Cybersmear: Supreme Court “Chats” Over Libelous Internet Messages …
The case of *Mathis v. Cannon* involved freedom of expression on the Internet and posed important Internet defamation law questions.
The Supreme Court of Georgia recently decided the case of Mathis v. Cannon by a 4 to 3 margin.1 The case involved freedom of expression on the Internet and posed important Internet defamation law questions.
DUMP DISPUTE LEADS TO INTERNET INSULTS
In the case, a Crisp County, Georgia, man anonymously posted three libelous messages on a Yahoo! Internet message board late one night about Thomas Cannon, an executive of a waste management company. The author of the Internet insults was part of a vocal citizens group that opposed a controversial county waste disposal plant and Cannon’s corporate employer, which hauled garbage to the dump. In the defamatory messages, the Crisp County man, using the alias screen name “duelly41,” falsely stated that Cannon was a “thief” and a “crook,” that he was fired from his previous employment for being a “crook,” and that anyone doing business with him was also a “crook.”
After discovering that “duelly41” was the alias for Bruce Mathis, Cannon sued Mathis in Crisp County Superior Court. Cannon did not seek a retraction from Mathis, but he did ask Yahoo! to delete the messages. The suit alleged that the Internet statements were untrue and constituted libel per se because they suggested that Cannon committed a crime and were intended to hurt Cannon’s business interests. Cannon requested both general and punitive damages in the lawsuit.
CYBERSMEAR VICTIM WINS IN LOWER COURTS
Cannon won a summary judgment in the trial court, and Mathis appealed to the Georgia Court of Appeals. The Court of Appeals affirmed the trial court order and ruled that Mathis, through his Internet postings, committed libel per se.2 Under Georgia law, a libel is a false and malicious defamation of another, expressed in print or writing, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.3 To accuse someone of being a thief or crook and to make charges against someone in reference to his trade or profession is libelous per se.
The Court of Appeals also held that Cannon was not a “limited purpose public figure” and thus was not required to prove actual malice. Under the law, a limited purpose public figure is someone who voluntarily thrusts himself to the forefront of a public controversy for the purpose of influencing its resolution. The Court of Appeals viewed Cannon as a private figure who was involuntarily drawn into the garbage controversy.
The Court of Appeals also ruled that Georgia statutes4 allowing plaintiffs to claim punitive damages only if they request a retraction of defamatory statements are inapplicable to statements made in an Internet chat room. Thus, the retraction statutes could not bar Cannon’s punitive damage claim. A jury, therefore, would determine the amount of actual and punitive damages to award to Cannon.
The Court of Appeals strictly construed the retraction statutes and held that they contemplated actions between an aggrieved party and a newspaper, television station or radio station, not actions between two individuals. The Court of Appeals also held that the statutes do not reach Internet media, but rather address media that broadcast programs at specific times to specific audiences, whereby the retraction would likely be heard by the same audience who heard the defamatory remarks. The Court of Appeals reasoned that “the audience in a chat room is in a constant state of flux” so there is not a great likelihood that an audience in a chat room reading the retraction would be the same audience that read the defamatory posting.
DIVIDED HIGH COURT PROTECTS DEFAMATORY POSTINGS
Thereafter, the Georgia Supreme Court agreed to hear Mathis’s appeal of the lower court decision. A closely divided Supreme Court reversed the Court of Appeals with a decision that is extremely favorable for Internet free speech.
The Supreme Court majority held that Cannon was a “limited purpose public figure” because he was a “crucial actor” who had voluntarily injected himself into the waste disposal controversy. The majority held that the defamatory accusations were made as part of the ongoing garbage debate and that “any person reading the postings on the message board . . . would interpret them as the late night rhetorical outbursts of an angry and frustrated person opposed to the company’s hauling of other people’s garbage into the county.” As a public figure, Cannon must prove actual malice by clear and convincing evidence to succeed in his action against Mathis.4 Because the lower courts did not apply the actual malice standard, Cannon was not entitled to summary judgment.
Additionally, the Supreme Court majority gave the libel retraction statutes broad scope by holding them applicable to any publication communicated to a third party, even one made on the Internet by a private individual. Because Cannon did not demand that Mathis retract the defamatory postings, he is barred from seeking punitive damages under Georgia law.
The majority reasoned that the Court of Appeals improperly gave the word “publication” different meanings within the defamation statutes, made a distinction between media and non-media defendants that is difficult to apply and makes little sense in matters of public concern, and failed to accommodate changes in communications and publishing due to the Internet. The majority also noted that there is no guarantee that a retraction made by a newspaper or television/radio station would likely reach the same audience that saw/heard the original defamatory statement, and that a retraction posted on an Internet bulletin board is as likely to reach the same people who read the original message as any retraction printed in a newspaper or spoken on a broadcast.
