In an article published in the Journal of Telecommunications and High Technology Law, Above the Law founder David Lat and Criminal Justice and Criminology professor Zachary Shemtob discuss what it means, under American defamation law, to be a public figure in today’s digital age.
The authors provide a concise overview of the key U.S. Supreme Court decisions pertaining to public figure status (see pp. 405 – 407 of the article).
Lat and Shemtob’s main focus, however, is examining Rosenbloom v. Metromedia Inc., 403 U.S. 29 (1971), specifically Justice Brennan’s plurality opinion where he “rejected the distinction between public and private figures in the defamation context, expressing the view that the New York Times standard [New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964), which held that public officials can’t recover damages for defamation without proof that the statement in question was made with “actual malice”] should apply to all reports of events of ‘public or general concern.’ ”
The authors note that Justice Brennan’s opinion didn’t serve as a definitive position on whether New York Times applies to private individual’s defamation suits, but argue that it holds far greater relevance today than Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which is the governing law in this area.
When Gertz was decided in 1974, false charges could only be countered through access to a printing press, radio station, or television network—modes of communication that ordinary citizens generally could not tap into. In 2011, however, methods of communication have expanded and changed dramatically. Thanks to the phenomenon of blogging and the rise of social networks like Twitter and Facebook, ordinary citizens have historically unprecedented access to effective communication channels. One can refute false charges not just through newspapers, radio, or television, but through a proliferation of online outlets as well. Aggrieved subjects of media coverage no longer need a newspaper to print retractions of letters to the editor; instead, these subjects can go out and tell their own side of the story on a blog or social networking site.
In further support of their position, they point out that the digital age has significantly eroded the ‘public figure’ versus ‘private figure’ distinction, since we now live in a world with a long tail of minor celebrities and an influx of niche celebrities.
They also accurately point out that technology has led to an erosion of privacy:
In this day and age—of blogs, where our private misadventures can be written about at length; of streaming video and YouTube, where said misadventures can be seen and heard by total strangers; of Facebook, where “friends” can post pictures of us, against our will (maybe we can “de-tag,” but we can’t remove); of full-body scanners at the airport— …. we are more “public” and more interconnected than ever.
They counter the criticism of adopting the Rosenbloom rule of applying the “actual malice” standard to private individuals as long as the subject matter is of public or general concern with the following:
- The few U.S. states that have adopted Rosenbloom haven’t proven that the rule is unworkable or resulted in excessive defamatory speech
- Where Rosenbloom results in a more favorable environment for publishers and speakers, it’s a reflection of the law’s already existing accommodation of technological advances (e.g. Section 230 of the Communications Decency Act of 1996, which replaced the tort law doctrine of republication liability)
- Adoption of the Rosenbloom rule is not the most extreme pro-media/pro free-speech position one could take
Although controversial, Lat and Shemtob’ article is recommended reading for those interested in free speech and defamation law.
One of the dangers of online hostility isn’t just the damage that can be inflicted by the communications’ specific content, but the fact that these communications, even when they are factually incorrect or defamatory, are, by virtue of being published online, instantaneously disseminated around the world without possibility of retraction.
According to legal information firm Sweet and Maxwell, over double the number of libel claimants in the U.K. cited material published on the internet in their legal actions compared to the number of cases from the previous year.
Media barrister Korieh Duodu says that the problem stems in part from the fact that “much material on the internet is written by non-professionals without any of the fact-checking in traditional media organisations.”
“People who find themselves damaged on social media sites can often find it time-consuming and difficult to have the offending material removed, because many platform providers do not accept responsibility for their users’ content.
Such is the speed at which information travels through social networks that one unchecked comment can spread into the mainstream media within minutes, which can cause irreparable damage to the subject who has been wronged.”
There are important reasons to support online anonymity and equally good reasons to oppose it.
“I think anonymity on the Internet has to go away. People behave a lot better when they have their real names down. … I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.”
Zuckerberg’s observation is correct, people DO hide behind anonymity to say and do all sorts of nefarious things.
On the other hand, privacy and free speech advocates are correct when they argue that anonymity is necessary to protect certain individuals like whistleblowers and those living in unsafe conditions or politically repressive regimes.
Certain groups are particularly vulnerable to online hostility and attacks, such as children, GLBT, victims of domestic abuse, people from a persecuted religious or cultural minority, and others. The question of whether to support or oppose online anonymity is context-specific — it depends on the particular facts and situation involved — and the issue should’t be approached with a overly simplistic either/or stance.
At CiviliNation, we strongly believe that anonymity as an option needs to be preserved to help protect certain vulnerable and at-risk members of society, but that many people engaging online anonymously or under pseudonyms do so for less-than-honorable reasons in order to avoid responsibility and accountability for their hurtful actions. It’s the latter group that should not be allowed to misuse anonymity and pseudonymity for hateful, socially unacceptable, or legally actionable purposes.
Last year I meet with law professor Daniel Solove in Washington D.C. to talk about cybercivility and the law. Solove, who teaches at George Washington University Law School, is the author of the book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007), which won the 2007 McGannon Award.
What compelled Solove to write The Future of Reputation? According to the preface:
“The idea for this book came to me soon after I began blogging in May 2005. I found blogging to be enthralling and invigorating. I was fascinated by the thrill of expressing my thoughts to a broad audience yet acutely aware of how people could be hurt by gossip and rumors spreading over the Internet…. When it comes to gossip and rumor on the Internet, however, the culprit is ourselves. We’re invading each other’s privacy, and we’re also even invading our own privacy by exposures of information we later come to regret. Individual rights are implicated on both sides of the equation. Protecting privacy can come into tension with safeguarding free speech, and I cherish both values.”
Solove argues that the current legal system doesn’t adequately address the challenges people face in an online environment, and proposes suggestions for change. It should be noted that he isn’t the only legal scholar to examine this issue – more recently others, notably Danielle Keats Citron, as well as Ann Bartow, Mary Ann Franks and Nancy S. Kim, have written about this as well. Yet outside traditional legal circles, Solove’s book is arguably perhaps the best known work on this topic.
In examining the role the law might take in addressing issues of reputation and privacy, Solove takes issue with both the purely libertarian and authoritarian approaches, proposing instead (see chapter 5) a “middle ground approach” that “would be to help shape the norms that govern the circulation of information. As people are discovering the profound power to disseminate information across the planet, they often continue with gossip as if there were no difference between real-space and cyberspace. The law should ensure that people better understand the dramatic difference between gossip offline and online.”
He regards the law as a critical component in stemming online hostility, noting that:
The law should expand its protection against irresponsible Internet postings, but only after disputes have been proven insoluble via informal means or alternative dispute resolution. In other words, the law should cast a wider net, yet have a less painful bite.
The primary goal of the law should be imparting a sense of responsibility on those who post online, deterring the spread of gossip and rumors in cyberspace, and creating incentives for parties to resolve their disputes informally.
This seminal book, comprised of chapters such as How the Free Flow of Information Liberates and Constrains Us, Gossip and the Virtues of Knowing Less, Shaming and the Digital Scarlet Letter, The Role of Law, Free Speech, Anonymity, and Accountability, and Privacy in an Overexposed World, is an important resource for anyone interested in participating in a discussion of cybercivility and the law’s role in resolving online conflicts.