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Cyber Slander and Online Libel

In the digital age, anyone with a connection to the Internet can make themselves a writer, a poet, a commenter...or a critic. The language can be harsh, and the treatment rough. And writers can do all of this cloaked in anonymity. Is that a good thing, or a bad thing...or more likely, some combination of both? Rebecca Ward has this look.

On the World Wide Web anyone can be a writer, an observer, or a critic - and all while remaining anonymous. That anonymity, says Kerric Harvey of George Washington University, provides a cover for anyone to say just about anything. And that, says Harvey, is not necessarily a good thing.

"The first thing I'd like to address is the idea that we need to protect all types of speech on the Internet because that is the American Way," she says. "That the protection of speech on the Internet is simply a parallel to free speech in other arenas. I would actually challenge that concept."

For example, an anonymous blogger recently made remarks about New York model Liskula Cohen, calling her - among other things - a "skank." Cohen brought suit, alleging defamation that had harmed her career, and a New York judge soon ordered Google - which hosted the blog - to release the blogger's identity, which they did. Cohen later dropped her $3-million dollar suit, but the blogger, Rosemary Port, now says she plans to sue Google.

Yet even with examples like this, Attorney Enrique Armijo, of the firm Covington and Burling, LLC, says defamation is difficult to prove in an American court.

"It depends on who's being spoken about," says Armijo. "In the case of private person, like me, if somebody were to write something defamatory about me, all I would have to prove is that the reporter or the newspaper was negligent. If it's a public figure then the standard is actual malice, which means reckless disregard for the truth or knowledge of falsity."

Given the suggestive nature of many of the millions of blogs on the web, it may be surprising there aren't more Internet libel lawsuits other than the handful reported in the news. But the United States' Constitution guarantees the right to free speech in its First Amendment. And the Internet should be no exception, according to Jay Stanley of the American Civil Liberties Union.

"We think that's the way it should be because you really have to prove somebody's state of mind - what they knew, and that they had quote, unquote actual malice," says Stanely. "And that's a good thing because when in doubt, you need to put as much free reign on free speech as possible because it's much better for society if you do that."

But that's not necessarily the case in the rest of the world, which, says attorney Enrique Armijo, has led to something called 'libel tourism'. While defamation law is usually a matter for state courts here in the United States, judges in Canada and Australia have ruled against U.S. newspapers in separate defamation cases because the content was available online in those countries.

"We tend to resolve reputational harm cases through the common law," notes Armijo, "which is basically judges declining to enforce judgments from foreign countries. You know, New York just passed a libel tourism statute. There's a prospect of some federal legislation in that area."

So, if defamation - at least in the United States - is difficult to prove, what can an individual do if they feel they're the victim of online libel? And how best to combat it?

According to Tripp Donnelly, "...rumor and negative information spreads nearly ten times as fast as positive information online."

Donnelly works with Rep Equity, an online reputation management company that counts among its clients sports figures, celebrities and traditional companies; all looking to counter negative information on the Internet.

"This is a new paradigm of information," he says. "People going online, Googling, going to Yahoo, going to Bing and the first thing that they see, they trust. What we found was nearly 80 percent of people don't search beyond page one. All the effort that they put on to their brand image and their reputational aspects offline, in television, print advertising, and community service they do, they need to map that effort and that brand image online as well."

But even if negative information online can be pushed to the lower rungs of a Google search, Kerric Harvey believes free speech on the Internet has gone too far. She suggests that society needs to create an atmosphere where it's culturally unthinkable to bad-mouth or discredit someone on the Internet. In the meantime, Harvey would also like to see a legal remedy.

"Before everyone had a car, we didn't have the crime vehicular manslaughter. We need Internet versions of vehicular manslaughter. We need something that acknowledges the severity of damage we can do to one another. We need to understand that we will never fully know how much we can hurt each other."

The ACLU's Jay Stanley strongly disagrees. "If some speech is bad or wrong, mean or malicious, the best antidote to that is more speech. Not to allow some government official to make the decision about what speech is okay and what speech is not okay."

Although there are some limits to free speech in the United States - you can't yell "fire" in a crowded theater unless there actually is a fire - the U.S. Constitution's First Amendment has withstood the test of time. It's unlikely the Internet, created some 200 years later, will change that much.