Combating offensive or illegal online speech is difficult both for practical and legal reasons. On the practical side, the ease of anonymous communications on the Internet presents problems in identifying the person responsible for offensive or illegal communications. From the legal side, the First Amendment often provides protection of speech that is critical, annoying, offensive or demeaning. However, the First Amendment does not provide a shield for libelous speech, nor does it protect speech that invades another’s privacy. The U.S. Supreme Court has repeatedly held that the government cannot regulate (or impose liability upon) the content of Internet speech to an extent greater than it may regulate speech in more traditional areas of expression such as print media. However, this should not prevent a private entity like Knox College from enforcing its own policies to prevent improper use of network and computer resources to offend or harass others. The following article gives additional information on the procedural and legal framework for addressing online speech.
I. Anonymity on the Net
The ability to anonymously use and send messages on the Internet creates a substantial, but not insurmountable, hurdle to imposing liability on Internet users. Knox College can generally enforce its own policies and cooperate with aggrieved users of Knox College computer resources to enforce those policies. A person who has a legal action for anonymous acts (such as for defamation discussed below) can also bring suit against "John Doe" without knowing the actual name of the defendant. Once the suit is filed, the plaintiff can conduct discovery and subpoena other online service providers to collect account and server information that may be of use in tracking down the anonymous defendant. The success of such identification efforts will vary from case to case and will depend on the information retained by the subpoenaed party and the ability to resolve that information to a particular user. If the defendant is discovered, his or her name is substituted for John Doe and the suit proceeds.
II. Legal Remedies
In general, due to the free speech protections of the First Amendment, a person cannot sue another merely because they have been distressed or offended by speech. Instead, the speech must fall into certain categories that are afforded less constitutional protection. In the case of online speech, the two most common categories involve defamatory speech and speech that invades another’s privacy. These areas of law are complicated, with many exceptions and defenses, however a summary of each is provided below:
The maker of a statement is liable for defamation if he or she makes a false and unprivileged statement of fact that is defamatory about a target person and published with fault. In addition to conventional publishing methods such as speaking and writing, it is commonly accepted that the law of defamation applies to online activities such as email, chat rooms, and posting to a bulletin board. Traditionally, defamation was categorized into two types: libel and slander. Libel was written or visual defamation, and slander was oral or aural defamation. Slightly different rules applied to each type, and it was generally harder to recover for slander. However, Illinois has rejected the slander/libel distinction, and all types of defamation are treated the same under Illinois law.
Each of the underlined elements of a defamation claim is discussed below:
It is commonly said that truth is an absolute defense to a claim of defamation. In Illinois, a person suing for defamation would have the burden to prove an allegedly defamatory statement is false.
The law considers certain types of statements to be privileged, and such statements will not result in defamation liability. The determination of whether a privilege applies depends heavily on the particular circumstances surrounding the statement’s publication. However, most privileged statements arise in the context of legislative, judicial and other governmental proceedings or in connection with fair comment and criticism on matters of public interest.
Statements of Fact
To be defamatory, a statement must be factual. Traditionally, opinions have been protected under the First Amendment unless they can be reasonably interpreted as implying undisclosed defamatory facts as the basis for the opinion. Thus, if a person remarks that he believes his neighbor to be an alcoholic, a jury might find the statement was not just an expression of opinion but based on undisclosed observations made by the neighbor and therefore defamatory. If a person bases his expression of a derogatory opinion on his own statement of false and defamatory facts, he is, of course, subject to liability for defamation for the facts regardless of whether the opinion might also be considered defamatory.
A statement is considered defamatory if it tends to harm the reputation of a person so that it lowers that person in the eyes of the community or deters third persons from dealing with him or her. This would include statements that expose the subject to hatred, ridicule or contempt or reflect unfavorably on personal morality or integrity. To be considered defamatory, a statement must be shown to be either “defamatory per se” or to have caused actual, monetary loss to the subject.
