Digital media organizations are being included in defamation lawsuits with growing frequency. Many of these lawsuits claim that reputations are being damaged by anonymous commenters, who use the easy and ubiquitous power of the Internet to publish and disseminate lies, insults and libelous characterizations.
The outbreak of cyberlibel litigation stems from the explosive distribution of self-published material on open interactive communication platforms, including news outlets, blogs, message boards, user-rating sites and social networking websites, such as Facebook and Twitter.
But case law and legislation dealing with critical “speech” on the Internet has not matured at the same rate as the technology that facilitates the wide distribution.
State and federal courts are struggling to balance the First Amendment right of free speech and freedom of the press – including anonymous free speech – against the statutory and common law protections accorded to those who genuinely believe that their reputations are being seriously – and all too readily – damaged by falsehoods whose “life” in cyberspace can be unlimited.
Interestingly, media organizations appear to have a diminishing number of libel suits being filed directly against them, partially due to federal protections enacted 14 years ago in Section 230 of the Communications Decency Act.
However, news websites that provide open forums with anonymous or pseudonymous commenting are still being pulled into litigation through discovery subpoenas from aggrieved persons, businesses and organizations who wish to unmask and sue the nameless/faceless authors of derogatory comments.
Facing increased liability, many news outlets have amended online commenting policies, hired moderators, forced users to register with better identifying information, or partnered with third party social media services like Facebook that require “real” names.
By choosing to censor anonymous speech, many online intermediaries, especially news organizations, have taken on a new role: civility police.
Is it a role journalists should have? Do most understaffed, struggling news organizations actually have the time? As champions of the First Amendment and free speech, is it hypocritical of journalists to act as online censors?