Can Websites' Reputational Rules and Rights of Reply Provide a Reputation-Protection System Superior To Libel Law?:
Part Two in a Two-Part Series of Columns

By JULIE HILDEN

Friday, Feb. 22, 2008

In my last column, I contrasted the systems by which reputation is protected, both online and off. I concluded that libel law, as applied offline, in the real world, is extremely pro-plaintiff.

However, I concluded that libel law, as applied online, is much more pro-defendant, since it can be difficult to track down anonymous writers and sue them.

In this column, I'll first discuss a recent California decision upholding a right to anonymity online. The decision, as I will explain, supports my point that would-be plaintiffs who feel they have been defamed online are unlikely to find an easy, quick remedy through libel law.

Moreover, I'll raise the exciting possibility that, as more and more speech moves online, we may someday be able to junk pro-plaintiff libel law altogether, in favor of private reputational policing systems that provide an even playing field, as libel law does not, and a full right of reply for the person whose reputation has been sullied, as newspapers do not.

Krinsky v. Doe: Upholding a Right to Speak Anonymously Online

On February 6, in Krinsky v. Doe, the plaintiff sued Yahoo, an Internet Service Provider (ISP), to determine the author of an allegedly libelous posting. A California Court of Appeal held that "[j]udicial recognition of the constitutional right to publish anonymously is a longstanding tradition." However, it may have been a bit too quick in reaching its holding, especially in the Internet context, for several reasons.

First, as I've written in an earlier column, the U.S. Supreme Court has not yet definitively ruled on whether there is a constitutional right to speak anonymously, except in the specific context of political-campaign-related publications. That specific context, moreover, may be unique from a First Amendment perspective, for political speech is seen to be at the very core of the First Amendment.

Second, the key U.S. Supreme Court anonymous speech precedent, protecting anonymous political campaign pamphlets, McIntyre v. Ohio Elections Commission, was decided years before 9/11, in 1995. The next time the Court confronts the issue, it is very possible that the profound post-9/11 change in the climate may cut strongly against the formal recognition of a right to anonymous speech.

As I discussed in another column, the post-9/11 climate is a terrible context to argue for a right to anonymous speech - a right that, if recognized, might in theory imperil not only libel suits, but also criminal investigations.

Ultimately, regardless of whether a right to proceed anonymously in certain circumstances is formally realized, it's important for would-be plaintiffs to remember that fighting to expose online identities, in order to pursue a libel suit, will itself require cumbersome, costly litigation. And that reality, in turn, imposes what is effectively an entry barrier for would-be libel plaintiffs, and thus decreases the advantage they would otherwise enjoy in the context of offline defamation suits.

If the speaker is anonymous, the plaintiff will have to engage in two-stage litigation: Unmask the speaker, and then go after him or her. Moreover, until the anonymous speaker's identity is revealed, litigation costs will likely be paid by the deep-pocketed ISP (or perhaps a pro-Internet-speech nonprofit), not by the potentially shallow-pocketed defendant.

Judicial Solutions That Seek to Accommodate Defendants' Right to Speak Anonymously

In addition to its recognition of a right to speak anonymously, Krinsky is also notable because the court sought to craft a way of "providing an injured party a means of redress without compromising the legitimate right of the Internet user to communicate freely with others." In so doing, it reviewed interesting solutions other courts had employed in the past.

These solutions included requiring the plaintiff to post a demand for the anonymous poster to reveal himself or herself, on the very message board or other forum where the remark at issue first appeared. This solution seems wise as it puts little burden on the plaintiff, and - in the rare case where the writer simply comes forward - it will prevent the court from having to potentially violate the defendant's First Amendment rights, and thus avoid raising a constitutional question.

These solutions also included requiring the would-be plaintiff to make a prima facie showing to a court that, in fact, there is a basis for believing each element of the libel claim can be proven. The Krinsky court decided to impose this requirement.

Defamation is defined as the publication - with negligence or, in cases such as one in which the plaintiff is a public figure, "actual malice" - of a false statement that causes damage. Thus, at this stage, the plaintiff must prove the "publication" of a "statement" (that is, an assertion of fact) that caused the plaintiff damage. In the Krinsky case, the California Court of Appeal held that there was no statement of fact, for the statement of which the plaintiff complained was mere opinion - indeed, rhetorical "hyperbole," which the Supreme Court has specifically held cannot be the basis for a libel suit. Indeed, the ability to voice opinions and beliefs is central to the First Amendment.

