Zapped in cyberspace; as use of the Internet increases, so does the risk that people will post defamatory statements on message boards and in chat rooms. Here's how defamation law, which originated in medieval times, can be used in the 21st century.

The idea of linking computer networks to share data, like many of the technological innovations of the last century, had its genesis in national defense at the height of the Cold War, nurtured and developed in partnership with academia. The concept was quickly seized upon and expanded by the unstoppable power of commerce. Today, content on the Internet is as diverse as human thought, and its use is universal. The Net has revolutionized society just as the printing press did in the Middle Ages.

The Net's explosive growth as a readily available and affordable communications medium has spawned a new generation of lawsuits involving a tort that had its origins in the laws of medieval England. Anyone in the world with access to a personal computer and an Internet connection can be the town crier in our 21st-century global village. And those who post information anonymously or under assumed identities can do so with relative ease.

Not surprisingly, the cloak of anonymity encourages some to be less than careful with the truth. Corporations and individuals increasingly find themselves defamed on the Net by anyonymous users--who may include disgruntled investors or employees, unethical competitors, or even ex-lovers.

In the past, most libel involved media defendants because only they had the platforms needed to publicize the message. But the media also were usually sensitive to libel issues and acted responsibly about what they published or broadcast, with articles vetted by editors for accuracy and factual support, and by lawyers to limit liability exposure. Individuals using the Internet have no such hurdles to overcome, nor is there any vetting process to filter their comments. When the World Wide Web becomes the Wild, Wild West, reputations can be seriously harmed.

But how can a plaintiff recover damages from an anonymous wrongdoer? What jurisdiction's law governs a tort committed entirely in cyberspace? The Internet defamation plaintiff confronts complex questions of jurisdiction, applicable burdens of proof, and even the appropriate party from whom to seek redress. While these challenges are daunting, they are by no means insurmountable.

Defamation

Defamation is any communication that tends to harm the reputation of another so as to lower that person in the estimation of the community, deterring others from associating or dealing with him or her. (1) Defamatory statements can be either spoken (slander) or written (libel) and are actionable if the person who made them knew or should have known they were false. To satisfy constitutional free speech concerns, the U.S. Supreme Court has established a First Amendment paradigm: * If the plaintiff is a public official or figure, he or she must prove "actual malice" by the defendant. Actual malice, as opposed to common law malice, refers to speech made "with knowledge that it was false or with reckless disregard of whether it was false or not." (2)

* If the plaintiff is a private figure but the speech involved in the litigation is about a matter of public concern, he or she can recover actual damages by showing negligence. (3)

* When the defamation is between private parties on a purely private matter, a plaintiff may recover actual or presumed damages with a showing of negligence, unless state law provides otherwise. (4)

But as one commentator said, while "private figures suing for speech on private matters may not face any First Amendment hurdles, ... the Supreme Court's decisions decisions make at least one thing clear: Truly private-figure/private-concern cases are likely to be few and far between." (5)

In the context of free speech, the Internet is unique for two reasons: It is an inexpensive medium for "publication," and it has global reach because of its ubiquity and access. A speaker otherwise denied an outlet for his or her views through more expensive (and less widely disseminated) vehicles such as television, radio, or print media becomes a "pamphleteer" for a cause "with a voice that resonates farther than it could from any soapbox." (6)

As the Internet continues to grow, the law of defamation is being put to the test. "The Internet culture right now is for users to refute speech with speech," one commentator wrote. "But as the Internet culture becomes more diverse, users will start refuting speech with lawsuits." (7) More and more, defamed parties are looking for ways to raise claims and recover damages. They face several hurdles.

Jurisdiction

A recurring question in online defamation cases is whether the court where the plaintiff filed suit can exercise personal jurisdiction over a nonresident defendant whose only contact with the forum state is through the Internet.

The earliest Internet jurisdiction cases involved commercial activity and followed the traditional due process minimum-contacts analysis for personal jurisdiction. (8) Courts began to follow the sliding-scale approach articulated by a Pennsylvania federal court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (9)

The Zippo court noted that, at one end of the spectrum, the defendants clearly did business over the Internet with residents of the forum state by engaging in repeated transactions or transmissions of computer files, so the exercise of jurisdiction was proper. At the other end of the spectrum, the defendant maintained a passive site that did nothing more than display advertisements to residents of the forum state.

