The Existing Duty Not to Continue Displaying Posts on Physical Property—an Analog to a Similar Duty as to Online Posts

(For the full draft PDF, with footnotes, see here.)

A duty not to keep hosting material that you’ve learned is defamatory is thus a good idea, and is constitutional [for reasons given below]. It could certainly be instituted by statute.

But I think courts can also sensibly develop it under normal libel law principles; indeed, Restatement (Second) of Torts § 577 already points in this direction:

(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.

(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.

Subsection (1) sets forth the general way that people can be liable for defamation: by communicating it. And that includes continuing to communicate it after one learns that the material is false.

Say a publisher prints some number of copies of a yellow pages phone book, without realizing that there is a defamatory error in one of the ads; but then the publisher keeps distributing the phone book even after it learns that the ad is defamatory. Such “continuation of distribution after the error had been brough to the attention” of defendants may well be actionable “communication … by a negligent act.” “[A]llowing additional distribution of the yellow pages directories” is a continued communication which may itself be libelous. And that logic would apply to continued distribution online as much as to continued distribution of paper copies.

Subsection (2) also makes clear that one way of actionably communicating defamation is by knowingly retaining it on one’s property. This doesn’t hold a property owner strictly liable simply because someone posted something on the property, nor does it impose a duty to monitor property for such postings.[1] But once someone informs a property owner that there is defamatory material posted on its property, the owner must take reasonable steps to take down the material. And this applies to material on “chattels,” such as computer equipment, and not just “land.” In the words of one district court,

[E]ven assuming that the Gazette acted completely reasonably in publishing the AP article on its website, it is clear that at some point the Gazette learned of both the article’s presence on its website and the article’s inaccuracies. It is due to this that the Court cannot in good conscience find that the wire service defense [which would have immunized Gazette‘s original publication of the AP article] provides a complete defense for the Defendant. Cf., Restatement (Second) of Torts § 577(2) (stating that “one who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication”).[2]

Now the classic examples of this § 577(2) liability have involved property owners liable for failing to remove third-party posts on their property—for instance, when a married woman sued a bar for not removing graffiti that suggested that she was interested in sex with strangers,[3] or when a factory failed to remove a posted leaflet that defamed an employee to his coworkers.[4] There likely wouldn’t be liability today for such third-party posts on a person’s web site, because of 47 U.S.C. § 230, which immunizes such sites from liability for third-party posts generally.

But the text of § 577(2) would also apply to liability for intentionally and unreasonably failing to remove one’s own defamatory posts (which aren’t immunized by § 230). And its logic would as well.

Say that both Earl and Donna post signs on Donna’s property accusing Paul of something. And say that Donna reasonably believe that her own accusation is true (and state law declines to impose strict liability). Donna is then not initially liable for either posting. But once Donna learns about Earl’s accusation and learns that it’s false, she can be held liable for it under § 577(2). There’s no reason why she should be less liable for her own accusation once she likewise learns that it’s false.

Why the Duty is Constitutional

A duty to stop hosting articles on one’s site once one learns that they are false and defamatory is [also] consistent with the First Amendment. “[T]he lie, knowingly and deliberately published” is constitutionally unprotect­ed.[5] It follows that falsehood knowingly and deliberately maintained in one’s online publication should be equally constitutionally unprotected.

As noted above, the duty does impose some burden on publishers, and might create something of a chilling effect. When publishers get correction demands, which claim that a statement is defamatory, they would have to investigate whether the demands are well-founded. And if there’s some uncertainty, then the publishers might be reluctant to stand by a story, even if they are still confident in the story, for fear that jurors will rule against them and conclude that they were reckless.

But, returning to the example with Ophelia and Randy, that’s precisely the situation Ophelia’s newspaper faced when Starlight got the exculpatory information to Ophelia in time, before Ophelia’s story was published. There too the newspaper might have been uncertain, and might have been chilled from running the story despite the mens rea protections that the First Amendment provides.

That was enough for Justices Black, Douglas, and Goldberg to argue in New York Times Co. v. Sullivan that libel law should be absolutely rejected, at least as to matters of public concern. Yet the majority disagreed, and concluded that the “actual malice” standard protected publishers enough, despite the residual chilling effect. Likewise, the Gertz v. Robert Welch Inc. majority concluded ten years later that the negligence standard sufficed for proven compensatory damages based on speech about private figures. If that’s true for lawsuits based on prepublication decisions to publish (as in the lawsuit against Ophelia’s newspaper), it should be equally true for lawsuits based on postpublication decisions to keep distributing a published story (as in the lawsuit against Randy’s newspaper).

A duty to stop distributing libelous material might be limited in one important way: Once a libelous statement is published, totally removing it might hide important facts about its having been published. Say, for instance, that Donna’s story accused Paul of some crime. This could well have led to controversy, with people publicly criticizing Donna and her publisher for what she wrote; if Paul then sued, there would have been stories about the lawsuit.

Totally removing Paul’s name from the original story might make it harder for future researchers to fully understand those follow-up criticisms and news accounts. In a sense, there now would be “constitutional value in [the] false statements of fact” in the original story, because their having been said is itself an important fact. (This is indeed one basis for the neutral reportage privilege, under which some states allow speakers to report on allegations, even false ones, when the allegations are an important part of public debate.)

Because of this, a publisher should be free not to remove the libelous statement but instead to correct it, by adding a prominent note—preferably at the start of the story—reflecting the newly discovered information. Indeed, standard libel principles would already allow this, since reasonable readers would then no longer interpret the story as making the original (now-corrected) accusation. But in any event it should be constitutional for the law to impose liability if no such correction is made, and the publisher leaves up the unaltered defamatory even after it learns that the story is false.

 

[1] “[T]he duty arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels, and he is under no duty to police them or to make inquiry as to whether such a use is being made.” Restatement (Second) of Torts § 577 cmt. p.

[2] Taub v. McClatchy Newspapers, Inc., 504 F. Supp. 2d 74, 80 (D.S.C. 2007); see also Cornelius v. Deluca, No. 1:10-CV-027-BLW, 2010 WL 4923030, *3–*4 (D. Idaho Nov. 29, 2010) (suggesting that defendant could be held liable for keeping up a post once it learns that its agent had posted a defamatory item and “unreasonably failed to take steps to remove it”), modified on reconsideration as to other matters, 2011 WL 977054 (D. Idaho Mar. 15, 2011); Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (suggesting that a web site operator could be liable for failing to remove libelous material, though concluding that in that case the defendant was immune under 47 U.S.C. § 230, given that the material was posted by a third party).

[3] Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952); see also Tidmore v. Mills, 32 So. 2d 769, 777–78 (Ala. Ct. App. 1947); Woodling v. Knickerbocker, 17 N.W. 387, 388 (Minn. 1883). But see Scott v. Hull, 259 N.E.2d 160 (Ohio Ct. App. 1970) (rejecting liability in a similar situation).

[4] See, e.g., Tacket v. General Motors Corp., 836 F.2d 1042, 1045 (7th Cir. 1987); see also Dillon v. Waller, No. 95APE05-622, 1995 WL 765224 (Ohio Ct. App. Dec. 26, 1995); Kenney v. Wal-Mart Stores, Inc., No. WD 59936, 2002 WL 1991158, *12 (Mo. Ct. App. Aug. 30, 2002), rev’d on other grounds, 100 S.W.3d 809 (Mo. 2003).

[5] Garrison v. Louisiana, 379 U.S. 64, 75 (1964).