Defamatory per se statements are considered so offensive that the law will presume damage to reputation. Illinois considers false, factual statements charging the following to be defamatory per se:
(1) commission of a criminal offense;
(2) infection with a loathsome communicable disease such as a venereal disease;
(3) inability to perform work duties or lack of integrity in performing work duties;
(4) lack of ability in trade or business;
(5) adultery, unchastity, promiscuity or fornication; or
(6) swearing falsely or committing perjury.
Some examples of defamatory statements include calling a woman a “slut” or a “whore” or falsely accusing a person of having gonorrhea.
If a statement is not defamatory per se, the statement can only be considered defamatory if the subject can show actual harm to reputation causing monetary loss (so called "special damages"). Such monetary harm can arise from lost employment, lost customers or lost opportunities. Emotional distress is generally not considered special damages even if the distress results in serious illness.
Target of Defamation
To recover for defamation, the plaintiff needs to show that he or she was identified as the subject of the defamatory statement. The test is whether a person receiving the statement would reasonably understand that the communication referred to the plaintiff. In general, if a group is defamed, the group as a legal entity must sue to recover for the defamation. However, an individual member of a group can recover for defamation of the group only if the group is so small (at least 25 or fewer) that the communication can be reasonably understood under the circumstances to refer to the member.
To recover for defamation, a person must show that the defamatory statement was made with a certain level of fault or recklessness. This level of fault depends on whether the person who is the subject of the statement is a public official/public figure or a private figure. Public figures include not only general purpose public figures such as movie stars and elected politicians, but also “limited purpose” public figures who have gained notoriety, either voluntarily or involuntarily, as a result of a newsworthy event or public interest (e.g., a fireman saving a child from a burning building would be a limited purpose public figure).
Public Figures: If the subject of a defamatory statement is a public figure, he or she must show that the maker of the statement acted with either knowledge of the falsity of the statement or with reckless disregard as to the truth or falsity of the statement (referred to as “actual malice”).
Private Figures: If the subject of a defamatory statement is a private figure (or a public figure complaining about a statement concerning a purely private matter), he or she must show that the maker of the statement acted with negligence in making the statement (e.g., that a reasonable person or journalist would not have made the statement).
In general, the determination of who constitutes a public or private figure depends on the circumstances surrounding the topic and target of the statement. In reality, if the statement is found to concern a public figure or a newsworthy topic, the actual malice standard will apply, and few plaintiffs can meet the burden of showing actual malice.
Damages for Defamation
A winning plaintiff can recover general damages for emotional distress and special damages for actual loss. Punitive damages cannot be recovered unless the plaintiff proves actual malice.
Republishers of Defamatory Statements
Traditionally, a person who repeated a defamatory statement (a republisher) was just as responsible for the defamatory statement as the original author if the republisher knew or had reason to know of the defamatory nature of the statement. Several early cases, concluded that this rule applied to online activities, and thus found Internet Service Providers (ISP’s) and bulletin board operators to be liable for messages posted by their users. In response to one such case, Congress passed a broad provision in the Communications Decency Act that provides "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. [[section]] 230(c)(1). It thus now appears that ISP’s and bulletin board providers are immune from suit for defamatory statements made by their users, and several courts have so held. Congress' rationalization behind Section 230 is that ISP’s do not have the technical ability to screen and monitor all content through their systems and that they would avoid making even minimum efforts at monitoring if it would cause them to "know" of defamatory statements and thus become liable for republishing. Thus, Section 230(c)(2) gives ISP’s immunity for editing and removing content that they believe in good faith to be obscene, harassing or otherwise objectionable whether or not such material is constitutionally protected.
Publicity Given to Private Life - A person who gives publicity to the private life of another, is subject to liability for invasion of privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. Examples of matters of legitimate concern to the public that do not constitute an invasion of privacy include newsworthy ideas, matters of public record, and matters for entertainment or educational purposes. It has not been settled if the Constitution requires that “actual malice” be shown for publicity involving public figures as in defamation cases.
