Internet chat and message boards should be treated as slander and not libel. The following is from our Appellants' Opening Brief and a good, albeit lengthy, descriptor of why:
"The defamation case was wrongly tried on a theory of libel rather than slander.
1. In California, slander is defamation by oral or “mechanical” means, while libel is defamation by “fixed representation to the eye.”
The heart of this lawsuit is Varian’s theory of defamation. The case for defamation is fatally flawed, however, because the action was wrongly tried on a theory of libel rather than slander.
At common law, written or printed defamation is libel and oral defamation is slander. The distinction is important because libel generally is actionable without proof of pecuniary damages, but slander generally is not. (See Rest.2d Torts, § 568, com. b.)
This distinction, however, predates radio and television. With the advent of those media, the law of defamation has required some fine-tuning. In many states, the classification of defamation by radio or television is determined by statute. “Some of these statutes have provided that radio or television broadcasting of defamatory matter constitutes libel; others provide that it constitutes slander.” (Rest.2d Torts, § 568A, com. b.) The rationale for treating radio and television defamation as libel is that the broad reach of those media makes them similar to newspapers. (See id., com. a.)
California is among those states with statutes providing that defamation by radio or television is slander. Civil Code section 46 defines slander as defamation “orally uttered, and also communications by radio or any mechanical or other means” if it “causes actual damage” or is slanderous per se by alleging a crime, certain diseases, business disqualification, impotence, or “want of chastity.” By separate statutory definition, the term “radio” includes “both visual and sound radio broadcasting.” (Civ. Code, § 48.5, subd. (4).) Thus, “[d]efamation by radio or television broadcast is treated as slander in this state.” (Arno v. Stewart (1966) 245 Cal.App.2d 955, 961.)
In contrast, Civil Code section 45 defines libel as defamation “by writing, printing, picture, effigy, or other fixed representation to the eye . . . .” A television broadcast is not treated as a fixed representation to the eye. With the creation of the Internet, more fine-tuning is now required, to answer the question whether defamation on the Internet is libel or slander. This is a question of first impression which no published opinion has yet addressed. (See George & Hemphill, Defamation Liability and the Internet (1998) 507 Practicing Law Institute, Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series 691, 708.) Because statutory definitions of libel and slander vary from state to state, the answer “may vary depending upon the jurisdiction.” (Ibid.)5/
5/ Varian claimed below that “California courts have referred to defamation on the Internet as being ‘libel,’ not slander,” citing Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1311. (5 AA 1073.) But Nam Tai Electronics addressed rules of personal jurisdiction for defamation on the Internet and only in passing made reference to “libels spread via the Internet.” (Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1311.) Plainly the court’s use of the word “libels” was unconsidered, and the court did not address or decide whether defamation on the Internet is slander or libel, which was not at issue in that appeal. “An opinion is not authority for a point not raised, considered, or resolved therein.” (Styne v. Stevens (2001) 26 Cal.4th 42, 57.)
2. An Internet communication does not fall within California’s definition of libel because it is not “fixed.”
An Internet posting is outside the statutory definition of libel because the posting, though a representation to the eye, is not “fixed” within the meaning of Civil Code section 45 – just as a radio or television broadcast is not fixed.
Internet postings are impermanent and ephemeral. They can be deleted or modified by simple keystroke. They are the opposite of fixed – which is why Justice Sandra Day O’Connor has described the Internet as “malleable.” (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 890 [117 S.Ct. 2329, 138 L.Ed.2d 874] (conc. & dis. opn. of O’Connor, J.).) When the computer is shut down – just as when a television is turned off – that malleable image disappears entirely. The posting can be downloaded and stored just like a radio or television broadcast can be taped, but the posting itself can be deleted or modified at the will of the site’s operator, unlike the fixed content of books and newspapers, which cannot be changed once the presses have run.
