Reputation, Defamation and New Media

Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media

The question discussed in this essay is the challenges to today’s legal system derived from the uses of new media with regard to the issue of “reputation”. New media, in contrast to the traditional media, in this essay refers to the forms of electronic communication based on the use of computer technology, most typically the Internet. Doubtlessly, the rise of new media and digital communication technologies in the past decades has brought a wide range of challenges to modern society, since the online information publication could be fast, anonymous, global and even uncontrollable. As a matter of fact, the surge of new media, such as the Internet, has become a huge potential threat to a person’s reputation in contemporary society.

The definition of Reputation (Merriam-Webster Dictionary) is the overall quality or character as seen or judged by people in general; or a place in public esteems or regard (good name). On the other hand, Defamation is communication about a person that tends to hurt the person's reputation. In today’s new media era, a person’s online reputation is highly connected with and has large influence on the person’s reputation in real world. As Cory J. asserted in Hill v. Scientology case, the reputation of an individual (an organization as well) should to be cherished above all in a democratic society. Firstly, a good reputation is closely related to the innate worthiness and dignity of the individual. Secondly, reputation is the fundamental foundation on which people are able to interact with each other in social environment. Thirdly, it serves the important purpose of fostering a person’s self-image and sense of self-worth. Finally, it is intimately related to a person’s right of privacy. For these reasons, a person’s reputation must be protected by law, i.e. the common law of defamation.

On the other hand, when we talk about reputation and the challenges brought by new media, we should not ignore what stands on the other side of the issue: the freedom of expression. Among all the cases we read, the Hill v. Church of Scientology of Toronto Case [1995], the Newman et al. v. Halstend et al. Case [2006] and the Crookes v. Wikimedia Foundation Inc. Case [2008] clearly manifest how the whole system of common law aim to strike an appropriate balance between the twin values of reputation and freedom of expression, and how difficult it is to reach a convincing judgment over those issues.

The right of free speech, in other words, the freedom to express ideas and criticize the operation of institution and the conduct of government, is indubitably the cornerstone of a democratic society. However, no freedom is absolute and the freedom a person acquires on expression is also a “freedom governed by law”. The importance of free speech should never be over-emphasized, especially in cyberspace activities. As it is revealed in the cases, with the widely use of contemporary new media technologies, acts like defamation, libel and false allegation can quickly and completely destroy a person’s reputation, both online and in real world, thus such act should be regarded as a serious offence. Besides that, on a broader scope, the issue of reputation is concerned in any lawsuit since the reputation of everyone involved in the case is at stake.

The Crookes v. Wikimedia case is a good example of how the expansion of Internet in society brings unexpected questions to our legal system regarding reputation and defamation, i.e. is it an act of defamation when a website article includes a hyperlink to some defamatory websites. The judgment of such cases indicates a high consideration of the intentions of the article publisher, and whether there is a “publication” of the defamatory words. Based on my understanding, the act of publication can be examined in a rather objective manner while the intention of the publisher is a more subjective issue. In many cases, some extreme, biased or inappropriate expressions in cyberspace could be acceptable and allowed in order to protect freedom of expression and realize public interest, however, such expression may only be one step away to become libel, malice and other illegal act. – In other words, the difficulty and vagueness in keeping the balance between reputation and freedom of expression in today’s legal system is the main challenge brought by new media. As a matter of fact, there is a large “grey area” lies in the protection of these two fundamental human rights, and one can hardly draw a clear line in between.

The challenge of a person’s reputation in today’s web2.0 or even web3.0 area raises questions like the management and regulation of blogs, online chat rooms, bulletin boards and other public space for free expression, which is a challenge faced by the legal system globally. Take China’s “online mob” phenomenon for example, which refers to when some Internet users publish an individual or organization’s scandals (i.e. a husband having an affair with someone else, or some companies doing backstage deals in the market) on the Internet, hundreds of thousands of anonymous Internet users start to join in the publication and “attack” the person involved. They simply use their keyboards and mouse as weapons and in most of the time, the online mob can successfully find out very detailed personal information of the ones involved in the scandals (i.e. name, job, address, phone number, date of birth, family and even pictures). Plus, they also publish numerous threatening and humiliating words to the individual. As a result, the person being attacked turned out to be hurt both mentally and physically, some of them move to another city or even commit suicide under huge pressure.

Obviously, the online mob phenomenon in China has emerged as a growingly strong power in society and has large influence on people’s real life. As a kind of dangerous crowd behavior, it indeed leads to an invisible but alarming violence. Though government starts to pay more attention to online expression regulation, it seems impossible to curb the emergence of such activity. From my perspective, it is unquestionable that Internet should be free and the online freedom of expression should be protected. Such is especially important for a rapidly transforming country like China, and it will definitely help to build a more open, fair and democratic society. However, all these online public space: blogs, chat rooms, bulletin boards and so forth are just a platform for information communication based on new technologies, not a court. Though netizens have the right to express their ideas and opinions, they should not go across the line. Furthermore, numerous historical and current events have proved that the moral standard of the public (the Internet users in this case) is not always trustworthy, and crowd behavior in most of the time turned out to be irrational activities with miserable endings.

From my perspective, the protection of reputation in new media era is both a legal and moral issue. In many cases, defamation exists, damages are made, but no one could be identified to take responsibility since the online identity is fake and anonymous. Policies and laws should be further developed to have a better protection over every social member’s privacy and other interests. However, when present state of technology and legal system cannot promise a whole protection, we have to go to morality and rise the moral standard of Internet users by means of education, mass media, community and so forth. The guideline is the minority who are hurting others should be prevented but the majority’s freedom of expression should not be disturbed.

To sum up, compared with traditional media, new media such as the Internet provides a more rapid, interactive and unrestricted measure in communicating all kinds of information nation-wide and internationally. It is a technology we should take advantage of, but also necessitates a rigorous and systematic regulation over its uses. Law and legislation always develop with the pace of the times and they exist as a measure to balance all kinds of power and interest in society, including personal, public and national. The widely use of new media today questions how to fulfill the vacuum in legal system concerning the issue of reputation and defamation, and the ever-changing legislative and juridical framework of contemporary society is again in a transition. It reveals the development of our society and the development of human civilization; it also indicates the concerns and protection of human rights. The final goal of such transition is to enable all users of the new media to enjoy their own rights and freedom in the cyberspace while guarantee their uses do not infringe others’ rights and freedom, which is also the spirit of a civil society.