III. The Internet, Electronic Communications, and the Global Revolution

The third major trend in defamation, and perhaps the most important trend, relates to the democratization of communication speech technology.⁷² Recent decades have brought with them a virtual explosion in the types and sophistication of speech technology. This trend threatens to minimize the tort of defamation and make it more difficult to vindicate reputation through the legal process.

The history of speech communication is intricately intertwined with the development of technology. Prior to Johannes Gutenburg’s development of the printing press in 1436,⁷³ citizens had limited means at their disposal for communicating with each other. The cheapest method involved oral methods of communication. But oral methods were an extraordinarily ineffective means of reaching mass audiences. Of course, communications could be reduced to written text and distributed. However, prior to the invention of the printing press, written texts could only be produced slowly and laboriously by hand. The printing press was revolutionary because it allowed people to disseminate their ideas far more widely and effectively.

Since the development of the printing press, modern humans have witnessed a virtual explosion in the quantity of speech technologies. In the Nineteenth Century, telegraph lines made communication much easier and quicker. Then, in the early part of the Twentieth Century, the development of the telegraph and of broadcast technology (in particular, radio and television) similarly revolutionized communications technology.

However, recent decades have brought with them a virtual revolution in speech technology. Traditional printing presses and broadcast technology have been virtually overwhelmed (although not necessarily rendered obsolete) by the development of an array of new speech technologies. In addition to the Internet, other developments include the growth of cable television, satellite communications, and cell phones which now come with text messaging and an array of other content.

These new technologies have not only revolutionized speech communication, but have redefined the nature of communication in important respects. The dominant feature of modern communications is “democratic nature.” In other words, these technologies are available very inexpensively, and therefore enable mass participation in speech. In this respect, modern technologies are decidedly different than earlier speech technologies. Printing presses are expensive to purchase, and therefore were not readily available to all. While someone who did not own a press could pay a press owner to publish a text, the costs (in terms of printing and distribution) could be substantial. With broadcast technology, the barriers to entry were even higher. Because of a limited number of air waves, and therefore a limited number of broadcast licenses, not everyone could hold a broadcast license. While non-license holders could purchase air time from license holders, the cost was prohibitive for many.

With the Internet, as well as with other modern speech technologies (e.g., text messaging), the barriers to entry and access are extraordinarily low. For one who wants to communicate via the Internet, a computer and Internet access can be purchased relatively cheaply. Those who cannot afford to own their own computers, or to pay for Internet access may gain Internet access cheaply through an Internet café or for free through a public library. As a result, virtually anyone can gain Internet access in one form or another. Moreover, anyone who can access the Internet (or, for that matter, a cell phone and text messaging system) can broadcast information to people around the world through web sites, chat rooms, e-mails, list services (which retransmit e-mails to everyone on the list), news groups, and the World Wide Web. . The net effect is that hundreds of millions of people now have access to modern speech technology, and that number is expected to grow dramatically in the coming years.⁷⁴ Increasingly, in recent years, U.S. political candidates have relied on the internet to raise funds and communicate their message, and individuals have used the internet to impact the political process.

As Internet traffic increases, it is difficult to know how the Internet will affect defamation standards. One thing that might happen is that the Internet will help break down differences between countries in terms of their defamation standards. Internet communications cross jurisdictional boundaries so that a defamation defendant who resides in a very pro-defendant jurisdiction (i.e., the U.S.) may transmit information into a pro-plaintiff jurisdiction. If the Internet defendant can be made to answer in the pro-plaintiff jurisdiction, there is a very real risk of incurring liability. As a result, in communicating on the Internet, potential defendants may restrict their speech so as to conform to the laws of the most restrictive jurisdiction to which they transmit information. This is particularly acute where state policies are at loggerheads. For example, privacy protection in Europe is more extensive than in the United States. This exposes United States actors to significant liability in Europe. At this level state instrumentalities may intercede to negotiate compromise.⁷ The stakes are high as the ability of entities to transact business may be inhibited.

But, in an Internet era, the tort of defamation may be less valuable to plaintiffs than it was in earlier periods. For one thing, a plaintiff’s hope for a pecuniary recovery, and the potentially chilling effect which comes from a large pecuniary award, may be decidedly lower in the Internet era. In an age of newspaper or broadcast communication, a defamed individual usually had a “deep pocket” to sue. If the individual defamer cannot pay the award, it is quite possible (if not likely) that a newspaper, radio station or television station will have aired the defamatory material, and the newspaper, radio or television can be sued in its own right. By contrast, in an era of relatively open communication over the Internet, there is an increasingly likelihood that there will be no large media outlet involved in the communication. In addition, there is a much greater likelihood that the defamer will not be a person of means. Whether studies of the broadcast and print media will apply to Internet communications is far from clear. Indeed, if the Internet has a leveling effect on defamation, it might have the opposite effect: it may make individuals feel more free to communicate information. In theory, an Internet defamation plaintiff located in a pro-plaintiff jurisdiction (i.e., Britain) can bring an action against a defendant who transmits from a pro-defendant jurisdiction (i.e., the U.S.) in the pro-plaintiff jurisdiction. In reality, practical considerations may make such trans-jurisdictional litigation unrealistic. The most noteworthy aspect of the Internet is its democratic nature. Prices for personal computers have been falling, and anyone with a personal computer, a modem, and an Internet hookup can gain access to the Internet. Those who cannot afford even this basic equipment can gain access through an employer, a local library, or a "cybercafé." Once someone gains access to the Internet, it is relatively easy and inexpensive to communicate information across jurisdictional boundaries. From a defamation perspective, this makes trans-jurisdictional defamation suits more problematic. While it may be worthwhile to bring a trans-jurisdictional suit against a large media conglomerate which has assets all over the world, it may not be financially worthwhile to pursue defendants with few assets, especially defendants who reside in other countries.