Because of this distinction between fixed and malleable images, one of the few published articles on Internet defamation indicates it is slander in California, by comparing California legislation to Texas legislation: “In Texas, a libel is defamation ‘expressed in written or other graphic form,’ a definition seemingly broad enough to include electronic writings and graphics. Tex. Civ. Prac. & Rem. Code, § 73.001. In California, on the other hand, a libel is a defamation ‘by writing, printing, picture, effigy, or other fixed representation to the eye,’ a definition that does not so clearly encompass on-line communications, much of which are not fixed. Cal. Civ. Code § 45.” (George & Hemphill, Defamation Liability and the Internet, supra, 507 Practicing Law Institute, Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series at p. 708, italics added.)
In the supersedeas proceedings, Varian cited a dictionary definition of “fixed” for the proposition that “‘[f]ixed’ means ‘stationary.’” (6 AA 1333, quoting Webster’s 10th New Collegiate Dict. (1993) p. 441.) But the word “stationary” appears in the dictionary definition of “fixed” as a synonymous cross-reference, meaning that the definition of “stationary” may be substituted as a definition of “fixed.” (See Webster’s 10th New Collegiate Dict., supra, p. 21A-22A [a word in all capital letters following an analytical definition is a synonymous cross-reference].) The dictionary’s salient definition of “stationary” is “unchanging in condition.” (Id. at p. 1149.) And the dictionary’s salient definition of “fixed” is “not subject to change or fluctuation.” (Id. at p. 441.)
Thus, “fixed” in the context of Civil Code section 45 means not subject to change. Internet postings are subject to change. Varian, forced to admit that postings can be changed by modification or deletion, claims this cannot be done “easily.” (6 AA 1333.) That is plainly wrong. Delfino and Day can easily modify or delete material on their website whenever they want. Even postings on Yahoo! message boards are commonly deleted by Yahoo! on its own volition after receiving complaints about certain posts, or upon request by the poster of the message. (11 RT 3088, 3093; see also 11/9/01 RT 4243-4244; 24 RT 7035-7038; exh 235 [print out of Yahoo! message board main page showing post numbers 5511-5579 and indicating that post numbers 5572, 5571, 5569, 5568, 5566, 5565, 5563, 5560, 5559, 5558, 5556, 5555, 5554, 5553, 5542, 5541, 5540, 5538, 5535, 5533, 5528, 5527, 5525, 5524, 5516, and 5512 are deleted and no longer accessible].)
Indeed, postings on Yahoo!’s message boards for Varian have been deleted on a nearly-daily basis during the pendency of this appeal. For example, during a six-hour period on April 29, 2002, when 34 messages were posted, 12 of those messages were deleted. (See 6 AA 1371-1372.) Hundreds of postings by death-threat poster “crack_smoking_jesus” have all been deleted from the Yahoo! Varian message board. (See, e.g., 7 AA 1406 [Yahoo! Post # 13159], 1408 [Yahoo! Post # 13319], 1413 [Yahoo! Post # 13454], 1433 [Yahoo! Post # 18120]; messages.yahoo.com q&board=var [Current Yahoo! Message Board as of September 13, 2002, where the above post numbers and all other posts by “crack_smoking_jesus” have been deleted from view].)
StockTalk has gone so far as to eliminate its entire Varian message board, thus deleting from public view all of the anonymous postings that had been made there. (14 RT 3947.) Like spoken words – like slander – the deleted postings have vanished from all but memory.
Indeed, Varian’s opposition to an immediate stay by this court in the supersedeas proceedings acknowledged the ever-changing nature of Internet material: “The nature of the Internet is such that, if the evidence is not gathered now, it may disappear forever.” (6 AA 1219, italics in original.) That feature is what makes defamation on the Internet slander, not libel.
Varian also argued in the supersedeas proceedings that “Internet messages are publications ‘by writing,’ clearly falling within the statutory definition of libel.” (6 AA 1331.) But Penal Code section 422 makes it unlawful to threaten “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat . . . .” (Italics added.) Plainly the Legislature does not consider a statement “by means of an electronic communication device” – i.e., an Internet message – to be a publication “in writing.” (Pen Code, § 422.) That is why Penal Code section 422 distinguishes between the two.
3. An Internet communication falls within California’s definition of slander because it is broadcast by “mechanical” means.
While Internet postings do not fit within the California definition of libel, they fall squarely within California’s statutory definition of slander as communication by “mechanical” means.
