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Speech Patterns Online

The government is trying to prevent freedom in cyberspace ... and protect it

In the days before the world was wired, Washington’s stance on libel and defamation was unambiguous: Free speech is vital to democracy, but publishers of news and information can and must be held responsible for the accuracy of their content.

But publishing companies aren’t the gatekeepers they once were. Virtually anyone can publish online, quickly, anonymously and from anywhere on the planet. And with the spread of broadband multimedia content just beginning, online communication will be far more prolific and provocative in the near future. Because of that, lawmakers have struggled to bring order to a medium that resists rules by its very nature.

Because of that, lawmakers have so far struggled to bring order to the medium. “We have a situation in which an average person has the ability to publish on a global communications medium with unlimited membership,” said Michael Overly, an attorney in the e-business and information technologies group at Foley & Lardner. “There’s no precedent for that.”

In the offline world, libel is defined as the publication of content that is false, defamatory and causes quantifiable hardship to its subject; a statement is defamatory if it holds someone up to shame or ridicule from their peers.

On the Web, the standards are the same, but they’re forced to adapt to a whole new environment, because the meaning of “publisher” is far less clear on the Web.

The law defines “publication” as one person telling something to at least one other person about a third party. Historically, libel cases involve publication to scores of people, via newspaper, magazine, or TV broadcast. In those instances, someone can file a libel suit against both a writer and appropriate publisher.

After the court wrestled with a few cases involving the liability of Internet service providers as de facto publishers of content posted by their users, Congress decided to make its first meaningful stab at addressing the issue in 1996.

As part of the Communications Decency Act, legislators included what has become known as the Good Samaritan provision, which effectively shields ISPs from lawsuits based on their users’ content.

Much of the CDA, which attempted to regulate lewd and unsavory content on the Web, was struck down, thanks to vigorous challenges by, among others, the American Civil Liberties Union.

But the Good Samaritan clause stayed on the books, and has become one of the few firm rules governing speech online.

The clause also figured prominently in the two most high-profile online libel cases to date, twice saving the world’s biggest ISP from substantial liability.

Matt Drudge was catapulted into celebrity after breaking the first tidbits of the Monica Lewinsky scandal on his renegade news site. Drudge’s ongoing coverage of the affair earned him phalanxes of both die-hard fans and vitriolic detractors.

His reporting also came to symbolize the fast and often unscripted tenor of news on the Web. To some, he was the embodiment of all that can go wrong in amateur publishing; he was often accused of shoddy and irresponsible reporting and printing salacious dish without doing his homework.

In one such instance, Drudge posted a story alleging that White House aide and former journalist Sidney Blumenthal had physically abused his wife Jacqueline.

Blumenthal filed a $30 million libel suit against Drudge and America Online, which paid the Web sleuth to include his content in its service. Drudge retracted the piece and issued a public apology, but Blumenthal was not appeased.

To date, the suit against Drudge is ongoing. But in the fall of 1998, AOL won a dismissal of the charges against it, thanks to the Good Samaritan protection.

But Conrad Trope, a managing partner with the Beverly Hills law firm Rosenfeld, Meyer & Susman, said protection for ISPs, like most issues involving the Web and the law, is still far from ironclad. The precedent is very young, and there’s room for new interpretations to emerge that may be less favorable to providers.

If that happens, Trope thinks the ISPs would likely take their case directly to Congress. “If an AOL ever gets tagged by one of these suits, I think you’ll see a huge demand for new federal legislation,” he said.

Blumenthal could easily identify the offending author in his case, but some online libel plaintiffs are not as fortunate. On the Web, publishing isn’t just easy, it’s often totally anonymous as well.

In the 1997 chat room case of Zeran vs. AOL, several unattributed posts advertised some tasteless joke T-shirts related to the Oklahoma bombing, and falsely gave the phone number of Kenneth Zeran as the seller.

An Oklahoma City radio station found the posts and began giving out Zeran’s number over the air. Not surprisingly, he was flooded with hate calls, including numerous death threats.

Zeran was couldn’t name the AOL posters in a lawsuit, so he went after AOL itself. As in the Blumenthal case, however, AOL was exonerated based on the Good Samaritan clause.

After a concurrent suit against the radio station was also thrown out because the station didn’t give out Zeran’s full name, he was left without recourse.

“Anonymity poses a big problem,” in Web libel cases, said Mitchell Kamarck, a partner at Rosenfeld, Meyer & Susman in Beverly Hills. “You can try to sue the host but, so far, the host has been protected.”

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