Privacy, Libel, Internet

Libel law developed in the decades after Warren and Brandeis's paper as a way "to protect private individuals in their reputations [by providing] four remedies: (1) a civil suit for damages for libel, (2) a criminal prosecution for libel, (3) an action on the case for damages for a trade libel, and (4) a suit for invasion of the right to privacy." In order to constitute libel, speech must fulfill three conditions: "(1) the words must be defamatory; (2) they must be published; (3) the person or persons libeled must be identified."

This definition, interpretation, and enforcement of libel, was in place by the 1920s and is roughly the same metric that courts use today in deciding libel cases. The popularization of radio and television presented some challenges for a libel law meant for print publications. The "extemporaneous remarks" made in radio broadcasts, for example, presented questions over whether offensive remarks should be prosecuted as if libel (written) or as if slander (spoken). Sorenson v. Wood, a 1932 Supreme Court case, determined that radio was eligible for libel; Landau v. Columbia Broadcasting, a 1954 Supreme Court case, affirmed that libel laws were also applicable to television. As revolutionary as radio and television were for many aspects of twentieth century America, their method of dispersion (unidirectional) and their business model (corporate) resembled print media. Extending libel laws to radio and television was not a necessary legal response, but neither was it a paradigm-shifting one.

This lies in stark contrast with privacy concerns brought about by the rise of the Internet. Privacy laws need to be rethought and, thus far, no Warren or Brandeis have appeared to show the way forward in shaping privacy laws for an age in which anyone can publish anything about everyone.

But privacy is relative; "to say simply that something is public or private is to make a rather general claim" and "a conception of privacy must be responsive to social reality since privacy is an aspect of social practices." Privacy cannot be as closely guarded in a world where anyone can blog about their frustrations and the people they perceive to be at fault. However, today's privacy concerns are unique, Michael Froomkin wrote, in that "privacy-destroying technologies" are "being invented and deployed" at a "rapid pace" and "if the privacy pessimists are to be proved wrong, the great diversity of new privacy-destroying technologies will have to be met with a legal and social response that is at least as subtle and multifaceted as the technological challenge."

How best to preserve privacy in the age of ubiquitous information? Nonlegal remedies hinge on a combination of "enlightened self-regulation" by the data collector and the "invok[ing of] the rhetoric of privacy-enhancing technologies or other forms of self-help" for the data subject. This laissez-faire approach has had some successes. Closed computing, such as social networking Web sites with privacy filters, is one example of opt-in privacy where companies that guard data are entrusted with information and reap large profits when they keep the trust.

But one needs only to conduct an Internet search of their own name to see that self-regulation has proved a failure at containing information. The wilds of the Internet must be tamed. The tamer should proceed with caution when considering increasing privacy through legal means-either through tort reform or through "transactional data-oriented solutions" meant to "change the defaults" of information from public to private. In addition to potentially trampling on the First Amendment, both legal approaches have significant economic costs and can be difficult, if not impossible, to enforce.

But the rise of the Internet has increased the pool of gossipers as the rise of the tabloids did in the 19^th century, and the 21^st century needs a libel law-a legal approach to privacy. To redress the inequities of the Internet rumor mill, Daniel Solove proposed a middle way between an authoritarian crackdown and a libertarian resignation. He advised that a modern libel law "should cast a wider net, yet have a less painful bite," reducing the size of damage awards while expanding protection with the goal of "imparting a sense of responsibility on those who post online, deterring the spread of gossip and rumors in cyberspace, and creating incentives for parties to resolve their disputes informally." Something along these lines is certainly necessary. Our nation would be stronger if its citizens once again had recourse to defend their reputations from specious attacks.

Works Cited

Siebert, Frederick Seaton (1934). "The Rights and Privileges of the Press."New York: D. Appleton Century Company. P. 122.

Wittenberg, Philip (1947). "Dangerous Words." London: Oxford University Press. P. 267.

Solove, Daniel J. "Conceptualizing Privacy." California Law Review, Vol. 90, No. 4 July, 2002. Pp. 1132-42

Froomkin, Michael. "The Death of Privacy?" Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm? May, 2000. P. 1543.