Online publishing and libel law
When washingtonpost.com's new conservative blogger was forced to resign recently after his past plagiarism caught up with him, the fallout was swift and brutal.
The Post's online editor pledged to more carefully vet new hires and, in a meeting with fellow Post employees, vowed to do a better job of applying the newspaper's journalistic standards to the website. It was, no doubt, an embarrassing few days for a media company with a brand name to protect.
While no claims were made against blogger Ben Domenech related to his short tenure with washingtonpost.com, the tempest has raised questions about legal pitfalls news organizations face as they rapidly expand content on their Internet sites and more frequently publish online work by contributors, including bloggers, with whom they have limited professional contact.
The bottom line: Rules of libel apply to online content just the same as if the words were printed on paper. But in at least two significant areas, the unique nature and worldwide reach of the Internet are testing other legal precedents established for hard copy published in the United States.
When are media companies culpable for libel claims involving online material they publish from contractors or freelancers? And can foreign courts hear defamation cases involving online material published by U.S.-based companies?
It's that last question that's really giving media lawyers the willies. The international reach of the Internet has led some plaintiffs to seek redress in foreign courts much less friendly than the United States to free-speech rights. A nightmare scenario, one lawyer told me, would be to have an online libel case against a U.S. media company filed in Britain, where there's a highly motivated bar, the presumed legitimacy of a western-style court system, and pretty much zilch in the way of American-style First Amendment protections.
In the most notable jurisdiction case decided so far, a Canadian court of appeals last September ruled that a lower court had no jurisdiction to hear a defamation claim against the Washington Post filed by former United Nations official Cheickh Bangoura. Bangoura was living in Kenya when the Post ran stories online saying that he had been investigated for sexual harassment, financial improprieties, and nepotism. But he had since moved to Canada.
The appeals court not only found a negligible connection between Bangoura and his new home in Ontario but also determined he suffered no significant damage to his reputation in Canada.
That was good news for media lawyers like Dale Cohen, who said that U.S. federal courts are "starting to get the notion that this needs to be fixed–but whether we can do that short of a treaty is not clear." What also isn't clear is whether a plaintiff who gets a foreign court judgment against a U.S. media company can come here to get it enforced. "I would hope that we could convince a court that [enforcing a foreign libel decision] would violate the First Amendment," said Cohen, a former in-house lawyer for the Tribune Co. who teaches media law at the University of Maryland.
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