The practical effect of the majority’s decision is to require all libel plaintiffs who intend to seek punitive damages in Georgia to demand a retraction before filing a defamation lawsuit. Thus, victims of “cybersmear” must first seek self-help by demanding that the Internet speaker, whether media or non-media, retract the defamatory material. However, due to the anonymous nature of cybersmear, a victim typically does not know the identity of the poster, which makes demanding a retraction difficult. Even if the victim learns the identity of the poster by chance or by issuing a subpoena to the Internet service provider, the libelous material often has been republished numerous times over the Internet. The majority opinion supports free speech by ensuring that private individual publishers, even those who speak on Internet bulletin boards, are entitled to the same protection given to media defendants. According to the majority, the decision “strikes a balance in favor of ‘uninhibited, robust, and wide-open’ debate in an age of communications when ‘anyone, anywhere in the world, with access to the Internet’ can address a worldwide audience of readers in cyberspace.”5
DISSENTERS WOULD HOLD CYBER-CULPRIT ACCOUNTABLE
The Supreme Court minority, however, viewed the case differently. A bitter dissenting opinion criticized the majority for holding Mathis wholly unaccountable for the damaging Internet statements he made about a private individual. The minority thought that “Mathis should be held accountable for speech that exceeded the scope of legitimate criticism and instead fell within the range of reckless falsehoods against a private plaintiff.”
The dissent argued that the majority erroneously concluded that Cannon was a limited purpose public figure and that he was barred from recovering punitive damages because he failed to request a retraction of the defamatory remarks. The minority argued that Cannon’s actions resulted merely from doing his job for a private contractor of a public authority.
The minority also disagreed with the majority’s overly expansive interpretation of the retraction statutes. The dissent argued that if the legislature intended to require a retraction for every defamatory publication and every libel defendant, it could have done so, but that it, instead, limited application of the statutes to defendants who regularly publish information by mandating that libel defendants retract libelous statements in the “next regular issue of the newspaper or other publication” following receipt of a retraction demand.
The minority concluded that the statutes’ plain language requires a retraction demand as a precondition to the recovery of punitive damages only against libel defendants who disseminate information on a regular basis through newspapers, magazines or other publications. The minority reasoned that an individual libel defendant like Mathis, who posted three messages on the Internet, was incapable of complying with the requirement that a retraction be published in the “next regular issue.” The minority acknowledged, however, that the retraction statutes may, in certain circumstances, be applicable to an individual or media defendant who regularly publishes an Internet newspaper, magazine or other publication.
The minority concluded its sharply worded dissent by stating that “the majority ruling which asks no self-censorship of an Internet poster is unconscionable in that it allows Internet users free [rein] to injure the reputations of others, even when the statements cross the bounds of propriety.” The minority announced that it would apply defamation laws so as not to threaten legitimate criticism or deter truthful Internet speech, while at the same time “protecting private individuals from cyberspace posters, like Mathis, who use the Internet to seek to foster the ‘poisonous atmosphere of the easy lie.'”6
THE FUTURE OF DIGITAL DEFAMATION CASES
Internet defamation lawsuits such as this one highlight a conflict between the rights of an individual to speak anonymously and freely on the Internet and an individual’s need to protect his reputation. The Georgia Supreme Court was sharply divided on how best to balance free speech rights on the Internet with the rights of individuals to be free from defamation. As the Internet continues to expand as a vehicle for information and commerce, the problem of cybersmear will no doubt increase. The approach taken by the majority in this case is likely to be followed by other courts because it ensures that an individual speaker on the Internet, like a newspaper or broadcast company, has full Constitutional protection, and that the Constitutional rights that Americans enjoy in the non-digital world are transferred intact into cyberspace.
- Mathis v. Cannon, 573 S.E.2d 376 (2002). ↩
- Mathis v. Cannon, 252 Ga. App. 282, 556 S.E.2d 172 (2001). ↩
- O.C.G.A. § 51-5-1. ↩
- Whether a plaintiff is a public or private figure is critical in libel law because it affects the degree of fault that the plaintiff must prove against the defendant. While public figures must prove actual malice to prevail in their defamation actions, private figures need only prove that a defendant acted with negligence. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 555 S.E.2d 175, 183 (2001). ↩
- 573 S.E.2d 376, 386, citing Reno v. American Civil Liberties Union, 521 U.S. 844, 851-53 (1997). ↩
- 573 S.E.2d 376, 389, citing Rosenblatt v. Baer, 383 U.S. 75, 94 (1966) ↩