Academic journal article Communications and the Law

Digital Manipulation as New Form of Evidence of Actual Malice in Libel and False Light Cases

Academic journal article Communications and the Law

Digital Manipulation as New Form of Evidence of Actual Malice in Libel and False Light Cases

Article excerpt

The manipulation of words or visual depictions of others is not a new phenomenon; it has been around almost as long as narrative and art have purported to record events.(1) As a new medium advances, some people utilize the medium to manipulate and exploit the work of original authors, which not only infringes on the intellectual property of the author but also may harm the subject and mislead the audience. Such manipulation long has plagued authors and society as a whole by causing emotional distress, tarnishing reputations, and resulting in astronomical monetary damages. Unfortunately, this has been intensified with the recent development of digital technology.

Digital technology has revolutionized the way people communicate with others by enabling them to work together, collaborate, and access and generate information without regard to geographical boundaries. The amount of data is virtually infinite, "its accessibility is unending, and because it is digital, it can be reproduced time and time again with no degradation."(2)

In a nutshell, manipulation of images has never been so easy, accessible, and widespread. Mainly, it has been governed by the copyright law that recognizes the derivative work.(3) It has some implications, however, for legal problems in other fields of law(4) such as defamatory manipulation of digital images without knowledge of original authors, subjects, or sources, and the dissemination of highly offensive false publicity about someone with knowledge of the falsity or with malice. Although no libel and false light cases involving digital manipulation have reached the Supreme Court yet,(5) digital manipulations are common in various forms of media, particularly in magazines and on the Internet. The fact that many magazines have web versions of their publications increases the likelihood of wide distribution of altered images.

This article examines the development of digital technology and explores evidentiary behaviors that courts have considered and scholars have categorized as evidence of actual malice in libel and false light cases. It then discusses several examples of manipulation including the stories of the Egyptian pyramids, Oprah Winfrey, and O.J. Simpson. Dustin Hoffman v. Capital Cities/ABC, Inc.(6) and Masson v. New Yorker Magazine Inc.(7) also are discussed to support the position that intentional manipulation of digitized images should be considered as evidence of actual malice in both libel and false light cases.

I. DIGITAL TECHNOLOGY AND THE INTERNET

The world of digital technology is an interactive one, different from the world of the printing press and the analog technology on which most current laws are based. Interactive patterns of information constantly are evolving and adapting to their surroundings.(8) "Physical limits do not restrict the number of copies of a work that can be transmitted by electronic means. Similarly, no ceiling exists as to the number of recipients that can receive the work or where they may receive it."(9)

The technology digitizes all works in a universal format.(10) Scanners break down the image into geographic picture elements known as pixels.(11) The pixels represent different characteristics of the image, and "the digital scanning device operator can manipulate the pixels in a variety of ways: colors can be changed, brightness of shadow added, elements of the picture removed entirely, or elements from other images added."(12)

An important advantage of digital technology over analog recording lies in its ability to change the contents in digitized recordings after they are made. "[T]he digital record would remain comparatively accurate as each copier could interpolate unclear letters and words from the rest of the document."(13) Digital systems are both less expensive and faster than comparable analog systems.(14)

Consequently, images can be stored in a computer, transmitted to another computer, printed on paper or displayed on a video screen. …

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