Such contacts were not sufficient for the court to exercise personal jurisdiction. In the middle of the spectrum, there were situations where a defendant had a Web site that allowed a user in the forum to exchange information with a host computer. The court said that, in this middle ground, "the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." (10)

Another Pennsylvania federal court used the Zippo analysis to determine jurisdiction in an Internet defamation case. In Barrett v. Catacombs Press, the defendant posted defamatory comments about a Pennsylvania psychiatrist on two passive Web sites she maintained. (11) She did not, however, have online interaction with Pennsylvania residents, nor did she use her sites to encourage contact with forum residents.

The court found that while the defendant wanted to defame the plaintiff, the fact that the information was accessible worldwide did not mean that the defendant intended to target Pennsylvania residents. The court ruled it did not have jurisdiction over the defendant. (12)

Similarly, in Revell v. Lidov a Texas federal court ruled that it could not exercise jurisdiction over a defendant because the Web site on which the offensive statements were posted was not truly interactive. (13) That is, there was no direct contact between the people who transmitted information through the Web site and the people who read it.

A Tennessee federal court reached the same conclusion in Bailey v. Turbine Design, Inc., holding that it did not have jurisdiction because the allegedly defamatory statements were merely posted on a Web site to be viewed by whomever cared to do so. (14)

These cases do not mean that personal jurisdiction can never be asserted over a nonresident defendant who maintains a passive Web site. A federal court in Virginia asserted jurisdiction over two Connecticut newspaper publishers for allegedly defamatory statements about a Virginia prison warden on the papers' Web sites. (15) The plaintiff argued that defendants' activities were intended to target and engage online users in Virginia and that the assertion of jurisdiction was proper.

Another Virginia federal court used a different rationale to assert jurisdiction over nonresidents who defamed a Virginia resident online. In Bochan v. LaFontaine, three individuals accused the plaintiff of pedophilia, two of whom posted these statements using their accounts at America Online (AOL), an Internet service provider (ISP) located in Virginia. The court reasoned that because the defamatory messages were temporarily stored on AOL's server hardware in Herndon, Virginia, before they were disseminated around the world via the Internet, the assertion of personal jurisdiction by a Virginia court satisfied due process. (16)

For the third defendant, whose ISP was located outside of Virginia, the court used a Zippo analysis. Jurisdiction could be asserted because the defendant promoted his business and advertised on the Internet via his Web site (on which the defamatory postings had been made); the site was accessible to Virginia users 24 hours a day, 7 days a week; and the site included the defendant's name, address, telephone number, and a statement that no surcharges were applied to Visa or MasterCard purchases. Under those circumstances, the court found it foreseeable that this defendant would be haled into the courts of Virginia. (17)

Once jurisdiction has been established, the next issue likely will involve choice of law. The Restatement (Second) of Conflicts of Law provides that where a person claims injury due to a defamatory mass communication, the person's rights and liabilities are determined by the law of the state that has the most significant relationship to the occurrence and the parties. As the restatement says, this "will usually be the state where the person was domiciled" at the time of the injury. (18)

At least one federal appellate court has construed this approach as more appropriate to Internet communications than the "cumbersome, if not completely impractical" approach of the first restatement, which calls for a court to choose the law of the place where the last event necessary to make an actor liable for an alleged tort takes place. In most publication tort cases, that last event is a third party's reading of the publication in question. (19)

Wells v. Liddy concerned statements posted on the Internet by Watergate conspirator G. Gordon Liddy about the plaintiff's alleged role in the scandal. The U.S. Court of Appeals for the Fourth Circuit held that Maryland conflict-of-law rules reflected a willingness to apply the second restatement because the first was unworkable in that it had an "obvious deficiency" and "fail[ed] to reach a satisfactory result" in the context of Internet-based defamation. (20)

Burden of proof

The burden a defamation plaintiff must satisfy to recover for damaging statements largely depends on whether he or she is a public or private figure, whether the disputed speech addresses a matter of public concern, or whether the speech constitutes defamation per se.

As the U.S. Supreme Court held in New York Times Co. v. Sullivan, public figures must meet the high "actual malice" standard to recover for defamation. In Gertz v. Robert Welch, Inc., the Court noted that the high standard is justified because public figures (1) have significantly greater access to effective communication channels than most people, and therefore greater opportunities to rebut negative statements; and (2) have willingly entered the spotlight, subjecting themselves to public scrutiny. (21)

Some have argued that Internet defamation plaintiffs should be deemed "public figures" and be required to establish "actual malice" in order to recover damages. (22) They contend that the ubiquity of the Internet essentially levels the playing field, giving almost everyone with a computer access to effective communication channels.

