Are new Internet laws limiting freedom of speech?

For many people, the Internet has opened a whole new world of freedom, including the freedom to express themselves in ways that they could not do so before, and actually be heard. A lesson however that some have learned the hard way is that as defamation and libel laws are slowly invading the internet, one needs to be just as careful as they would be anywhere else, if not more, when speaking their minds online.

While the Communications Decency Act has made Internet Service providers immune from liability for content that their members post, this by no means extends to the members themselves. Even if a user seems to be anonymous, this mere fact does not insulate his identity nor protects him from lawsuits (an example being that Calloway Golf Company was recently able to subpoena the records of Yahoo and find that a competitor was behind several negative comments posted about the company). This is a concern of being liable for defamation, is one that before the growth of online forums and communications did not exist outside the media world. However, with libel and defamation laws applying to online content in the same way they apply to newspapers and TV stations, it seems that this freedom of speech and ability to reach large audiences that the Internet offers does not come without a price. Quoting a former Federal Communications Commissioner, “the same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit”.

It is unquestionable that since the trend has started, the number of online libel and defamation lawsuits will only keep increasing. What remains to be seen is if this number will be increasing steadily or if there will be a sudden explosion of lawsuits. Whatever the case, with case law being relatively limited meaning not enough precedents set to cover a wide spectrum of scenarios, the boundaries of what constitutes online defamation and libel are not yet clear and it is advisable to err on the side of caution. For instance, while the legal community believes that for a plaintiff to win a case he would need to prove actual malice from the part of the defendant, malice is then defined to include negligence, a concept that has yet to be defined in the context of cyberspace. Bottom line? To be safe, make sure that whenever you publish a post that can potentially be harming someone’s reputation, you make it clear that you are stating your opinion, and if possible, make sure you are also stating the facts on which your opinion is based. Otherwise, even a bad restaurant review could arguably get you into trouble if expressed in the wrong way.