Mass Communication Law and Ethics

By Roy L. Moore | Go to book overview

Internet libel cases because AOL paid Drudge to write his column, and it quickly removed the column once it was given notice.

In April 1998 the U.S. District Court Judge Paul L. Friedman in Washington, D.C., issued a summary judgment in favor of Drudge and America Online on the same basis as the decision in Zeran -- that section 230 (the "Good Samaritan" provision) of the Communications Decency Act of 1996 provides immunity for Internet service providers against defamation suits arising from information originating from third parties. 233 As long as this provision remains in the CDA, it is unlikely that individuals and corporations will be able to hold Internet service providers liable for messages sent by third parties.


SUMMARY AND CONCLUSIONS

Libel continues to be a serious threat to the news media, especially as the current Rehnquist court continues to make it much easier for both public figures/officials and private individuals to successfully sue for libel. Libel is false and defamatory information that harms a person's reputation and subjects that person to public hatred, contempt, or ridicule. Of all the defenses available, truth and constitutional privilege are the most effective. Truth is an absolute defense, whereas constitutional privilege under New York Times v. Sullivan and its progeny requires that a public official or figure demonstrate clear and convincing evidence of actual malice (reckless disregard for the truth or knowledge of falsity).

Private individuals in most states need to show only negligence to win a libel suit, although they must also prove actual malice to obtain punitive damages, at least when the allegedly defamatory statements concern an issue of public importance. Other viable defenses include qualified privilege, statute of limitations, and consent; the latter two are not typically applicable, however. Thus, the hurdles to recovering punitive damages, which can be incredibly high because they are designed to punish the offender rather than compensate the offended, continue to be rather strong.

The trend in both state and federal courts is toward permitting more plaintiffs to succeed, especially when media defendants have clearly acted irresponsibly. To mitigate damages, the news media should consider publishing a correction/retraction. However, such action must be taken with extreme care because it effectively means an admission of negligence or guilt. Finally, neutral reportage is a limited defense that must be used responsibly even in the few jurisdictions where it is recognized.

It is quite possible that the shape of libel may change significantly in the years ahead as with more new appointments. These changes will almost certainly mean good news for the mass media with broader recognition of individual and press rights under the First Amendment, reversing the trends of the last two decades. The next major battle ground for libel and other torts as well, such as invasion of privacy, is clearly going to be the Internet. As more users come on board, it is inevitable that libelous information will appear, especially as each subscriber becomes, in effect, a publisher. The "Good Samaritan" provision of the CDA of 1996 provides some protection for Internet service providers, but the protection is limited and does not shield consumers who post messages from potential libel suits.


ENDNOTES
1.
In law, hombooks are particularly useful for anyone who wants a basic overview of a specific area such as torts. Both appellate and trial courts occasionally refer to "hombook law" to demonstrate that a particular legal theory or principle has become widely accepted.

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