Others counter that there is no reason to think that someone reading defamatory statements on one Web page will exhaustively search for the subject's replies on another. And they argue that mere participation in online discussions, no matter how vigorous, does not grant a person enough fame or notoriety to make him or her a public figure in all contexts.

This is particularly true in light of the millions of people who post information on the Internet every day. (23) Plaintiffs who do not fit into traditional concepts of public prominence might satisfy their burden of proof for actual or presumed damages upon a showing of negligence.

In California, plaintiffs face an almost insurmountable barrier to recovery for online defamation. Lawmakers enacted the state's anti-SLAPP (Strategic Litigation Against Public Participation) legislation in response to "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional right of freedom of speech." (24) Under that law, defamation plaintiffs must demonstrate a probability of success on their claims before trial, or be subject to a special motion to strike, whenever the challenged statements constitute an act "in furtherance of a person's right of petition or free speech." Such an act is defined, in part, as "any ... statement made in a public forum." (25)

In the first published opinion on the issue, the California Court of Appeal held that Internet chat rooms that facilitate discussion about public corporations' management and performance are "open and free to anyone who wants to read [their] messages" and are therefore considered "public forums." The court dismissed several of the plaintiff company's online-defamation claims, despite evidence that the defendants may have sought financial leverage by posting statements that would devalue the company. The court reasoned that the statements were made by individuals positioned as "investors" rather than "competitors." (26)

At common law, certain types of defamation were deemed so injurious that damages were presumed if such statements were made. While state laws have defined their own categories of defamation per se, the common law defined these categories: statements that the plaintiff committed a crime; statements that the plaintiff has a loathsome disease; statements that tend to injure the plaintiff in business or trade; and statements that the plaintiff is involved in serious sexual misconduct. But while actual damages are presumed in those circumstances, an award of punitive damages still requires the defendant to have known that the statement was false. (27)

Whom to sue?

One of the most important decisions a plaintiff makes when suing for Internet defamation is determining from whom or from what entity to seek damages. The author of the offensive material is an obvious defendant, but this person might be difficult to identify if writing anonymously. In addition, he or she might lack recoverable assets.

Fortunately, many homeowners' insurance policies, including umbrella policies, cover defamation claims. Given recent court rulings regarding other potential defendants, the author might be the only party from whom a plaintiff can recover.

While the case law was split before 1996, the enactment and judicial interpretation of the Communications Decency Act (28) (CDA) has made it more difficult for plaintiffs to recover from ISPs.

Congress passed the act in response to Stratton Oakmont, Inc. v. Prodigy Services Co., the decision of a state trial court in New York. (29) In that case, ISP Prodigy Services was found liable for defamatory Internet statements, mainly because it retained editorial control over the content of the site.

The CDA says that "[n]o [ISP] shall be treated as the publisher or speaker of any information provided by another information content provider." (30) While nothing in the act prohibited recovery from ISPs as "distributors" of defamatory statements that they had not themselves authored, the Fourth Circuit, in Zeran v. America Online, Inc., foreclosed that possibility. (31) In Zeran, the court extended the CDA's publisher immunization to content distributors.

A federal court in the District of Columbia adopted a similar view in Blumenthal v. Drudge. (32) In that case, AOL had contracted with the author of the allegedly defamatory statements to write an online column. AOL exercised ultimate editorial control over the column's content and marketed it to readers. Nevertheless, the court held that, under the CDA, AOL was immune from suit and not subject to liability. (33)

Plaintiffs in defamation cases may have little alternative to filing suit against the author of the defamatory materials. However, since anonymity is the rule rather than the exception online, a plaintiff must first identify that defendant.

It has long been recognized that anonymous speech has played an "important role" in furthering free speech rights. (34) But as a Virginia court said, "the protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions." (35)

Those who have suffered damages by way of tortious or other actionable communications via the Internet should be permitted to seek appropriate remedies by preventing those tortfeasors from hiding behind the First Amendment.

