Internet Libel or Defamation
Defamation is a communication which tends to injure an individual’s
reputation as that term is used in the popular sense. The communication
is calculated to injure the reputation of another by exposing him to
hatred, contempt or ridicule,or impairs the standing of a person as
being honorable. Defamation may be a statement of fact or an expression
of opinion which implies allegations of defamatory facts. The
objectionable words must be measured by their most natural meaning and
in the sense in which they would be understood by those to whom they
were addressed. Such words must be measured by the natural and probable
effect on the mind of the average reader rather than subjected to the
critical, and sometimes cynical analysis of the legal mind.
In the context of the NCCA, a privilege permitting defamatory statements
is generally recognized if the same are made in good faith on a subject
matter in which the person communicating has an interest, or in
reference to which he has a right or duty, and most importantly, if made
and limited to persons with a corresponding interest. The essential
elements are good faith, an interest to be upheld, a statement limited
in scope to this purpose, a proper occasion, and publication in a proper
manner and to the proper parties only. Even this privilege is not
protected if the defamatory statements are made with malice. In
addition, where this privilege is permitted, then it will only be
recognized if communications are made for a proper purpose and the
statements are not made in excess of interest or duty (i.e., the
statements contain extraneous, false or irrelevant matters not germane
to the inquiry) and there must not be excessive publication which
reaches persons who have no interest in the inquiry, and the statements
must not use excessive, violent or intemperate language, or otherwise
goes beyond what a privileged occasion demands.
The First Amendment privilege of the institutional media is a recognized
privilege, but that privilege is only recognized in matters arising from
public proceedings (legislative, judicial or other official proceedings)
and public figures (any person pervasively involved in public affairs).
The directors, officers and members of the NCCA do not qualify as public
officials nor are they public figures.
If the internet is the means of publication of a privileged defamatory
statement, then a special issue arises. The defamatory statements reach
more than just the individuals with an interest in the NCCA and
literally millions of people unrelated to the private, not public,
interest involved can see the defamatory statements.
The Supreme Court crafted the First Amendment privilege of making
defamatory statements for the benefit of institutional media and its
decisions make it clear that these three questions must be answered
“yes” for the privilege to apply: (1) Is the person making the
statements entitled to protection as a member of the institutional
media? (2) Is the person involved a public figure? and (3) Is the speech
at issue of public concern? To be part of the institutional media
normally means, television, radio, newspapers and periodicals, but it
does not address or include the medium of the internet. If the answer to
all three questions is “yes” then he is a “journalist” and potentially
defamatory statements can be made with impunity and without legal
consequence. The person defamed must be a “pervasive public figure” who
affects matters of “general public concern”. This would include
government officials, famous people, or even an extravagantly rich
person. Being a matter of “general public concern” means it affects many
people, from everyone on the planet to everyone in the county or city,
or a significant number of people from many locations, for example.
Although internet communications may have the ephemeral qualities of
gossip with regard to its accuracy, they are communicated through a
medium more pervasive than print. For this reason, they have tremendous
power to harm reputation. Once a message enters the cyberspace, millions
of people worldwide can gain access to it. Even if the message is posted
in a discussion forum frequented only by a handful of people, any one of
them can republish the message by printing it or, as is more likely, by
forwarding it instantly to a different discussion forum. And if the
message is sufficiently provocative, it may be republished again and again.
Consequently, the internet is a particularly bad place for the unwary
commentator to make private defamatory statements about an individual.
There are legions of lawsuits filed against bloggers or website
commentators who improvidently say things which harm people and
businesses. Free speech is important and the internet is a good place
for free speech, but it must be limited to civilized and absolutely true
speech to be protected. It is not a place for excessive insinuations,
exaggerations, accusations or derogatory declarations due to the
internet’s infinitely powerful ability to disseminate bad information.
The extraordinary capacity of the internet to replicate almost endlessly
any defamatory message lends credence to the notion that “the truth
rarely ever catches up with a lie”.