Key Concepts of Defamation

Liability

The tort of defamation, traditionally, attempts to balance society's interest of free speech and the individual's right to his reputation. The way in which this balance varies from jurisdiction to jurisdiction (while some are more pro-plaintiff, others are more pro-defendant). In traditional media, e.g. print and broadcast media, liability is generally extended beyond the defamer to the "publisher" of the material subject to the defense of innocent dissemination. The idea of holding publishers responsible for libelous material in traditional media has been thoroughly tested and defined in courts in different jurisdictions. Clear precedents for determining who is liable for defamatory statements are well recorded. On the Internet, however, such issues are considerably more nebulous.

In so far as the Internet is concerned, defamation liability has its most important implication in respect of ISPs and websites which host the content of others.

One of the most important issues in cyberlibel is whether ISPs, operators of bulletin boards or website owners are common carriers, distributors or publishers.

Generally, courts have held that a common carrier (telephone or telegraph company) of published or transmitted material has virtually no control over the content of what is communicated over their service. So, they are not liable for the defamation.

Similarly, a distributor of published material such as booksellers, news vendors and libraries, does not exercise control over the content of what is distributed through their service. So, they have no liability for libel unless they are negligent.

On the other hand, a publisher of such as newspapers, magazines and broadcasters, can be liable for defamation. Their liability is grounded in the fact that they can exercise a sufficient degree of editorial control over what they publish.

After all, there are limited cases on the issue of the publisher/distributor characterization and the issue of liability for online defamation, and so limited insight as to what factors a court may consider in order to determine the liability of a particular online service provider for the publication of defamatory material. We can foresee that days are not easy for being a player in the Internet business.