online cases 1 (1991-2000)

This page highlights some online defamation cases in Australia, the US, New Zealand, UK and other jurisdictions.

It covers -

• introduction
• Cubby (1991)
• Rindos (1994)
• Stratton Oakmont (1995)
• Poetry Society (1996)
• Zeran and the CDA (1996)
• Godfrey, Hallam-Baker, Melbourne PCUG, Demon Internet (1995, 1998 and 1999)
• Blumenthal, AOL and Drudge (1998)

     introduction

The cases on this page do not present a comprehensive picture of online defamation. It instead highlights some cases that have influenced legal thinking and attracted considerable attention in Australia, New Zealand, the US, UK and other jurisdictions.

The cases illustrate -

• how courts have treated the liability of internet service providers and other intermediaries, sometimes claimed as equivalent to print 'distributors'
• the preparedness of courts to order (and gain) disclosure by ISPs of those responsible for defamatory statements
• the accumulation of suits and court decisions that demonstrate cyberspace is not a law-free zone where publication can occur without consideration of defamation action
• difficulties facing plaintiffs, defendants and others in gaining satisfaction or merely understanding defamation regimes where law is further complicated by 'borderless technologies'
• the same play of egos, malice, opportunism and expertise evident in cases discussed in the preceding page of this profile
• the politicisation of responses, blurred by intersection with matters such as 'whitewatergate' and uncertainty about Saudi funding of terrorism
• varying stances between and within jurisdictions, consistent with variations in addressing offline defamation.

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

     Cubby (1991)

Cubby, Inc vs CompuServe Inc, claimed as the first - or merely first major published - case on internet defamation in the US, concerned a defamatory comment about Cubby, Inc.

Cubby claimed that it had been defamed in the Rumorville electronic forum hosted by US service provider CompuServe's hundreds of independent, self operated forums. The US court found that because CompuServe did not review the content of statements prior to posting it had a position analogous to that of a distributor (eg a library) and thus did not have the same liability as a publisher. That conclusion was based on the US Supreme Court decision in Smith v California that for a distributor to be held liable it must have demonstrable knowledge - prior to dissemination - of the erroneous and defamatory content of a publication.

The decision was consistent with US cases regarding the liability of telegraph and telephone network operators, such as Western Union Telegraph v Lesesne (1950), with the carrier being shielded unless it had reasonable prior knowledge of the defamatory statement.

     Rindos (1994)

The landmark Rindos v Hardwick litigation in Western Australia concerned a defamatory statement about academic Dr David Rindos (1947-1996) on the DIALx science anthropology computer bulletin board by Gilbert Hardwick.

Rindos had been denied tenure at the University of Western Australia in controversial circumstances, discussed in the WA Parliament report on The events surrounding the denial of tenure to the late Dr David Rindos by the University of Western Australia. Hardwick's statement imputed that Rindos had engaged in sexual activity with a minor and that his academic reputation was based "on his ability to berate and bully all and sundry" rather than appropriate research.

The WA Supreme Court noted that the bulletin board was globally accessible by over 23,000 people. Hardwick failed to justify his comments. Justice Ipp found that the statements were clearly defamatory and had been widely published, with Rindos suffering serious harm to his reputation. Rindos' lawyer commented that

Computer users who use these world-wide bulletin-boards should be aware that they could be exposing themselves to defamation actions ... It's an informal system where people say quite personal things, but making allegations of paedophilia and bullying is going too far.

Rindos was awarded $40,000 damages from Hardwick - having not pursued the bulletin board operator - but apparently did not collect before his death.

     Stratton Oakmont (1995)

The responsibility of bulletin board operators was considered in Stratton Oakmont vs Prodigy, action in the US against ISP Prodigy.

A user posted claims on Prodigy's Money Talk financial forum that Daniel Porush (president of securities firm Stratton Oakmont) was "soon to proven criminal" and that Stratton Oakmont was a "cult of brokers who either lie for a living or get fired." Porush took action against Prodigy, claiming that it was liable for claims on a widely read forum.

That claim proved successful - in contrast to action by Cubby - because Prodigy had alerted all users of its fora that in ensuring a "family" atmosphere it retained the right to edit, remove and filter forum postings. That was reinforced by Prodigy marketing such as

We make no apology for pursuing a value system that reflects the culture of the millions of American families we aspire to serve. Certainly no responsible newspaper does less when it carries the type of advertising it published, the letters it prints, the degree of nudity and unsupported gossip its editors tolerate

Stratton Oakmont argued that such editorial control involved liability, with Prodigy being properly treated as a publisher rather than a carrier. The court agreed, awarding damages to the plaintiff.

One consequences of the case was that many ISPs were advised to limit liability by not attempting to monitor postings to their online fora.

     Poetry Society (1996)

The preceding cases involved varieties of electronic mail. What is often claimed as the first case arising from a statement on a static web page was as late as early 1996, with reports that the UK Poetry Society was to be sued for defamation. The Society is a nonprofit organisation - at that time with around 3,000 members - associated with some of Britain's leading poets.

