Scenario in US

Law and Regulations

Before independence, the U.S. had been using the English Law system and in the 16th century, the authorities began using the law of defamation to punish political criticism against the government (Carter, 1999). Since the United States Supreme Court recognized the First Amendment limitations on the common law tort of defamation, courts have struggled to achieve the proper balance between the constitutionally protected guarantees of free expression and the need to protect citizens from reputation harm. In 1964, the Supreme Court ruled that public officials (later public figures) had to show that an allegedly defamatory statement was published with knowledge of its falsity. Alternatively, the plaintiff must show the defendant published with a reckless disregard for the truth (Flint, 1994).

In order to avoid long and costly trial procedures, US law reformers produced a draft legislation named Uniform Defamation Act in 1991. Though the Act was withdrawn eventually, the suggestions were revived later in the Uniform Correction or Clarification of Defamation Act in 1993.

It is believed that the correction or clarification of a published defamation may restore the victim's reputation more quickly and thoroughly than a victorious conclusion to a lawsuit. Thus the Uniform Correction or Clarification of Defamation Act seeks to provide strong incentives for individuals promptly to correct or clarify an alleged defamation as an alternative to litigation, which is a more simplified resolution. Moreover, the Act provides a uniform set of requirements that assures the media a consistent opportunity to correct or clarify.

The Act not only applies to the traditional media, but also the digital ones. In the Section 2 "Scope", it stated that this Act "applies to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information." Unless a good faith attempt to obtain a correction or clarification is made within 90 days of knowledge of the publication, the plaintiff will be limited in any defamation action to recovery of provable economic loss. The 90-day period runs from knowledge of the publication by the requesting party, not from the date of publication (NCCUSL, 1993).

With increasing defamation litigations against the ISP, the U.S. has issued and implemented the Communication Decency Act (CDA) of 1996, which was a reflection of the concern about the liability of ISP. The Section 230 of the Act states that "no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." Thus, it eliminates potential civil liability where an ISP or user leader takes voluntary actions to restrict access to or availability of material that the ISP or the user leader considers objectionable. These provisions protect the ISP from being identified as a publisher in cases which the plaintiff argues the ISP has control or censorship power over the content (Ferrera, 2001).