Computers/Internet: Web Revenge II

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by Dick Wilde
Personal publishing on the Web can be fast and easy. So easy, in fact, that many folks with a festering grudge or a burning need to get back at someone have exploited the Web to broadcast their rage and accusations. As satisfying as that ability to publish instantly can be, it can also put you into a world of legal hurt, and right quick.

In the first installment of this "Web Revenge" series, I discussed how many people have sought to use personal homepages to post attacks on their rivals, former spouses, or employers. A good number of these people soon came to find out that these postings can be actionable under state and even federal law.

So, if you have a Web page, or are about to build one using Tripod's industry-leading Free Homepage Builder (a shameless plug, I admit), here's a quick guide to some of the laws which have been the basis of lawsuits against Web publishers. (Remember, these legal definitions are broad; precise definitions vary according to the applicable law in your state or jurisdiction.)

Defamation, also known as "Defamation of Character," is defined as spoken or written words which "falsely and negatively reflect on a living person's reputation." Defamation comes in two forms: "Slander," which is spoken defamation, and "Libel," which is written defamation. Libel law is, by the way, based on an ancient Roman Law which prohibited "evil songs that injure a person's honor or reputation." Since Internet publishing consists predominantly of text and graphics, most defamation cases are brought under applicable state libel laws.

If you publish a Web page attacking a private individual and your text falsely characterizes that person in a manner which is interpreted to damage his or her reputation, you could be successfully sued for civil libel and invasion of privacy in most states. In bringing a civil lawsuit for libel, the individual bringing the suit must prove that the libel refers to him or her, and serves to injure his or her reputation. It is important to remember that libel against a private individual is relatively easy to prove with the "injured-reputation test"; for public figures, however, it is far more difficult to successfully bring a lawsuit for libel.

Under the landmark First Amendment decision in New York Times v. Sullivan 376 U.S. 254 (1964), the U.S Supreme Court set a higher standard for libel of so-called "public figures," finding that public figures cannot prevail in a libel action unless they can prove beyond reasonable doubt that the offending article was published with "actual malice." (Who is a public figure? According to Justice Brennan, anyone who voluntarily "thrusts" themselves into the public spotlight, e.g. elected officials, movie stars, professional athletes, television evangelists, etc.)

The Court's reasoning is based on the primacy of "uninhibited, robust, and wide-open" debate and the belief that public figures who have voluntarily "thrust themselves into the public eye" are better able to answer published potentially libelous attacks directly. Private citizens, in contrast, are afforded more libel protection as they have not voluntarily placed themselves in the public spotlight and lack the opportunity to defend themselves from published attacks.

Thus, the following hypothetical example, if published, would be a libel:

"My neighbor, John Smith of Anytown, is a dirty liar and a drunk who beats his wife."

This statement would almost certainly be found libelous as it attacks a private individual in a manner which injures his reputation. Yet the following would not constitute libel:

"Bill Clinton is a dishonest, womanizing liar who lies and cheats and steals at any opportunity."

Bill Clinton, as President of the United States is perhaps the world's most visible public figure, and would thus have little chance to prevail in a libel action based upon the example above. However, if an individual were to publish or even e-mail a statement about the President which could be interpreted as a physical threat, they would almost certainly be liable for prosecution under federal laws against threatening a federal elected official. (In case you didn't know, the United States Secret Service takes such matters very seriously, as a number of student pranksters have found out to their regret.)

Sure, your local enemies or your ex-wife may never learn that you published a Web page attacking them, but you can be sure that similar attacks against major corporations will get noticed. Fast. According to the Washington-based Reporters Committee for Freedom of the Press, "A corporation may bring a libel claim if the alleged defamatory statement raises doubts about the honesty, credit, efficiency, or prestige of that business." Sound broad? It is, and rest assured that most corporations will tend to interpret any public attack published against them as defamatory and actionable under applicable law.

Many of the more vehement attacks posted by individuals on the Web have been targeted against major international corporations, most famously McDonalds, K-Mart, and America Online, to name a few. These large multinational corporations pay top dollar to staff their legal departments with some of the nation's best legal talent and, as a rule, they pursue any public attack or appropriation of a company brand, trademark, or logo aggressively. These companies have spent billions of dollars establishing, crafting, and protecting their consumer brands and products, and they will not hesitate to expend tremendous resources to protect their investment.

So what's the moral of this story? Personal publishing is a tremendous advance for individual expression and has afforded untold millions of people access to a global platform for their ideas, beliefs, and interests. Yet, while today we enjoy some of the strongest free speech rights in the history of human civilization, free speech on the Internet — just as in real life — is far from absolute. Just as everyone knows free speech doesn't give you the right to "yell 'Fire!' in a crowded movie house," it also does not allow you to use your Web page to reap revenge by deliberately harming or discrediting others.

To put it another way, play nice or it's your ass.

If you decide not to take my advice, here are some useful resources which will provide some definitions and background on what you need to know before you go cyber with your grudge. Check out:

Libel & Slander:
Excellent legal definitions and guidance from the folks at freeadvice.com.
Cyberlibel — The Web Site:
The name says it all!
The New York Times CyberLaw Index:
Excellent news coverage of the latest cases and issues in online defamation, libel and other revenge-related confrontations.

Dick Wilde is Tripod's Production Manager. He is an international lawyer who holds both American and European legal degrees, and has practiced in Austria, The Netherlands, and the United States.

Illustration by Federico Jordan

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