The first step in unmasking an anonymous online author is to determine which ISP has a record of that person's name and address. ISPs generally won't disclose subscriber information without a subpoena or other legal process. They argue that the anonymity of the Internet permits people to disseminate sometimes controversial or offensive ideas and information to others. ISPs also frequently claim that the Electronic Communications Privacy Act (ECPA) (36) prohibits them from disclosing such information. Plaintiffs should argue that only the contents of electronic transactions are statutorily protected. (37)

Generally, a lawsuit must be filed before a court will issue a subpoena. If the defendant's identity is unknown, the plaintiff should file a defamation suit against "John Doe."

If the claim raises no independent federal question, the plaintiff must file the claim in state court, bemuse a plaintiff usually cannot allege diversity as a matter of law against an unknown defendant. If and when the defendant's identity is discovered, he or she can be substituted as the real party in interest.

In determining whether to issue a subpoena against an ISP, note that courts balancing the interests of the injured against the First Amendment rights of the author have typically used the following test to determine the need for disclosure:

* whether the plaintiff has exhausted good-faith, traditional avenues for identifying a defendant

* whether the plaintiff has identified the anonymous defendant specifically enough that the court can determine whether jurisdiction exists

* whether the plaintiff has set forth a prima facie cause of action against the anonymous defendant. (38)

The subpoena process can be time-consuming, especially if the anonymous author has taken deliberate steps to conceal his or her identity. If so, the plaintiff might need to subpoena more than one Internet service provider. The relatively short statutes of limitation for defamation actions make it imperative to pursue such claims as soon as possible. If confronted by a statute-of-limitations defense in this context, plaintiffs might consider arguing that the statute should not bar their claim because the defendant's use of anonymity or a pseudonym constituted fraudulent concealment of his or her identity. (39)

First verdict

In October 2000, a federal jury in Richmond, Virginia, awarded the first known verdict for defamation on the Internet against an anonymous author. (40) An individual calling himself "fbiinformant" defamed the plaintiff, Dr. Sam Graham Jr., claiming that Graham had been forced to resign as chairman of a medical school's urology department because he had been caught taking kickbacks from UroCor, a uropathology laboratory that furnished services to Emory University. "Fbiinformant" published these false statements on a Yahoo! Internet message board.

After issuing subpoenas to Yahoo! and others for several months, plaintiff counsel determined that "fbiinformant" was another doctor who did not know Graham personally. The defendant had been fired by UroCor and, using a variety of aliases, regularly attacked the laboratory on the message board.

The allegations against Graham were completely baseless, and the defendant made no independent effort to verify the statements before posting them on the Internet. Even after others told the defendant that his statements were false, "fbiinformant" did not remove his defamatory statements until after Graham discovered his identity and filed suit.

The jury awarded substantial damages to Graham for injury to his reputation and intentional infliction of emotional damages. It also awarded the maximum amount of punitive damages permitted by Virginia law. The trial judge entered judgment on the verdict, and the case settled while on appeal.

The Internet has proved to be a unique environment for communication, and defamation law is adapting to this new medium.

Although the plaintiff's status as a private or public figure is still being debated and ISPs are virtually immune from suit, Internet users are increasingly being held responsible for making defamatory statements in cyberspace. As courts continue to grapple with jurisdictional and First Amendment issues, the law surrounding Internet defamation is developing rapidly.

People who use the Internet to act as private publishers should not be given a license to defame. And they should not be able to use the anonymity of the Internet--with its far-reaching audience and impact--to evade responsibility for defamatory statements.

Notes

(1.) RESTATEMENT (SECOND) OF TORTS [section] 559 (1977).

(2.) N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

(3.) See Gertz v. Robert Welch, Inc., 418 U.S. 323, 346-49 (1974).

(4.) See Michael Hadley, Note, The Gertz Doctrine and Internet Defamation, 84 VA. L. REV. 477, 487-88 (1998) (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)).

(5.) Lyrissa B. Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 875 (2000).

(6.) Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

(7.) Eric Eden, Libel & Defamation in the Information Age, at www.english.upenn.edu/~afilreis/ defamation-in-cyberspace.html (visited Nov. 5, 2001) (quoting David Marburger).

(8.) See, e.g., Int'l Shoe v. Washington, 326 U.S. 310, 316 (1945) and progeny.

(9.) 952 F. Supp. 1119 (W.D. Pa. 1997).

(10.) Id. at 1124.

(11.)44 F. Supp. 2d 717 (E.D. Pa. 1999).

(12.) Id. at 727-28.

(13.) No. 3:00-CV-1268-R, 2001 WL 285253, at *5 (N.D. Tex. Mar. 20, 2001) (unpub.).