Publicity Placing Person in False Light - A person who gives publicity to a matter concerning another that places the person in a false light, is subject to liability for invasion of privacy if the false light causes the other person to be viewed in a way that would be highly offensive to a reasonable person and the speaker acted with reckless disregard of the falsity of the publicized matter. Putting someone in a false light means making that person appear to the public in an objectionable way that does not accurately reflect that person. For liability to arise, false light statements must generally be false and involve a major misrepresentation of character, history, activities or beliefs. The level of fault required (reckless disregard) is essentially the “actual malice” standard required for defamation, and in many cases false light publicity will also be defamatory. However false light invasion of privacy does not require a defamatory statement, just that a speaker has recklessly given a person unreasonable and highly objectionable publicity. An example of false light publicity that is not defamatory would be a case where a well-known democrat is tricked into signing a nomination petition for a republican and the petition is publicly disclosed and circulated even after the democrat has demanded that his name be removed.
III. Enforcement of Internet Usage Policies
In many cases, the fastest and most practical way to deal with offensive or improper speech is by contacting the online service provider who is republishing the speech and asking them to remove it. Most service providers reserve the right to monitor and edit content published on their services through an Acceptable Use Policy. In such cases, each user is required to agree to abide by the Acceptable Use Policy to use the service, and the service provider would be able to act in the case of user breach. As discussed above, Section 230(c)(2) of the Communications Decency Act also provides for good faith removal and editing of objectionable content. Working with the service provider can also avoid the delay and hassle of tracking down an anonymous user. While removal of content can be a quick and relatively easy remedy, it will usually not involve a retraction, apology or compensation, and the target of harassing speech may not find mere removal to be a “complete” remedy. In such case, the only real remedy would be to pursue legal action.
IV. Criminal Harassment
In addition to civil liability discussed above, there is also the potential for criminal liability for harassment in some cases. An aggrieved person should contact the police to make a complaint. Once started, the criminal process is controlled by the police and/or state’s attorney who are responsible for investigating and bringing the case. The lack of control on the part of the complainant is one of the main problems with pursuing a criminal remedy as police may be overstaffed or put off by the anonymous nature of the perpetrator and therefore not devote adequate resources to the investigation.
In Illinois, the Harassing and Obscene Communications Act generally makes it illegal to harass someone by telephone or through electronic communications using threatening or obscene language. The elements of the crime are: (1) Communication of any comment which is obscene with the intent to offend or (2) Communication of any threat of bodily injury or property damage to a person or his family members. See 720 ILCS 135/1-2. Violation of the law is a Class B Misdemeanor with possible sentences up to 6 months in jail and fines up to $1,500.
Unfortunately, there are few cases interpreting this Act, and it is not clear how broadly it applies. In general, the harassing language would need to be strong enough to demonstrate that the remarks were not merely flippant or casual but made with a real intent to offend or an intent to threaten. In addition, there would almost certainly be First Amendment defenses that could limit conviction under the statutes. The U.S. Supreme Court has fashioned a fairly strict definition of the term “obscene” to mean material that describes sexual conduct in a patently offensive way so that the average person, applying contemporary community standards, would find the work as whole appeals to the prurient interest and lacks serious literary, artistic, political or scientific value. The essence of this long definition is that it is fairly difficult to identify, and prove, that something is obscene -- particularly since the definition is based on what a person in the community might consider to be patently offensive, sexually explicit and without other merit.
Despite any potential difficulty in getting a conviction, the most useful aspect of the Harassing and Obscene Communications Act may be its deterrence value. In addition, investigating the potential claim does not require retaining an attorney or seeking legal advice. Instead, an aggrieved person would contact the police or state’s attorney who would evaluate the strength of the case and decide whether there is enough to proceed.
It should be noted that criminal liability requires a specific intent to offend or threaten, and it will probably not be possible to show that a service provider or bulletin board operator possessed the requisite intent to commit the crime (or possibly even that they used electronic communications). Thus, criminal liability will probably only arise against the maker of the harassing statement -- who, as noted above, is often anonymous.
Note: This article has been prepared for the general information of readers. It is not meant to provide legal advice with respect to any specific matter.