"Should Online Defamation be Criminalized?"

The Law Blog Metrics blog reported a law journal article titled, "Should Online Defamation be Criminalized?". Here is the abstract of the article:

Abstract:
In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder; the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.

Below is an expanded version of a comment I submitted to the Law Blog Metrics blog in response to the above abstract -- this comment is still awaiting approval there. This comment's embedded URL links are shown as "CLICK HERE" because embedded links on the Law Blog Metrics blog are not conspicuously highlighted by underlining or other means.

In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder . . . .

For one thing, I think that "rape" is not a good comparison because rape often does not result in physical or mental harm (particularly not statutory rapes where the "victims" are male and the rapists are attractive females). And IMO the comparison to murder is unreasonable. There are even many felonies that do not begin to compare with murder. I don't think that deciding whether or not something should be criminalized should be based on a comparison to murder.

. . the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.

I agree that the Internet has increased the opportunities to defame, but I don't see what that has to do with the question of whether or not libel should be criminalized. Few people have the opportunity to embezzle one million dollars, but that does not mean that such embezzlement should not be criminalized.

For the following reasons, I feel that libel cases should remain in the civil courts and stay out of the criminal courts:

(1) Decisions on whether to prosecute crimes are discretionary, and criminal prosecution of libel is much more likely when the libel victim is rich, famous, and/or well-connected.

(2) Libel cases often involve claims for substantial monetary damages, and the government should not help people collect such damages.

I think that "cyberbullying" in general and arbitrary censorship of comments submitted to blogs or other websites are far more serious problems than libel (though libel on the Internet may be considered to be a form of cyberbullying). By "cyberbullying," I don't mean just letting off some steam, but I mean such things as credible threats of violence and disparagement of people's race, color, sex, religion, sexual orientation, and national origin. By "arbitrary censorship of comments," I mean the censorship of comments solely because the blogger or other website administrator disagrees with them.

Arbitrary censorship of blog comments is generally not considered to be a problem because most people still think of blogs as being private or personal websites where the bloggers should have complete freedom to censor comments as they wish. However, many popular blogs -- particularly blogs that got off to an early start -- have now become prominent de facto public forums. Some of the bloggers on these blogs are now trying to play "King of the Hill" by preventing some others from posting comments on these popular forums. Because the Internet has the potential to greatly enhance our ability to communicate, efforts to prevent Internet communication are actually a form of anti-intellectual and unscholarly Luddism. Also, many blogs are now being authoritatively cited by court opinions, scholarly journal articles, etc., and such citation should end any pretense that the cited blogs are strictly private or personal. Should authoritative citation of arbitrarily censoring blogs be prohibited or discouraged? I think so. For practical purposes, the status of many of these popular blogs as de facto public forums is no different from that of newspapers, major magazines, radio and TV stations, etc..

IMO, a fundamental part of libel law is the question of the right of the libeled person to post a rebuttal on the site where the libel occurred. The courts have answered this question in different ways for printed publications and radio & TV broadcasters -- CLICK HERE

In the case of radio and TV broadcasters, the obligation to present differing views has been called the "fairness doctrine" (the "equal-time" or "equal-space" rules are similar to the fairness doctrine but are different). There is a conflict between the freedom-of-the-press right to control media content and the freedom-of-expression right of outside commenters. In applying something like the "fairness doctrine" to blogs, I think that the courts would tend to side with the commenters rather than the bloggers because commenting space on blogs is virtually unlimited and is free of charge to the bloggers.

A lot of bloggers want to have their cake and eat it too -- they want their blogs to have the benefit of being considered private without any of the responsibilities. For example, while wanting complete freedom to arbitrarily censor comments submitted to their blogs, they do not want to be held responsible for others' comments that they allow to remain on their blogs.

The title of a federal law, 47 USC §230, says that this law provides "protection for private blocking and screening of offensive material" on the Internet. Ironically, there does not appear to be any federal law that provides ""protection for private blocking and screening of inoffensive material" on the Internet! LOL. 47 USC §230 was enacted as the "Communications Decency Act." For the text of 47 USC §230, CLICK HERE. The Electronic Frontier Foundation's Bloggers' FAQ webpage on this law says,

Section 230 says that "No 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." . . .

Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it.

It is crazy that we have the above law that gives bloggers and other website administrators immunity from prosecution for libelous material from a 3rd party while there is no "fairness doctrine" or "equal-time" law requiring them to post rebuttals from the libel victims (regardless of the source of the libel)! Thus, Fatheaded Ed Brayton (Dispatches from the Culture Wars) and Sleazy PZ Myers (Pharyngula) are free to take potshots at me on their blogs without being obligated to post my rebuttals on their blogs. I think that many libel victims would rather post rebuttals on the sites that libeled them instead of going to the expense and trouble of a libel suit -- indeed, the purpose of a libel suit might be to pressure the libeler into allowing a rebuttal on the libeler's site.

I don't think that laws alone are going to solve the problems of Internet cyberlibel, cyberbullying, and arbitrary censorship of comments. What we need is an Internet culture that frowns upon these things. That is not the Internet culture that we have now.

Cyberbullying is discussed on my blog at -- CLICK HERE and CLICK HERE

Arbitrary censorship of comments is discussed in the following groups of articles on my blog:

CLICK HERE and CLICK HERE


Larry Fafarman
Founder, Association of Non-Censoring Bloggers
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