Context important for Internet libel cases, court says

Emily Peterson | Libel | Feature | May 23, 2011

A New York appellate court ruled on Thursday that courts need to consider the “freewheeling, anything-goes” writing style that prevails on the Internet when evaluating Internet communications for libel.

The New York Supreme Court Appellate Division in New York City held, in Sandals Resorts v. Google, that Google does not have to release email account information for an account holder who widely distributed anonymous email messages criticizing Sandals, an operator of luxury, all-inclusive Caribbean resorts.

The email messages implied that Sandals uses racist hiring policies that discriminate against local Jamaicans by giving them service jobs at the resort while saving high-paying executive jobs for foreigners while the Jamaican government “is subsidizing the tourist [empire] with the taxes of poverty-stricken Jamaicans who are drinking cornmeal porridge for Sunday dinner!”

In New York, a cause of action for libel can only exist when the statements are based on assertions of fact rather than assertions of opinion, the court said. One factor used to determine whether the statements are protected opinion is what the “broader context of communication” signals to the reader.

“The e-mail at issue here, which questions not so much Sandals’ conduct with regard to race as its use of Jamaican labor pool, bears some similarity to the type of handbills and pamphlets whose anonymity is protected when their publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences such as economic or official retaliation,” the court said. “Indeed, the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.”

The court's opinion “bends over backwards to place the email in the context of the kind of communication,” said Lee Tien, a senior staff attorney with the Electronic Frontier Foundation, a San Francisco-based non-profit that advocates for civil liberties in the digital age. The court isn’t “treating this as something that is very different than the casual email that people send every day, indeed it is very much like water-cooler conversation.”

The court observed that readers usually give less credence to “allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” This applies to remarks posted on message boards and chat rooms, as well as blogs and the widely distributed email messages at issue in this case.

The decision is “important in terms of preserving free speech and not allowing defamation to chill people,” Tien said. “It’s important for courts to not hold every member of the public who is communicating his or her ideas to the same standard as that of a professional journalist.”