See generally: Fauch-
er, ?Let the Chips Fall Where They May: Choice of Law in Computer Bulletin Board
Defamation Cases,? 26 U. C. Davis L. Rev. 1045 (1993); Richards, ?Defamation Via
Modern Communication: Can Countries Preserve Their Traditional Policies?? 3
Transnat?l L. 613 (1990).

2-93 DEFAMATION 2.04[2]

them onto the foreign country?s libel law,10 or by concluding that the
First Amendment required application of American libel law.11

in See DeRoburt v. Gannett Co., 83 F.R.D. 574 (D. Haw. 1979) (applying Nauran
libel law (virtually identical to English libel law), as modi?ed by First Amendment
protections, to libel action by president of the island-nation Nauru against the Amer-
ican owner of newspaper published in Guam and distributed throughout the Western
Paci?c, including Nauru). See also, Desai v. Hersh, 719 F. Supp. 670 (ND. 111. 1989),
aff?d 954 F.2d 1408 (7th Cir), cert. denied 113 190 (1992) (libel claim brought
by former prime minister of India against an American author who sought damages
under American law for injuries suffered in America and damages under Indian law
(also virtually identical to British law) for injuries he suffered in India; the court
applied First Amendment protections to the claim for damages under Indian law, but
suggested that they would not apply to extraterritorial speech on matters not ?of pub-
lic concern? or when the publisher has ?intentionally and directly published the
speech in a foreign country in a manner consistent with the intention to abandon ?rst
amendment protections?).

?1 See Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL
419847 (S.D.N.Y. May 4, 1994) (dismissing libel claim brought under British law by
Jordanian citizen on the ground that ?establishment of a claim under the British law
of defamation? in the United States ?would be antithetical to the First Amendment
protections?) (quoted in Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591, 593
(S.D.N.Y. 1994)).

(Rel. 8)