September/October 2000 | Contents

LAW, THE MEDIA &...

... THE NET
Global Precedents

BY FRANK HOUSTON

You may not know -- or think you need to know -- that in the Netherlands it's against the law to offend the Dutch royal family, or that in South Korea a writer can be put behind bars for praising North Korea. American journalists have traditionally had little reason to worry over speech that foreign governments have deemed unacceptable. But in the Internet era, that may change. The judicial map of cyberspace is not yet drawn.

International publishing used to mean selling books, magazines, and broadsheets at faraway shops and newsstands, but today it may be as simple as posting an article or even a message on a Web site. "No one has really sorted out whether, because we're available on the World Wide Web, that constitutes international publication," says Jack Shafer, deputy editor of the online magazine Slate. "There will be precedents set country by country."

Even within the U.S., "it is unclear the extent to which someone who speaks on the Internet is going to be subject to jurisdictions other than where they write," says Charles Sims, a First Amendment attorney at the Proskauer, Rose firm. In the mold of a national magazine, any publication on the Internet essentially transcends state borders, and libel laws vary from state to state. But Sims and many others believe that "with respect to defamation, the law is at least as protective of journalists online as print or broadcast law is."

Some experts believe the law may be even more protective online. In the 1997 landmark case Reno v. ACLU, the Supreme Court held parts of the Communications Decency Act to be unconstitutional but left intact Section 230, which "provides very broad immunity" to publishers of online content, says the media lawyer Patrick J. Carome, a partner at Wilmer, Cutler & Pickering who has represented media defendants in online and traditional media, including AOL.

Section 230 shields any "provider or user of an interactive computer service" or "any information . . . system" from liability in defamation suits involving content created by others. It was cited by a U.S. District Court judge in Washington, D.C. in dismissing AOL as a defendant in the White House aide Sidney Blumenthal's continuing libel suit against Matt Drudge, although AOL had promoted Drudge's column and had a contractual right to edit him (which, in this case, it had declined to exercise). "The scope is very broad in terms of who is entitled to claim it," says Carome. "Most players on the Internet are likely to qualify for protection under 230 against liability for third-party content."

Further legal battles could test its breadth. Carome sees the immunity as equally applicable to online services like AOL and publications like Slate and Salon, and thinks the line might be divided between writers used on a free-lance basis (essentially Drudge's relationship with AOL) and staff members, for whose work publications would be equally responsible.

But "because it is so easy for a person harmed online to respond in kind, it has been argued that there is less of a need for the courts to come in with damage remedies," says Carome.

Though the question has yet to be addressed in court, what First Amendment attorneys involved in new media fear most is that the global nature of the Internet might allow foreign courts to claim jurisdiction over allegedly libelous speech originating elsewhere, including the United States.

"No other country in the world has our First Amendment, and none offers the kind of protection for speech that we have here," says Jonathan Hart, a libel lawyer who specializes in new media. "It may be in the economic interests of a publisher to take into account the least protective libel laws in the world, rather than relying on the protection of the Constitution. And that's scary."

Journalism is just one piece of a bigger legal jurisdiction puzzle created by the Internet. In July, the American Bar Association's Section of Business Law released the findings of its Global Cyberspace Jurisdiction Project, a study that examines "how regulatory agencies in the United States and abroad must change to adapt to a new world of electronic commerce that is not dependent on physical location," according to an ABA press release.

Abroad, the famously pro-plaintiff libel laws of Britain remain the most vexing for American media companies. In May, the House of Lords allowed a Russian tycoon to sue Forbes magazine in Britain, and in April a London jury slapped The New York Times and the International Herald Tribune with a libel verdict for an article alleging that a celebrity chef in England had used drugs in the past. Web sites may be considered just as international in scope as these print publications.

Another recent case illustrates that in the democratic realm of Internet publishing, free-speech protections may apply equally to journalists and nonjournalists alike, but only up to a point.

In 1997, a Cornell University graduate student, Michael Dolenga, was named in a libel suit filed in London by an English scientist, Laurence Godfrey, who alleged that Dolenga had posted defamatory messages about Godfrey on Usenet discussion groups. When Dolenga didn't show up to defend himself, Godfrey won a default judgment.

But there's an advantage in having no foreign assets: as was the case with Dolenga, a foreign judgment can be difficult to enforce. Plaintiffs can resort only to U.S. courts to enforce foreign libel judgments, and many experts are doubtful of their prospects. In one such case, Maryland's highest court stopped a British libel judgment from being enforced in the U.S. against a former British citizen who'd published allegedly defamatory statements in a letter to a British newspaper.

Writing in the Libel Defense Resource Center's 1999 Cyberspace Project, Kurt Wimmer, a partner specializing in new media at Covington & Burling, and a Harvard law student, Joshua Berman, note, "Even assuming valid jurisdiction, a foreign plaintiff may not, consistent with both international law, U.S. foreign relations law, and U.S. public policy, enforce an Internet libel judgment in U.S. court, so long as that judgment is inconsistent with the requirements of the First Amendment."

It may be little comfort to media companies with assets abroad, but for U.S.-based Web publications, that's good news.

Frank Houston is a Brooklyn-based writer.