Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

The internet provides a unique, although increasing less so, venue for a person to express an opinion or share information that is potentially hurtful to others. As this format becomes commonplace, the challenge of applying law that has been print-bound until recently becomes more urgent. Whether the internet requires new laws or simply a different application of existing laws is a question several articles address in the area of defamation.

In his article Defamatory Internet Speech: A Defense of the Status Quo, Anthony Ciolli responds to Glenn Reynolds's assertion that internet speech--particularly blog speech--should be treated as slander instead of libel in defamation cases. (1) Specifically, the article argues against the reasoning Reynolds uses to support his proposal. Reynolds supposes that internet speech is more like the spoken word than a written publication. Ciolli counters that this view is unfounded and could cause significant harm to those who use and are impacted by the blogosphere. Ciolli proposes maintaining the status quo when it comes to regulating defamatory speech on the internet for several reasons, primarily based on distinctions between journalistic blogs--like Mr. Reynolds's own--and the diary blogs of ordinary people who write with less concern about readership than those who write with the purpose of producing journalism or scholarship. Ciolli concludes that, though there is legitimate criticism for applying defamatory law as it currently stands to internet speech, the status quo has done a good job of balancing free speech with the need to compensate those who have been harmed by false statements, and that it will continue to do so in an online setting.

A second article, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers in Defamation Cases, suggests that there should be a different standard for unmasking anonymous speakers in defamation cases involving political speech on the internet. (2) Although the internet provides an easy outlet for the expression of political views without attaching a name to the opinion, it also provides the means to reveal the identities of those people who have posted comments anonymously. Increasingly, suits are asking courts to reveal those identities in defamation cases. In his note, Ryan Martin looks at the interplay between First Amendment protections of anonymous political speech and the right of the state to restrict potentially harmful communications. The note analyzes the reasoning people have for speaking anonymously on political matters as well as Supreme Court jurisprudence regarding regulation of political speech. Ultimately, the author concludes that courts should apply a higher standard, requiring a showing that the plaintiff can likely prove actual malice at trial, to succeed in a motion to identify anonymous political internet speakers. Otherwise, the overall effect of such suits may be to chill political speech online.

Taking defamation law to the next level, Bettina Chin, in her note Regulating Your Second Life: Defamation in Virtual Worlds, looks at the law in relation to an environment that is exclusively online. (3) "Second Life" is a multi-player/multimedia online role-playing game that has its own self-sustaining economy based on transactions in its virtual community. Real-life music groups have given concerts and legitimate politicians have held interviews. Companies like Nike "sell" clothing and marketers from Toyota have used Second Life as a virtual testing ground for advertising. In her article, the author analyzes some of the legal issues that have arisen in this online world and considers a hypothetical defamation case that would bridge the gap between virtual and real worlds. Her conclusion is that courts should overcome any reluctance to apply real-world defamation law to the virtual-world to provide citizens in the metaverse with the same protections they enjoy in reality.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Richard C. E. Beck, Treble Damages in National Health Service Corps Contracts, Public Policy, and Hawronsky v. Commissioner, 22 AKRON TAX J. 129 (2007).

Jeff Berryman, Accommodating Ethnic and Cultural Factors in Damages for Personal Injury, 40 UBC L. REV. 1 (2007).

Scott S. Evans, Note, Dynamic Incentives: Improving the Safety, Effectivity, and Availability of Medical Products Through Progressively Increasing Damage Caps for Manufacturers, 2007 U. ILL. L. REV. 1069.

John Y. Gotanda. Charting Developments Concerning Punitive Damages: Is the Tide Changing?, 45 COLUM. J. TRANSNAT'L L. 507 (2007).

Julian Gyngell, Winning the Infringement War but Losing the Battle for Damages--A Case Study for Trademark Litigants, 2 J...