This case demonstrates how online defamation claims can be harder to bring because of the poster's initial anonymity: In Krinsky, the defendant prevailed without paying a cent, or ever being outed.

Could Libel Law Someday Be Replaced in Large Part by Private Online Reputational Systems?

Anonymity is not the only reason that online libel law is more pro-defendant and pro-writer. As I mentioned in my first column, suing writers who live abroad may be costly or futile. Even worse, if a damaging rumor circulates and then is constantly repeated, pinpointing its origin may be near-impossible. Granted, each repetition of the statement could be the basis for a suit. (Contrary to popular belief, repeating a libel is still a libel, even if the original speaker is identified.) But unless the first repetition can be identified, ten thousand repetitions by different writers that together cause a million dollars worth of damage will probably be deemed to have caused only about $100 of damages each - not a sum worth suing over, let alone a sum that makes it worth tracking down each writer to enforce the judgment.

These problems, which create a more level (and even arguably more pro-defendant) online playing field may cause everyone who speaks and is spoken about online to yearn for a better system. That raises an exciting possibility: Particular websites may police false statements with means completely different from that of libel law - and potentially far fairer and/or more effective.

A Case Study: eBay's Online Reputational System

I began my first column in the series with the example of eBay's online reputational system - by which buyers and sellers can build up a strong online reputation through customers' positive ratings, or see that reputation harmed by negative ratings. I focused especially on eBay's recent, controversial decision to take away sellers' ability to give buyers' negative ratings.

EBay's rationale for its decision was that many sellers were waiting until buyers first rated them, and then retaliating by giving a negative rating every time they received one. As a result, buyers' ratings were sometimes reflecting not negative qualities on the buyer's part, but simply the fact that the buyer was unfortunate enough to do business with a sub-par and vengeful seller. Some sellers spoke out against the decision, however - pointing out that, although they were not among those giving retaliatory feedback, they still had been robbed of a voice to speak out against bad buyers - those who pay belatedly or not at all, or request refunds for no good reason.

For my purposes, eBay's decision is notable for two reasons: First, it gave two classes of writers (buyers and sellers) unequal speech rights - something that could not occur in the real world, and that might concern us when it occurs online. Second, it was a measure intended to protect reputation from unfair attack - just as libel law does - but one that occurred quite quickly, whereas much of libel law has not changed in any important way since New York Times Co. v. Sullivan, the case decided in 1964 that set the "actual malice" standard for public-figure libel suits, and its progeny.

New York Times Co. is portrayed as a great victory for the First Amendment. Compared to what came before it, it certainly was. Compared to what may follow on its heels, in the age of the Internet, it may be reduced to a footnote. After all, New York Times Co. has not, in practice, stopped newspapers from frequently having to settle meritless suits to protect their confidential sources, nor has it changed the fundamentally pro-plaintiff nature of libel law in a society that purports to honor the First Amendment.

In light of the Internet, we no longer need a cumbersome, unfair, extortion-prone libel system in which the government ineffectively attempts to police the marketplace of ideas. Instead, online reputation systems, together with the Internet's greater equalization of different writers' access to forums and to attention, will do much of the policing for us.

Current and Future Online Protection for Aggrieved Plaintiffs

No longer, too, are libel plaintiffs helpless individuals at the mercy of large newspapers who can smear them with impunity. On the Internet, if these individuals can get the attention of any of a myriad of influential bloggers or sites to plead their cases, their voice can be heard, and reputational damage can be corrected in ways that money can't buy.

But what if certain classes of writers are simply gagged in certain ways - as eBay did to its sellers? The answer, I think, is that much more sophisticated systems are possible, will prove superior, and will be developed as time goes on. After all, eBay's decision, while providing a clear and simple rule, does not effectively serve its stated goal: Getting rid of retaliatory, and only retaliatory, seller feedback. With better algorithms to pick out true retaliators, gagging a whole class of eBay users would have struck eBay as inefficient - since honest, non-retaliatory seller feedback can be useful to other sellers.

In sum, as sites experiment with reputational systems, it seems very likely that more fine-grained approaches will lead to greater fairness to writers and their targets alike. Such approaches may also make libel law obsolete, and ensure that the First Amendment thrives as never before.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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