In addition, the chances of obtaining an injunction prohibiting defamatory speech are much lower. Much will depend on where the defamer is located. For example, in the United States, there is a very strong prohibition against the issuance of prior restraints.⁷⁵ As a result, if an Australian or New Zealand plaintiff is upset regarding material being published in the United States over the Internet, there would be very little chance of obtaining an injunction prohibiting the publication.⁷⁶ A similar presumption against injunctions prevails in both Australia and England as well.

From a defamation perspective, this makes trans-jurisdictional defamation suits more problematic. While it may be worthwhile to sue a large corporation with assets all over the world, it may not be financially worthwhile to pursue defendants with fewer assets, especially defendants who reside in other countries. And since assets are mobile or can be held outside the media’s corporate form, it is likely that these will be persons of straw. The cost of the litigation, by itself, might be prohibitive. Moreover, unless the defendant has substantial assets, satisfaction of any judgment may be difficult or impossible.

The other major difficulty is that even a successful suit might not terminate the defamation. Suppose, for example, that a small group of dissidents live in the United States, and are determined to publish allegations against the government of their home country.⁸ Perhaps powerful plaintiffs could co-op the government to regulate. Even if the defamed governmental officials had the financial wherewithal to sue one dissident, and even if they gained a recovery, there is nothing to prevent a second dissident (or, for that matter, a third, fourth, fifth or sixth) from publishing similar allegations on his computer. Is it realistic to think that the defamed officials will bring multiple U.S. suits against the dissidents? Moreover, even if the defamed officials were willing to sue, what is to prevent the dissidents from publishing their allegations through an "anonymous remailer" (which strips all identifying material off a communication)?⁷⁷ Ultimately, the practicalities of such trans-jurisdictional litigation are likely to overwhelm potential plaintiffs.

Of course, some defamation defendants will be wealthy and it may be worthwhile to sue them. For example, it might be possible (and profitable) to sue ISPs like America Online or CompuServe.⁷⁸ In theory, traditional defamation theory allows recovery against anyone who publishes defamatory material.⁷⁹ The difficulty is that the laws of some countries provide that book vendors and news sellers cannot be held liable if they do not have actual knowledge of the defamatory statements being made on their system.⁸⁰ Since many Internet service providers (ISPs) are like book vendors and news sellers in that they exercise little content control, recovery against them may be difficult.⁸¹ Even if an ISP does exercise some content control over the communication, recovery may be difficult. In the U.S., the Communications Decency Act purports to exempt such providers from defamation liability: "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."⁸² So, the possibility of recovery against an Internet provider seems remote, at least in the U.S.⁸³

In the republishing context the usual tactic is to put the secondary publisher on notice of the defamatory content of the publication. Thus to warn those in the pipeline of distribution will effectively half the wider distribution of the defamatory article. In the Internet, one could put the ISP on notice. However, that would be effective only if the same defamatory material was to be broadcast, as if the target had notice that the material was about to be broadcast. Both are unlikely. For the former, the material is sent electronically in an instant; for the latter it is most unlikely that the publisher would tip his hand, and for the allegedly traduced official information about all the ISPs would have to be available.

Of course, a given country might choose to apply different defamation rules to ISPs. Indeed, a country that wishes to repress defamatory speech may view impose liability as a means of gaining control. Of course, even if the law of a particular jurisdiction allows recovery against an ISP, it may be difficult or impossible to enforce sue the ISP if it does business in a pro-defendant jurisdiction. As a matter of jurisdiction, a defamation plaintiff may be able to sue the ISP in a foreign jurisdiction and to obtain recovery there. However, enforcement of that judgment may be difficult unless the defendant has sufficient assets in the foreign jurisdiction. In the U.S., for example, the First Amendment to the U.S. Constitution makes it difficult to enforce defamation judgments obtained in other countries. As noted, U.S. courts have refused to enforce English defamation judgments on the basis that the suit involved protected speech, and that enforcement of the English judgment would violate the policies that undergird the First Amendment to the U.S. Constitution.⁹ So, although a defamation plaintiff may be able to sue a defendant in another jurisdiction, recovery of the judgment may be difficult unless the defendant's assets can be found in a country which provides defamation defendants with fewer protections.
C. Defamation and CRITICISM OF GOVERNMENT

