Taking it back in cyberspace: State retraction statutes, defamation suits against online newspapers

Newspaper Research Journal, Summer 1998 by Hoefges, R Michael

Most state statutes do not encompass online publications, but court rulings will determine legal status unless state legislatures act.

With the inexorable march of time has come an age of technology of previously unimagined dimensions. Methods for news delivery have advanced apace with general scientific achievements.

Do technological advances require rethinking legal principles that have existed for previous modalities? Do modern techniques for delivering the news change the rules applicable to providers?1

News media have evolved and proliferated over time. The American public now obtain news from myriad sources, including an increasing array of online news services that utilize computer networks. The number of online newspaper services reportedly tripled from 1994 to 1995.[2] The Newspaper Association of America estimated that in early 1996,175 daily newspapers were accessible via the Internet, commercial online services and bulletin board services (BBS).3 The NAA expected a 300 percent increase in that number by the start of 1997, but a review of the Editor & Publisher Interactive listing of newspapers on the Internet identified 855 online newspaper services in the U.S. in early 1997, more than a 500 percent increase.4

A recent American Opinion Research survey of newspaper editors and publishers indicated that dwindling readership was their primary concern.5 Almost half of these editors and publishers reported that they planned to launch online versions of their newspapers within a year or would be considering it. The recent growth of online newspapers seems likely to continue.

The explosive growth of online communications has arrived "virtually overnight," according to one commentator.b This has resulted in uncertainty surrounding legal issues that have arisen in the shifting context of online media. The judicial and legislative processes are generally ill-suited for rapid change, often resulting in an awkward developmental gap between burgeoning technology and existing legislation and legal precedent.7

Defamation claims have followed information providers into the online arena. Courts are faced with deciding the extent to which the traditional defamation laws apply in online media cases. A particularly salient issue to online newspapers is the extent to which an online retraction of alleged defamation will operate as a defense in a civil defamation lawsuit. Unlike information in print media, online information can be retracted and corrected instantaneously if need be.

More than half the states have retraction statutes. The majority of these statutes provide that the retraction or correction of defamatory material can mitigate and sometimes bar damages that a jury might otherwise award. However, most of these statutes were enacted when online information services were unheard of or embryonic, and were intended to apply to defamation claims against traditional media. Therefore, while retraction statutes offer an important means of reducing the potential exposure to damages in a civil defamation action, online publications may not fall under their umbrella of coverage. The only reported court ruling to date on this issue concluded that a state retraction statute did not apply to a claim for online defamation.

This article reviews the general principles of traditional defamation law and provides an overview of the protections offered by state retraction statutes. Next, it discusses two court opinions that dealt with the application of traditional legal principles to cases involving liability for online publications, and then surveys the current state retraction statutes that apply in civil actions, organizing them into three categories: statutes that ostensibly would apply to defamatory material published by an online newspaper; statutes that do not clearly include or exclude online newspapers and would require judicial interpretation or legislative revision to clarify the issue; and statutes that clearly would not apply to online newspapers.

Defamation & state retraction statutes: General principles

The elements of a cause of action in defamation are generally consistent from state to state. However, the defenses provided by state retraction statutes are not. Defamation generally is a matter of state statutory or common law, or both, with overriding federal constitutional parameters on liability. The elements of defamation in most states track the elements prescribed by the Restatement (Second) of Torts, which is recognized as a general summary of state common law. Defamation under the Restatement requires proof of a false and defamatory statement about someone, an unprivileged publication to another, some degree of fault attributable to the publisher, and harm to the one defamed by the statement.8 The fault requirement takes into consideration a 1974 ruling by the U.S. Supreme Court in Gertz v. Robert Welch, Inc.9 In that case, the Supreme Court held that the First and Fourteenth Amendments prohibit liability for defamation without a finding of fault to some degree.