(14.) 86 F. Supp. 2d 790, 795 (W.D. Tenn. 2000).

(15.) Young v. Connecticut Post, No. 2:01-cv-120 (W.D. Va. Oct. 10, 2001); Young v. New Haven Advocate, No. 2:00-cv-86 (W.D. Va. May 12, 2001).

(16.) 68 F. Supp. 2d 692, 701 (E.D. Va. 1999); but see Barrett, 44 F. Supp. 2d 717.

(17.) Bochan, 68 F. Supp. 2d 692, 701-02; but see Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 719 (E.D. Va. 2000) (holding that, even if the plaintiffs allegations of e-mail and credit card solicitation on the Web site were true, jurisdiction could not be properly exercised because the core allegation "boils down to plaintiffs unfortunate face-to-face encounter with images that, because of their pornographic nature and use of his registered domain name, deeply disturbed him").

(18.) RESTATEMENT (SECOND) OF CONFLICTS OF LAW [section] 150 (1969).

(19.) See Christopher P. Beall, Comment, The Scientological Defenestration of Choice-of-Law Doctrines for Publication Torts on the Internet, 15 J. MARSHALL J. COMPUTER & INFO. L. 361, 365 (1997).

(20.) 186 F.3d 505, 507-09 (4th Cir. 1999).

(21.) 418 U.S. 323, 344 (1974).

(22.) See Jeremy Stone Weber, Note, Defining Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from Computer Bulletin Board Speech, 46 CASE W. RES. L. REV. 235, 260-77 (1995).

(23.) See Hadley, supra note 4, at 494-500.

(24.) CAL. CIV. PROC. CODE [section] 425.16(a) (2001). 25. Id. at (b)(1), (e)(3).

(26.) Computerxpress v. Jackson, 113 Cal. Rptr. 2d 625, 638-39 (Ct. App. 2001).

(27.) See Hadley, supra note 4, at 481 n.22.

(28.) 47 U.S.C. [section] 230(c)(1) (West Supp. 2001). 29. No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (unpub.).

(30.) 47 U.S.C. [section] 230(c)(1) (2001) (emphasis added).

(31.) 129 F.3d 327, 331-33 (4th Cir. 1997).

(32.) 992 F. Supp. 44 (D.D.C. 1998); see also Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000). But see Gucci America, Inc. v. Hall & Assoc., 135 F. Supp. 2d 409 (S.D.N.Y. 2001).

(33.) However, Blumenthal did leave open the question of whether an ISP could be liable for "publishing" if it actively helped develop the content of a Web page. The Ohio Court of Appeals held that where an individual Webmaster actively participated in the online discussion at issue, he was liable as a "publisher" under the CDA. See Sabbato v. Hardy, No. 2000CA00136, 2000 WL 33594542 (Ohio Ct. App. Dec. 18, 2000) (unpub.).

(34.) Talley v. California, 362 U.S. 60, 64 (1960).

(35.) In re Subpoena Duces Tecum to America Online, Inc., No. 40570, 2000 WL 1210372, at *6 (Va. Cir. Ct. Jan. 31, 2000), rev'd on other grounds, America Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001).

(36.) 18 U.S.C. [subsection] 2702-2703 (2000).

(37.) See id. [section] 2702; Jessup-Morgan v. America Online, Inc., 20 F. Supp. 2d 1105, 1108 (E.D. Mich. 1999). Some courts, however, draw no such distinction between identity and content, holding that under the ECPA, "ISPs are free to turn stored data and transactional records over to nongovernmental entities." United States v. Hambrick, 55 F. Supp. 2d 504, 507 (W.D. Va. 1998).

(38.) See Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-79 (N.D. Cal. 1999); Dendrite Int'l, Inc. v. Doe, 775 A.2d 756, 760 (N.J. 2001).

(39.) See, e.g., Grimes v. Suzukawa, 551 S.E.2d 644, 646 (Va. 2001) (a plaintiff who seeks to toll a statute of limitations must establish that the defendant tried to obstruct the plaintiff's right to file her action).

(40.) Graham v. Oppenheimer, No. 3:00-CV-57 (E.D. Va. Oct. 2000) (unpub.). The authors represented the plaintiff.

J. Burke McCormick and D. Alan Rudlin are partners at Hunton & Williams in Richmond, Virginia. Their associate, Brian J. Schneider, assisted with research and writing.