Written by: Tracy Frazier
Researched by: Daniel Kwak
Edited by: Casey King
Managing Editor: Lauren E. Trent

The internet is the Wild West of free-flowing information-few rules apply and everyone is trying to stake their claim. To many, the internet is the quintessence of free speech and the First Amendment. Others worry that this free expression-shielded by user names and faceless aliases-allows otherwise respectful people to unabashedly malign their colleagues. This mix of free speech and anonymity is potentially explosive, as has recently been the case with several message-board sites.

Several years ago, two female Yale Law students named Brittan Heller and Heide Iravani found shocking posts on AutoAdmit.com, the self-proclaimed “most prestigious law-school discussion board in the world.”  The postings alleged that the women had sexually transmitted diseases and had used bribery and sex to advance in law school. These allegations were damaging to these women, who understood that many legal employers use Google as a means of performing a background check. After being rejected from all positions for which she applied, one of the women asked AutoAdmit.com to take down the posts. When they repeatedly refused, the two women teamed up and sought legal redress. In August 2007, Heller and Iravani brought suit against dozens of their online tormenters in a New Haven federal court. The women sought monetary damages, but ultimately the suit was an effort to clear their names and protect their legal careers. Yet they also sent a message to others: you will be held accountable for what you write online.

The women brought suit under the claim of libel. Libel, a subcategory of defamation, is a derogatory statement made in a printed or fixed medium, such as a magazine or newspaper. The elements of a libel cause of action include: a false and defamatory statement concerning another; the unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); and damage to the plaintiff. Material that is factually accurate is not libel. Also, context matters: courts have held that given the nature of online forums, online comments cannot be taken as seriously as those made in real life or in the media. Because of these requirements, bringing a claim for internet libel is a challenge.

The Kingdom of the Passive Aggressive

AutoAdmit.com was created as an alternative to the Princeton Review’s website for candidates seeking admission to law school. While the Princeton Review monitored and removed problematic content from their site, AutoAdmit.com’s founder, Jarret Cohen, and his assistant Anthony Ciolli advertised that, “no thread, ever, would get vaporized by the thought police.”  True to their word, Mr. Cohen and his assistants rarely removed threads, even when expressly asked to do so.

Websites such as AutoAdmit.com or Abovethelaw.com provide a forum for comments on essentially any topic imaginable. Hidden behind the shield of a screen name, users of these sites are emboldened to post without fear of backlash or accountability. Other websites actually encourage libelous and defamatory content from users. Proponents of free speech on the internet argue that the internet is a unique medium-the modern town square for the free exchange of ideas.

Regardless of their form, what all of these sites have in common is that they are merely intermediaries; they do not generate the content that they broadcast. Many of them do not monitor posts and even fewer are likely to take down libelous content on their own. For sites that will remove content when asked, the libeled party often learns about the material after it is too late and the comments have already created harm.

Like My Congressman Always Said: If You Don’t Have Anything Nice to Say…

Who should be responsible for the content displayed on a website: the intermediaries or the posters themselves?  And what should be the limits of online anonymity?  The courts first posed this question in the context of internet providers and their message boards in the 1990s, while the internet was still in a state of infancy. The courts were divided on the issue, and the government resolved the split by creating the Communications Decency Act of 1996 (“CDA”), which amended the Telecommunications Act. This act allowed censorship of material broadcast on the internet by prohibiting patently offensive material and criminalizing the act of “knowingly” transmitting such information. While the CDA was enacted to address the transmission of pornography, the entire internet came within its purview.

The CDA was highly criticized by many journalists, First Amendment supporters, and internet users. Within a year of its inception in 1996, the United Supreme Court struck down two provisions of the CDA as a violation of the First Amendment in Reno v. ACLU. The justices found that sections 223(a) and 223(d) were overly broad and lacked the precision demanded by the First Amendment, which requires that any restriction on free speech be narrowly tailored. Post Reno, websites such as AutoAdmit.com and TheDirty.com were able to flourish without fear of censorship, and thus, without fear of liability.

TheDirty.com, possibly one of the more egregious examples of an internet libel site, encourages its users to post pictures of ex-girlfriends or boyfriends, “skanks,” celebrity gossip, and accompanying scathing commentary. The site does not remove insulting content, nor does it have to. Similarly, Google-unquestionably the internet’s premiere search engine-proclaims that “Google does not remove allegedly defamatory material from our search results. You will need to work directly with the webmaster of the page in question.”  Yet even Google has its limits, and after repeatedly refusing to remove the Autoadmit.com’s posts, in March 2007 it informed the webmasters of AutoAdmit.com that they had violated their terms by posting advertising for their site along with adult content.

Don’t worry, an expensive and difficult lawsuit is all it takes to get past this.

The remedy for people that have been harmed by online libel is unclear, as the harm is often not neatly defined. While some courts might find that some postings constitute intentional infliction of emotional distress, many other posts, however tormenting, might not be viewed as extreme enough to outweigh their First Amendment protection.

Further, as was the case with Heller and Iravani, the injured party may not even know the identity of the poster. Heller and Iravani had to subpoena AutoAdmit.com for a release of this information. With concerns over confidentiality, the defendants moved to quash the subpoenas. The court outlined several factors for determining how to rule on this issue: (1) whether the plaintiff undertook efforts to notify the anonymous posters that they are the subject of the subpoena; (2) whether the exact “problematic” statements would constitute actionable speech; (3) the specificity of the discovery request and “whether there is an alternative means of obtaining the information called for in the subpoena;” (4) whether there is a “central need for the subpoenaed information to advance the plaintiffs’ claims;” (5) whether the subpoenaed party had an expectation of privacy when the online material was posted; and (6) whether the plaintiffs have made an “adequate showing” as to their claims. After weighing these considerations, the court denied the defendants motion to quash.

Online companies such as ReputationDefender.com and ReputationProfessor.net offer services to those who have been libeled online. These sites will track down postings, demand that the content be removed, and pursue legal recourse if necessary. Nevertheless, libel lawsuits are difficult to win, as the injured party must show that the allegations caused damages. Because online slander has turned into a bit of an epidemic, some states such as North Carolina have proposed bills that would make libel unlawful and punishable when communicated through an electronic medium. Other proposed legislation in New Jersey similarly protects libeled individuals and criminalizes specific salacious postings.

Without a doubt, statements posted online can damage careers, reputations, and a person’s sense of security. For those who feel injured by online libel, these proposed bills provide a possible means of protection that the court system has not provided. Yet for many, these restrictions on internet content violate the very spirit of the world wide web. Unlike print media, the internet is relatively nascent… it may take a while for a happy medium of sorts to be established. After all, the Wild West was not tamed overnight.