A Comment on Private Harmsin the Cyber-World

The Washington Post once had an advertising slogan for its home delivery service that warned "if you don't get it, you don't get it." The play on words was intended to convince nonsubscribers that if they did not get the newspaper every day, they would not know what was going on in the world. As Shawn Bone explains in his excellent Note,1 the Post slogan may well apply in Australia under a different play on words. If the Australians don't get the online version of The Washington Post (or the New York Times or Wall Street Journal for that matter), it may be because their courts don't get the importance of First Amendment principles in circumscribing libel liability to foster free speech and a free press. The online publications may vanish from Australia because of the potentially multiple and unlimited exposure to damages that resulted from Gutnick v. Dow Jones & Co.2 The "if you don't get it, you don't get it" admonition has special meaning for Australians in the post-Gutnick world.Australia is not alone, of course. Much of the rest of the world simply does not "get" our First Amendment free speech and free press protections. The English High Court of Justice recently ruled in agreement with its Australian counterpart, finding that the publication of an Internet posting takes place when it is downloaded, thus reinforcing the potential for multiple libel judgments for one work of authorship.3 France does not "get" our First Amendment, as evidenced by the decision of its courts to hold a website operator liable, in damages and under criminal law, for content posted to the website by a third party over whom the operator has no affiliation or control.4 And certainly countries like Saudi Arabia, China, Singapore, Malaysia, Kenya, and Egypt do not "get" it, where access to content on the Internet is strictly regulated and violations harshly prosecuted.5The United States is alone among nations in having a legal bulwark to protect the expression of ideas. Unpopular ideas, offensive images, and even most mistakes by the press are not only tolerated, but are celebrated as evidence of our free society. Free speech is a bedrock element of the American way of life. Our legal system permits-indeed, encourages-all manner of expression unless it constitutes actionable threats of harm (like screaming "fire" in a crowded theater), obscenity, infringement of intellectual property, or harmful mistakes of fact by or about private persons.When the Supreme Court decided New York Times Co. v. Sullivan6 in 1964, it erected a touchstone for First Amendment law, recognizing in no uncertain terms that a free media is essential to our system of government.7 The Court specified that a public official could not sue a newspaper that had been critical of the official's behavior unless the official could prove either that the newspaper published something it knew was false or that it recklessly disregarded the truth or falsity of what it published.8 This bright-line standard of liability sets the United States apart from the rest of the world. Likewise, our "single publication rule," which allows one cause of action for libel regardless of how many copies were printed and where they were distributed, distinguishes our law.9 Today, we look with astonishment at our common law ancestor, Great Britain, when it engages in open censorship of the press and when libel plaintiffs in the United Kingdom succeed in suing for mere mistakes of fact and nothing more.Three decades after Sullivan, the Internet revolution began. The ability of individuals to publish text and images effortlessly at their desktops and across the globe resulted in an explosion of information, entertainment, and communication accessible by millions. It also resulted in the publication and easy accessibility of unpopular messages and unseemly images. To put it more directly, kids gained access to pornography.The immediate political response to this phenomenon was for Congress to enact the sweeping Communications Decency Act of 1995 (CDA),10 designed to protect the nation's children. …