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Downloading a free press: the new rules of libel

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

01.12.03

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When you gather news for a living, libel suits are an occupational hazard. It’s a story almost as old as publishing itself.

But what happens in an online age? Are the rules different when news and information can be disseminated instantly to computers worldwide?

That’s a challenge courts are facing with increasing frequency. Does publishing on the Web affect how you can be sued, and possibly more important, where?

The fundamentals are clear: Anyone who believes that reporting has damaged his or her reputation can file suit, which often leads to time-consuming and expensive litigation.

Of course, the First Amendment gives the news media some protection, provided that the news organization has not been reckless or acted in bad faith.

The news organization also has the opportunity to defend the case in its own community. That’s both good law and common sense: Lawsuits should be resolved where the alleged harm occurred.

But what happens if the offending news report appears on a Web site? A story posted online by a Chicago newspaper, for example, can be seen anywhere in the world. Which court should hear such a dispute? Judges are grappling with these issues:

  • Two weeks ago, the 5th U.S. Circuit Court of Appeals dismissed a lawsuit filed against a Massachusetts man and the Columbia School of Journalism, saying that the case could not be brought in Texas. The lawsuit came after Hart G.W. Lidov, an assistant professor at Harvard, posted an article on the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. His article, available on a Web site maintained by the Columbia School of Journalism, alleged that senior members of the Reagan administration ignored warnings that could have prevented the tragedy.
  • In response, a libel lawsuit was filed by Oliver “Buck” Revell, a former associate deputy director of the FBI, now a resident of Texas.

    The court considered a number of factors, including the extent to which Texans could access the Web site. In dismissing the case, the court concluded that the article written by a Massachusetts man posted on a New York Web site contained no references to Texas and was not directed at Texas readers.

  • The 4th Circuit ruled last month that two Connecticut newspapers could not be sued in Virginia for a Web story about the housing of Connecticut prisoners in Virginia. The court concluded that, although the allegedly defamatory story could be accessed in Virginia, the newspapers did not “aim their Web sites or the posted articles at a Virginia audience.”

Both decisions were favorable for the news media. After all, facing litigation is difficult and expensive. It would be unfair to have to mount that defense in a distant state where the only real connection is a Web link.

But while these decisions suggest that a New York publisher won’t be unfairly hauled into court in Texas, the news is not so reassuring outside the United States.

In a surprising decision last month, the High Court of Australia permitted a libel suit against Dow Jones & Co. to proceed there. The suit was based on an article published in Barron’s and posted on the Web site of The Wall Street Journal.

In sharp contrast to the U.S. decisions, the High Court found that the ability to merely access the Web site was sufficient to create jurisdiction. The result: Dow Jones will have to defend its U.S.-based newsgathering efforts in a country in which there is no First Amendment and considerably less protection against libel suits.

The question of which court should hear an online libel case is not arcane law-school fodder. The answer will have real consequences for the quality, quantity and scope of news reporting worldwide.

The real risk of this decision — and the possibility of other countries’ courts reaching similar conclusions — is that the robust reporting we see in the United States may be chilled or even made inaccessible in many areas of the world.

Libel suits certainly can serve a constructive role in society, acting as a check on deceitful and defamatory reporting. But a court’s inquiry into the truth or falsity of a report should occur where the information was compiled and published.

Thanks to free-press guarantees, the United States has the most vibrant, diverse and aggressive news organizations in the world. Time — and the world’s courts — will determine how much of that freedom can be exported.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Warden can't sue for libel in home state, appeals panel rules
4th Circuit dismisses lawsuit against two Connecticut newspapers, saying articles posted on the Internet weren't aimed at Virginia audience.  12.16.02

Australia's high court gives man go-ahead to sue U.S. publication for libel
Analysts believe ruling against Dow Jones & Co. in Internet defamation case could set precedent for courts, affect publishers and Web sites around the world.  12.11.02

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