Globalization of the internet will reduce government’s ability to repress criticism. Recall that technology caused government disquiet when the printing press allowed an unprecedented volume of critical material to circulate. Government’s response was the prosecution of seditious libel created by England’s Star Chamber in1606 in the case of de Libellis Famosis,⁸⁴ That crime made it a punishable offense to criticize the government or governmental officials (and, initially, the clergy as well).⁸⁵ The crime was premised on the notion that criticism of the government can breed disrespect for governmental as well as for clerical authority. Moreover, since truthful criticism might breed disrespect as effectively as untruthful criticism, truth was not a defense in a seditious libel prosecution. Indeed, because the common law assumed that truthful criticisms were potentially more damaging than false criticisms, truthful criticisms were punished more severely.¹⁰

Even though the crime of seditious libel has been abolished in many countries, including the United States,⁸⁶ it is not uncommon in some countries for politicians to pursue their critics through the tort of defamation. In Australia, for example, there are numerous examples of politicians bringing or threatening defamation actions. In Commonwealth jurisdictions, in which a prevailing plaintiff can recover costs (defined broadly to include attorneys fees), the possibility of a defamation action can serve as a significant restraint on those who would criticize the government. With the shift in legal doctrine such actions should be discouraged. But even more, the internet will open up criticism.

Today, dissidents who want to transmit allegedly defamatory information to their home country can easily do so through the Internet, and can do so at distance.¹¹ Even if the defamed governmental officials can sue one dissident, and even if they gain a recovery, the defendant may be impecunious (or relatively so) so that the plaintiff gains little. Indeed, a relatively sophisticated plaintiff may transmit information through anonymous remailers which strip all identifying marks off the original communication so that it is difficult or impossible to identify the source of the defamation. The bottom line is that, for a government that actively tries to control the flow of information about itself, the Internet is a nightmare because a successful judgment does not deter future defamation.

In theory, a government might be able to use other remedies against the dissidents, including injunctive relief, and the possibility of a criminal defamation action. The difficulty is that the availability of injunctive relief, as well as a criminal defamation action is heavily dependent on where the dissidents reside. If they reside outside the country where the defamed government exists, it may be difficult to use these remedies. In the U.S., injunctive relief is effectively precluded by decisions such as Near v. Minnesota.⁸⁷ That case involved a suit by the county attorney of Hennepin county who sued to enjoin publication of what was described as a "malicious, scandalous and defamatory newspaper." In Near, the Supreme Court rejected the injunction articulating a broad rule against prior restraints. In addition, it will be virtually impossible to bring a criminal defamation action in the U.S. While criminal defamation actions were permissible at one point, the U.S. Supreme Court's holding in N.Y. Times Co. v. Sullivan effectively precludes so-called seditious libel prosecutions now.

The practical problems multiply when a group of dissidents decide to act in concert. Even if a defamation plaintiff can gain a judgment against one dissident, there is nothing to prevent other dissidents from publishing similar allegations on their computers (or through libraries or cybercafés). A defamation plaintiff may be forced to bring multiple suits against the dissidents, and again those suits may be effectively unenforceable. Moreover, even if the defamed officials could sue the dissidents collectively, there is nothing to prevent the dissidents from publishing their allegations through an "anonymous remailer." Ultimately, the practicalities of trans-jurisdictional litigation are likely to overwhelm potential plaintiffs.

As we have seen, there is a movement towards “globalization” in regard to the tort of defamation. There has been some convergence between countries in terms of defamation standards, and a worldwide trend towards providing greater protection for freedom of expression. Although this trend began in the United States in the 1960s on a constitutional basis,⁹⁶ the movement has continued through the expansion of common law qualified privilege in various Commonwealth jurisdictions.⁹⁷

Exceeding the moment of the changes in defamation standards is the growth of speech technology, particularly the Internet. Defamation litigation will be reshaped. Under decisions like Dow Jones & Co., Inc. v. Gutnick,⁹⁸ defamation plaintiffs have the potential to pull far-away defendants into court. However, because of recent decisions regarding the enforcement of foreign defamation judgments, a non-U.S. defamation plaintiff will face formidable barriers in enforcing a foreign defamation judgment in a U.S. court.

Another major “trend” in defamation litigation is the democratization of speech technology. For the first time in the history of mankind, it is relatively simple and easy for people to communicate with each other. As a result, even people of relatively modest means, or impecunious individuals, have the ability to communicate easily and effectively with people all over the world. Everyone may become a journalist.¹³ Democratization through the internet threatens to reshape many aspects of modern defamation law, especially in regard to trans-jurisdictional litigation. Internet communications are quick, easy and inexpensive, and virtually anyone can gain access to the "net." As a result, defamation litigation will be a hollow threat in deterring speech.