While online defamation has existed since the Internet was first made accessible as a public computer network, the threat presented by such libelous content has been exacerbated by the advance of the Internet as an everyday reporting and social media tool.
The rise of websites such as Jerk.com, which openly encourage readers to post defamatory content about both public and private individuals, has raised very thorny legal and socio-political issues about defamation and bullying, and are testing the outer limits of free speech in an online world.
Specifically, Jerk.com call itself: "Public Service personal news." It "reports" not only on public figures engaging in public activity (e.g., WIll Smith slapping an overly affectionate reporter); it also reports on private individuals, allowing writers to call them "home wreckers," "army sluts" who "sleep around with married men," "racists," "meth-heads," "drunks," and the like.
The Legal Difficulties With Proving Online Defamation
Much of the difficulty that surrounds successfully winning an online defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statements were factually and objectively false and written with the intention of causing damage, and not just reflecting a subjective opinion.
Generally, the elements that must be proved to establish defamation are a publication to one other than the person defamed; a false statement of fact that is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff. If the plaintiff is a public figure, he or she must also prove actual malice.
Therefore, since truth is an absolute defense to any defamation case, a plaintiff who purports to have been defamed and injured opens himself up to a wide berth of discovery into his otherwise private conduct.
Further, identifying a specific individual that has posted a defamatory comment online can prove difficult. It is possible to geolocate a computer that was used to publish a statement or post content online through the use of geolocation.
However, with Internet access offered anonymously in Internet cafes, libraries, businesses, and other public areas, this can make it difficult to find the true source of the illegal content.
The Communications Decency Act of 1996 (CDA) was created in a bid to combat indecent as well as defamatory content found on websites and online publications.
Section 230 of the CDA attempts to legislatively address an Internet Service Provider's liability to content that is stored on its servers. Although it does not specifically address all possible circumstances, it does broadly provide that an ISP is not legally held responsible for the information published by their users unless and until they are informed of any specific infringement; at that point, the ISP should act to remove the content or face legal action themselves.
The Communications Decency Act of 1996 can be viewed in full at the FCC website: http://www.fcc.gov/Reports/tcom1996.txt
Some commentators have suggested that the online world has evolved dramatically since the CDA was passed in 1996, and that it is due for an overhaul. What do you think?