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Libel in Cyberspace: Attorney Weighs the Various Possibilities

Magazine article Editor & Publisher

Libel in Cyberspace: Attorney Weighs the Various Possibilities

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THE CAPABILITY OF determining who, and how many, subscribers read a certain article in an electronic database might have an undesirable consequence for publishers, according to Robert Sack, attorney for the Wall Street Journal and author of a book and CD-ROM on libel.

Sack, who spoke on libel issues at a recent Practicing Law Institute seminar on communications law in New York City, thought that perhaps the "most troubling" implication of "libel in cyberspace" might be the prospect that courts would determine that a certain article was not a matter of public interest.

He titled this aspect the "Greenmoss" issue, after the 1985 U.S. Supreme Court opinion that made constitutional protection for libel defendants dependent on the purpose of the speaker and the size and nature of the audience. Unless the libel is a matter of public concern, plaintiffs may not need to prove either actual malice or negligence.

Because the Greenmoss case involved a credit reporting agency as a defendant, and has generally been applied only to similar defendants with limited audiences, it has not affected mass media.

But if the presumption that the news in such media reaches a wide audience can be rebutted, then the media may find themselves without the First Amendment protection that has led to a 90% success rate for media defendants in libel cases.

"Suppose a newspaper puts in its electronic news that a certain company is going bankrupt, and, during discovery [in the ensuing libel case], that company learns that only five people pulled it up," Sack suggested.

With the exception of the medium under discussion, those were the same facts that governed Greenmoss, and Sack observed that courts might well rule, in such a scenario, that news media would be treated no differently than credit reporting agencies.

Sack envisioned four other key issues regarding libel in cyberspace: jurisdiction, date of publication, corrections and actual malice, and insurance.

"If the Internet goes to Kenya and there is something on the Internet about somebody in Kenya, can you be sued in Kenya?" Sack asked. "For local publications that one way or the other are in cyberspace, that is a very real problem" he added. "Traditional law might well hold there is jurisdiction elsewhere."

There are "limitless liabilities" in cyberspace and the jurisdictional issues go beyond libel, according to fellow Practicing Law Institute panelist Harry M. Johnston III, general counsel for Time magazine.

"You can publish something on Compuserve and it gets picked up on another service in Australia, and the original author can then be found in contempt in Australia," Johnston said. …

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