The action involved a statement on the Society's site regarding vanity publishing, with the comment that some publishers "rarely have any interest in literature" and are

in the lucrative business of vanity publishing involving preying on poets who cannot otherwise get their poems published

Action by a publisher named on that page did not proceed to court and the UK thus did not see a definitive court ruling that the web was covered by UK defamation law.

     Zeran (1996)

In Zeran v America On-Line a US federal court held that the controversial 1996 Communications Decency Act (CDA) protected internet service provider AOL regarding defamatory messages by a third party. That protection preempted action under US state legislation.

Plaintiff Kenneth Zeran was the victim of a malicious hoax, with an unknown AOL user featuring Zeran's personal information in advertisements hosted by AOL for souvenirs glorifying the Oklahoma City Bombing. Zeran was subsequently harassed by phone and snailmail. He responded by litigation against AOL, arguing that the ISP had been negligent in initially allowing the publication of the ads and then failing to act on his complaints after he learnt of the ID theft.

AOL claimed immunity under the CDA, with Section 230 shielding any "provider or user of an interactive computer service".

That claim was endorsed by the court, which held that ISPs have a special status and are not liable for defamatory statements by third parties. In practice that decision reversed the findings in Stratton Oakmont and survived the demise of the CDA. In 1997 the federal Supreme Court in Reno v ACLU held parts of the CDA to be unconstitutional but left Section 230 intact.

     Godfrey (1995, 1998 and 1999)

A different stance was taken in the UK, regarding action by UK physicist Dr Laurence Godfrey.

In Godfrey v Hallam-Baker he sued CERN scientist Philip Hallam-Baker for defamatory statements allegedly transmitted via the net from Germany and Switzerland, and read by Godfrey's colleagues in the UK. The case was settled out of court in 1995, leaving unresolved questions of jurisdiction and applicability of law.

In 1998 Godfrey reached a non-monetary settlement with US university Cornell University as ISP regarding allegedly defamatory postings by former graduate student Michael Dolenga on the soc.culture.canada usenet newsgroup in 1994 and 1995. Godfrey had taken action in London's High Court of Justice against Cornell and the University of Minnesota. Dolenga is reported to have commented

I'm not recognizing the British court's jurisdiction and the hell with it.

His non-recognition of UK jurisdiction was apparently shared by US courts critical of the absence of First Amendment protection in the UK, vitiating default judgements against Dolenga and others in a range of UK defamation suits.

In unrelated litigation Godfrey settled with Melbourne PC Users Group for a reported US$6,190 in 1998 and settled suits with New Zealand Telecom and the Toronto Star for undisclosed sums. He had meanwhile sued major UK ISP Demon regarding statements posted to the soc.culture.thai newsgroup by an unknown person using his name. Demon had received that item from another ISP and as part of a standard usenet service had stored it on their news server.

The UK High Court's decision in Godfrey v Demon Internet was that in principle an ISP could avail itself of a statutory defence under section 1 of the Defamation Act 1996. In practice Demon had crucially failed to remove the offending item from its server within an appropriate time after being alerted by Godfrey's lawyers, who had served notice by fax to Demon's managing director.

The decision highlighted the scope of the statutory defence and the shape of publication, with the judge noting that

In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer.

The 2000 Demon judgement saw the ISP agree to pay £15,000 damages plus legal costs, estimated as over £250,000.

     Blumenthal

In Blumenthal v Drudge and America On-Line the US District Court for the District of Columbia recognised the ISP immunity conferred by section 230 of the CDA.

Presidential Assistant Sidney Blumenthal and his wife Jacqueline had sued online gossip monger Matt Drudge and AOL for US$30 million over claims that Mr Blumenthal had a history of spousal abuse. AOL - which promoted the email Drudge Report as a reason for subscribing to its service and which paid the author - was said to have published the claims with reckless disregard for truth.

Blumenthal vehemently denied the claims, somewhat tersely retracted two days later but presumably seen by many of the Report's 85,000 subscribers

The court found that AOL had reserved the right to exercise control over the Report's editorial content: its contract with Drudge gave it the right to remove (or direct Drudge to remove) any content that violated its standard Terms of Service or adversely affected its operations. In promoting the Report as a gossip column AOL acknowledged inherent risks.

However, defamation action against AOL was barred by the CDA because Congress

whether wisely or not, made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others. ... Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others. While Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium.

The court noted that were it not for the CDA it would side with the Blumenthals.

Drudge unsuccessfully sought dismissal on the basis that the court did not have personal jurisdiction. The court disagreed, commenting that Drudge's maintenance of his site (which sought financial contributions and allowed users of AOL and other ISPs to subscribe to the Report by email), along with visits to Washington DC, meant that he was subject to its jurisdiction.

The suit against Drudge was settled out of court in 2001, with Blumenthal commenting that he agreed to settle because a well-heeled right wing group was paying Drudge's legal fees

I believe their strategy [was] twofold ... First, to file as many delay motions as possible to bleed me dry. And to create as much publicity for Drudge as possible. For him, bad publicity is simply publicity.

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