The Internet is a mechanical phenomenon. “[A]n electronic bulletin board [is defined] as ‘storage media, e.g., computer memories or hard disks, connected to telephone lines via devices known as modems and controlled by a computer.’ [Citation omitted.]” (Lunney v. Prodigy Services Co. (Ct.App.N.Y. 1999) 723 N.E.2d 539, 542.) Similarly, e-mail is “a medium which is entirely enabled by machines.” (Naughton, A Brief History of the Future: From Radio Days to Internet Years in a Lifetime (2000) p. 146.) The Internet “is comprised of an unimaginable variety of machines of all ages, makes and sizes, running a plethora of operating systems and communications software.” (Id. at p. 153; see also Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp. 44, 48 n.7 [“[The Internet] is an agreement we have made to hook our computers together and communicate by way of binary impulses and digitized signals sent over telephone wires”].)
Personal computers, modems, telephone lines, cables – these are “mechanical” means within the definition of Civil Code section 46, similar to radio or television. The analogy to television is obvious, but the analogy to radio is especially apt because early versions of the Internet used radio transmissions rather than telephone lines to establish links between computers. (See Naughton, A Brief History of the Future: From Radio Days to Internet Years in a Lifetime, supra, at pp. 157, 163.) And now we can even receive radio and television broadcasts through the Internet.
In the supersedeas proceedings, Varian argued that “slander includes only oral communications by radio or any mechanical or other means . . . .” (6 AA 1333.) This argument is contrary to the plain meaning of Civil Code section 46, which defines slander as “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means . . . .” (Italics added.) The words “and also” make defamation by mechanical means such as the Internet a form of slander in addition to oral slander, rather than restricting the slander classification of defamation by mechanical means to oral communications.
In fact, much of what appears on television these days is in the form of visual words. News channels such as the Fox Network, CNN, and MSNBC all provide continuous graphics of news round-ups in word form at the bottom of the television screen – sometimes supplementing the images being broadcast, other times having nothing to do with the images. The hearing-impaired, and legions of fitness buffs, “read” closed-caption television broadcasts. Visual words have become a regular feature of television news. But those words, if they are defamatory, are still slander, not libel, in California. So it is with the Internet.
A few commentators have suggested that Internet defamation is more like libel than slander because of its broad reach. (See Lidsky, Silencing John Doe: Defamation & Discourse In Cyberspace (2000) 49 Duke L.J. 855, 859, fn. 7; Comment, The Long Arm of Cyber-Reach (1999) 112 Harv. L.Rev. 1610, 1612, fn. 9; Loundy, E-Law 4: Computer Information Systems Law and System Operator Liability (1998) 21 Seattle U. L.Rev. 1075, 1106-1107.) That point might be arguable in a jurisdiction that classifies a communication as libel if it “has the potentially harmful qualities characteristic of written or printed words.” (Rest.2d Torts, § 568, subd. (1).) The point is meaningless, however, in a jurisdiction like California that classifies libel and slander quite differently – making the classification dependent on whether the communication is by fixed representation to the eye or by mechanical means.
Reliance on mass reach as a basis for calling a defamatory Internet broadcast libel is impossible in a state where a defamatory television broadcast is classified as slander. With the advent of satellite and cable access, the worldwide reach of television rivals the reach of the Internet. Yet, widely-broadcast television defamation is still slander, not libel, in California. Moreover, the Internet is less invasive than television: “‘[C]omunications over the Internet do not “invade” an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content “by accident.”’” (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 863, quoting American Civil Liberties Union v. Reno (E.D.Pa. 1996) 929 F.Supp. 824, 844.)
Internet communication is also more like spoken conversation than conventional writing. “Although Internet communications are almost invariably ‘written’ communications, they lack the formal characteristics of written communications in the ‘real world.’ In the real world, the author is separated from her audience by both space and time, and this separation interposes a formal distance between author and audience, a distance reinforced by the conventions of written communication. Internet communications lack this formal distance. Because communication can occur almost instantaneously, participants in online discussions place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. Hyperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” (Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, supra, 49 Duke L.J. at pp. 862-863.)
