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.

II. LIBEL IN PRINT AND BROADCAST MEDIA

A. History

Given the propensity for irreparable reputational harm when an individual is publicly maligned, the English courts began punishing defamatory statements as early as 1500. At first, the truth or falsity of such a statement was considered immaterial to a defamation action; however, by the mid-sixteenth century, some courts started to recognize a number of defenses to libel, truth among them:
As libel law matured, however, it lost its simplicity. Various defenses—justifications for punishing libels—sprang up. Truth was one. Privilege was another. Fair comment was a third. Even the publishers of untrue defamations, in some jurisdictions, were protected if they honestly believed the material they published to be true. In other jurisdictions, however, a publisher could be severely punished for publishing false libels, regardless of motives, regardless of the status of the person about whom the material was published.

The English common law tradition of libel was imported to the colonies and largely incorporated by the American judiciary, even after the passage of the First Amendment. However, contrary to the common law English tradition, the political climate of early nineteenth-century America entailed that political libel—speech affecting governmental, rather than private, reputation—frequently went unpunished. When it was penalized, it was generally via civil, rather than criminal, sanctions :
The early years of the republic clearly were accompanied by an acceptance of—and an eagerness for—political polemic, part of what some called the “politics of controversy.” Readers did not take libels literally. Unrestrained public debate was part of the price to be paid for liberty. And it was entertaining.

American libel law’s focus on compensating harm to private persons was well-tailored to suits arising from traditional media because their tightly constrained markets created the propensity for enormous and irreparable reputational damage. In the case of print media, that constraint was the product of relatively high production costs and a finite readership. This meant that only a very small number of magazines and an even smaller number of newspapers, in one geographical area or on one subject, could be sustained. In the case of radio and television, an additional constraint was the product of the limited broadcast spectrum, a structural restriction of no small importance for libel law. Even so, the restriction became increasingly irrelevant with the proliferation of cable and digital television and satellite television and radio. In whatever form, a small number of large, powerful conglomerates with exclusive access to publication technologies and their large and typically dispersed audiences have dominated traditional media markets because of those restrictions. Because such media have the power to substantially influence a large audience otherwise difficult to locate, they have the power to do irrevocable harm to individuals’ reputations, and those who suffer such injury have little recourse to self-help (see discussion, infra II(B)), even when the information used to defame them is untrue. As a result, in a traditional media framework, the courts decided that the compensation of actual damages was the best proxy for repairing the harm done by libelous speech.

B. Actual malice

The courts also recognized, however, that in attempting to curb damage to individuals’ reputations, they risked unwittingly shutting down constitutionally protected speech as well. Any punishment for libel had the propensity to have a chilling effect on speech because it might prompt publishers to avoid responsibility for the consequences of its publication by preemptively eliminate controversial material. Thus, in New York Times Co. v. Sullivan, the Court attempted to broker a peace between the First Amendment and contemporary libel law by instituting the “actual malice” standard—the requirement that, in order to be held liable in a defamation action brought by a public official, the publisher of a false and injurious statement must have published it with knowledge of or in reckless disregard of its falsity.

The Court premised its distinction between public officials and private individuals first on an access differential between the two types of plaintiffs. Because private individuals largely lacked the ability to directly rebut false and defamatory statements made about them, self-help could not be considered an appropriate remedy for such plaintiffs. By contrast, self-help was far more frequently a viable option for defamed public officials, because as persons in positions of relative power, they often had either direct access to the media or the persuasive power necessary to obtain such access. Furthermore, as the Court made clear in a subsequent case, the distinction between defamation of public and private individuals was further justified by public individuals’ willingness to engage in public disagreement, as evidenced and necessitated by their decision to enter civic life. By deciding to participate in public affairs, the Court reasoned, officials knowingly assumed the risk that they would be criticized brashly, and sometimes unfairly; as a result, they had less right to complain when they were maligned.

In addition to simply reducing the number of successful libel suits, the distinction between public and private figures addressed the problem of chilling effects in two ways: first, it made it difficult for plaintiffs to recover on the basis of politically motivated statements (those pertaining to official conduct), which meant that it would tend to lift publisher-imposed constraints on political speech. This change directly comported with the political expression principle of the First Amendment. Additionally, coupled with the simultaneous barring of punitive damages for public officials, it eliminated many of the most powerful potential plaintiffs—those with the potential to run roughshod over publishers by way of huge defamation suits—and thereby eliminated much of the fear of catastrophic loss that drove publishers to censor their own publications.

While the Court at first applied the actual malice standard only to public officials, it quickly extended it to “public figures,” those persons whose non-governmental positions of power rendered them practically indistinguishable from public officials with respect to their access to the media and, more importantly, the public’s legitimate interest in their affairs. Chief Justice Earl Warren explained the doctrinal expansion in his concurrence in Curtis Pub. Co. v. Butts:
[B]lending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. Viewed in this context, then, it is plain that although they are not subject to the restraints of the political process, "public figures," like "public officials," often play an influential role in ordering society. And surely as a class these "public figures" have as ready access as "public officials" to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of "public officials." The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

The Court thus extended the actual malice standard to general public figures—leaders of business and culture, as well as limited-purpose public figures—who operate as private figures, except in the context of a particular controversy in which they are voluntarily involved. In carefully calibrating the distinction between public and private in this way, the Court made clear that it was concerned not with singling out those who have traditionally been considered part of governmental processes, but also those who willingly involve themselves in media affairs in the same manner as do public officials.

[NOTE: Footnotes in this abstract were omitted. The full abstract with footnotes can be found in PDF form here]