When the libel trial of Internet gossip maven Matt Drudge gets under way in the spring, free speech advocates will be watching the proceedings closely. For years, critics have argued that libel law is ripe for reform. Now they've got new ammunition, because online media poses serious challenges to this body of law.
Drudge, of course, has been in hot water since last year, when he reported (erroneously) that Sidney Blumenthal, a career journalist preparing to take a job in the White House, was a wife beater. Although Drudge posted a retraction the next day, Blumenthal filed a US$30 million libel suit against Drudge and AOL, which carries Drudge's column.
Blumenthal's suit is unlikely to succeed. As a public figure, he has to show that Drudge knew the wife-beating allegation was false or acted with reckless disregard for the truth. Moreover, the fact that Drudge immediately retracted the statement will make it difficult for Blumenthal to show that his reputation was injured -– the bottom line in a libel action.
Whatever the outcome, this case –- and the pivotal role Drudge played in breaking the Monica Lewinsky scandal –- raises important questions about defamation in the digital age, particularly its relationship to free speech. Libel plaintiffs today rarely win, and when they do, their multimillion-dollar verdicts are often overturned or reduced on appeal. Still, these actions can impose an icy chill on freedom of the press. Media organizations spend huge wads of cash defending themselves. Often it's a protracted and expensive mess –- one that can discourage journalists from reporting controversial facts.
The rise of the Internet sheds new light on these problems. A fundamental assumption of current libel law, for example, is the notion that defendants are powerful actors who control the means of communication, while the people they write about are usually little guys who have no way to protect their good name. (This is one reason it's harder for public figures to sue for libel; they're presumed to have sufficient access to the press to rebut false statements.) But does this assumption still ring true in an age when anyone with a modem can be a publisher –- and a public figure?
In a world with many more information sources, all of which should be subject to skepticism, it may be time to revisit the very idea of harm to reputation. And what about the ephemeral nature of online statements? The Drudge case shows how easy it is not only to spread rumors in cyberspace, but to correct them. Finally, if old media defendants believe that their speech is chilled by big-money libel suits, imagine how frigid things could become for individual Internet users. "You could be liable for what you write in your email," says Sandra Baron, executive director of the Libel Defense Resource Center.
The Net doesn't render libel law obsolete. But it should prompt us to think about ways to improve it. A decade ago, after presiding over one of history's messiest libel cases, Westmoreland v. CBS, federal judge Pierre Leval wrote in the Harvard Law Review that both sides might have been better served by a no-fault, no-damages action. Under this arrangement, parties would simply ask a court to declare whether an allegedly defamatory statement was indeed false. Cases would be shorter and cheaper to litigate, and instead of focusing on money or intent, the emphasis would be on whether something injuriously false was said – which, after all, is what libel is really about.
Though this idea has received some support from legal scholars and lawmakers, it never really caught on. But it may be time to give it another look. A no-fault approach recognizes that reputation will be key in the digital age. It protects the good name of those who are wrongly defamed, while scorning those responsible for wrongful defaming. Best of all, it would protect speech much more than libel law does today.
This article originally appeared in the April issue of Wired magazine.
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