Internet defamation is more like oral defamation than printed libel. In any event, however, analogies to spoken or printed words are not determinative in California. As communication by mechanical means, not a fixed representation, defamation on the Internet is by California statute slander, not libel.
4. The law of slander affords more appropriate protection for Internet speech than the law of libel.
Statutory considerations aside, it is sound public policy to apply the law of slander rather than libel to speech on the Internet.
Liability for slander requires the plaintiff to prove special damages – actual pecuniary loss as a result of the defamation. Civil Code section 46 provides that in order to constitute slander, publications must have caused “actual damage” unless they were slanderous per se. This provision has been treated as requiring special damage (see White v. Valenta (1965) 234 Cal.App.2d 243, 250-254) – a requirement rooted in the English common law (see id. at p. 251) and a prominent feature of American law (see, e.g., Marczeski v. Law (D.Conn. 2000) 122 F.Supp.2d 315, 325-326 [publication without “proof of special damages such as a pecuniary loss” held not actionable as slander]). In contrast, no pecuniary loss is necessary to impose liability for a libel that is facially defamatory. (Civ. Code, § 45a.)
The law thus affords the highest degree of protection for the types of communication that could constitute traditional slander – speech uttered in a public forum such as a street corner, a sidewalk, or a town square. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 155 (conc. opn. of Werdegar, J.).) The Internet is today’s dominant public forum. It has been described as “the new ‘village green’ for voicing ideas and persuading one’s listeners.” (Kline, Freedom of Speech on the Electronic Village Green: Applying the First Amendment Lessons of Cable Television to the Internet (Fall 1996) 6 Cornell J.L. & Pub. Pol’y 23, 58.) As the 21st Century’s “village green,” the Internet should be afforded the greatest protection – in this case, by applying the law of slander, not libel.
The present case is part of an incipient ripple of litigation that threatens to become a tidal wave of corporate effort to use the judicial process to silence criticism on the Internet. Increasingly, corporations are filing defamation lawsuits in retaliation for statements made about them by individuals on websites and Internet message boards and in e-mail. (See Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, supra, 49 Duke L.J. at p. 858 & fn. 6.)
“One of the most striking features of these new cases is that, unlike most libel suits, they are not even arguably about recovering money damages, for the typical John Doe has neither deep pockets nor libel insurance from which to satisfy a defamation judgment. Why, then, do plaintiffs, many of whom are wealthy corporations, choose to sue relatively impecunious John Does? The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” (Lidsky, Silencing John Doe: Defamation & Disclosure in Cyberspace, supra, 49 Duke L.J. at pp. 858-859.)
These lawsuits pose a dangerous threat to free speech on the Internet. “Many corporate plaintiffs that sue for Internet libel seek to send a message to the public that they will pursue aggressively anyone who criticizes them online, and these plaintiffs seem to be using libel law to squelch not just defamatory falsehoods but legitimate criticism as well . . . .” (Lidsky, Silencing John Doe: Defamation & Disclosure in Cyberspace, supra, 49 Duke L.J. at p. 883.) “There is some danger, therefore, that the growing popularity of the new Internet libel suits may chill more than defamatory falsehoods – it may also chill the use of the Internet as a medium for free-ranging debate and experimentation with unpopular or novel ideas.” (Id. at p. 890.) “The chief threat posed by the new cases is that powerful corporate plaintiffs will use libel law to intimidate their critics into silence and, by doing so, will blunt the effectiveness of the Internet as a medium for empowering ordinary citizens to play a meaningful role in public discourse.” (Id. at p. 945.)
“[T]he Internet – as ‘the most participatory form of mass speech yet developed,’ [citation] – is entitled to ‘the highest protection from governmental intrusion.” (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 863, quoting American Civil Liberties Union v. Reno, supra, 929 F.Supp. at p. 883.) In California, that protection already exists, by operation of the statutory classifications making defamation on the Internet slander rather than libel. Treating Internet defamation as slander strikes the right balance of competing interests, ensuring that people who suffer pecuniary loss from defamation have redress through the courts, while preventing powerful institutions from intimidating individuals into silence through the threat of libel litigation that is not justified by pecuniary loss."
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