Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates the prototypical “marketplace of ideas” than do warring politicos duking it out on the op-ed pages or, for that matter, in opposing briefs. However, the very features that make the internet fertile ground for cultural and political discourse—anonymity and pseudonymity; intellectual symbiosis and parasitism; fractal sprawl, audience dispersal and many-to-many architecture—render it a treacherous landscape for its custodians. In recognition of that fact, Congress in 1996 passed the Communications Decency Act, which nearly eliminated the liability that website administrators face for third-party generated content.
However, Congress may not have adequately anticipated how badly people behave when they know no one is watching —a lapse in judgment that has grown increasingly conspicuous as internet users have become more sophisticated and successful in their efforts to avoid identification. While statistics on the phenomenon are unavailable, it is apparent that defamation in particular has begun to occur online with alarming frequency. However, there is reason to believe that we should be less concerned with digital libel than its print and broadcast analogs. This article will explore the critical differences between libel in traditional and digital media frameworks, and propose a scheme for the regulation of online defamation that can accommodate the internet’s unique structure.