Questions About Libel Claims Online: Can Livegreen974 be held to the same standards?

[Siwar Bandar]

The hostile media theory posits that partisans perceive the media as hostile to their point of view despite the inference of neutral parties that the same coverage is unbiased. This paradigm precludes that the distinction between opinions, protected by the first amendment, and true libel must be clear. Scott M.Cutlip, Allen H. Center and Glen M. Broom (2006) define libel as a legal action meant to compensate someone who has suffered defamation or whose reputation has been wrongly damaged. Also important to consider is the status of the plaintiff (public figure vs. private individual) and the intent or negligence of the defendant. The Supreme Court in Gertz v. Robert Welch Inc. (1974) established a precedent excluding subjective opinions from libel claims; however, later cases held that qualifying false facts as opinions does not shield them from liability.

This definition however grows in complexity when one considers the new and unresolved questions posed by the rise of the Internet regarding libel. Should claims made online be held to the same rigorous legal standards as print journalism? How do we treat statements made on less formal online forums such as message boards, social networking sites and emails - where users are not claiming expertise? The rise of Wikipedia has also presented interesting legal conundrums, after all who can plaintiffs actually sue since entries represent the collective memory/knowledge of an entire online community?

Pro-Palestinian and pro-Israeli groups have long argued against the other side’s misrepresentation of facts and for their own misunderstood positions. These articles, and by extension accusations, run especially rampant in college campuses across the US. It is interesting to note that college publications – print and online - may vary in their legal obligations when compared to larger media corporations. While there are some free press limitations on secondary school papers which are considered the private property of the school, the law remains ambiguous on the status of college newspapers. Perhaps because of this ambiguity, even the most established and reputable publications like George Washington University’s The Hatchet and UCLA’s The Bruin, have found themselves publishing potentially inaccurate and libelous facts.

In his 2006 editorial “Unmask Terrorism” to The Hatchet, Robert Fishman, states that he did indeed forwarded an email to the Hillel listserv asking the campus group to appose the divestment campaign being sponsored by the Students for Justice in Palestine. An absolutely legitimate action, only the email, according to Fishman’s own editorial, also included an unfortunate characterization of Fadi Kiblawi, a law student and activist at GWU. According to the Associated Press Stylebook, this correction, though indirect, still carries legal consequences because it formally acknowledges the error (p. 368). As background, the email claimed that Kiblawi was considered a terrorist by the state of Israel and that he led chants of death to Jews during an event at the University of Michigan. The latter fact was refuted by Michigan College Dean Ed Willis who attended the event. Additionally, the only interaction Kiblawi has had with the Israeli officials was during his brief detainment and subsequent release following a peaceful rally to protest the uprooting of olive trees on Palestinian territories.

The identification of Kiblawi as a terrorist is extremely troublesome given the post 9-11 climate. While the debate surrounding divestment, Israeli foreign policy and the Palestinian territories should continue unbridled, characterizations of terrorism trespass opinion boundaries and injure Kiblawi’s good (or bad – depending what side you are on) name. In fact, the activist, in an editorial preceding Fishman’s entitled “I Will not be Silenced,” threatened to pursue legal action if Fishman did not renounce his claims and apologize. Fishman’s article does indeed admit that the characterizations were unfortunate, but critically does not address issues of their authenticity.

The bulk of Fishman’s article is based on subjective opinion, and hence exempt from libel claims. For example, Fishman says that supporting divestment is an extremist position, and a one state solution effectively denies Israel’s right to exist. Despite the visceral reactions that these statements may invoke in the apposing activist community, they are protected as subjective opinions because they can not be proven as false unless the divestment campaign and a one state solution are actually implemented.

Both Fishman and Kiblawi are public activists. The Supreme Court in Gerz v. Welch defines public figures as anyone who brings attention to themselves by voluntarily exposing themselves to criticism. It would be interesting to consider if well-known student activists fit that category, and therefore have the burden of proving malice as apposed to negligence.

Ultimately, this case did not progress beyond campus activism. However, the email about Kiblawi represents an interesting glimpse into some yet uncharted territories regarding libel in the online universe.

[JP]

This is just another wrench thrown into the framework of free speech. Proving online libel and making a legitimate case is tough, but not impossible. However, if every person sued the other for difference in opinion, our court system would be more tied up than it already is. It comes down to proving an argument. If there's no proof, you're asking for trouble.
The process should be just as rigorous as it is in journalism because no matter how much "freedom" we think we have on the internet, what we post is public-and when the public is involved, so is public interest- and thus, government. With online libel, there's no telling whether a company is looking to intimidate consumers from having an opinion or allowing someone to destroy another person's reputation online. Online bullying and online libel cases have been handled in civil courts, but usually when the person committing the act is identifiable. The problem then becomes the anonymous bloggers who libel and how their identities aren't always legally obtainable.