Posted by Eugene Volokh:
North Carolina Senate Bill Would Extend Criminal Libel to Online Communications:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235515137
North Carolina law now bans [1]"Communicating libelous matter to
newspapers":
If any person shall state, deliver or transmit by any means
whatever, to the manager, editor, publisher or reporter of any
newspaper or periodical for publication therein any false and
libelous statement concerning any person or corporation, and
thereby secure the publication of the same, he shall be guilty of a
Class 2 misdemeanor.
A new proposal, [2]Senate Bill 46, would extend this to electronic
communications as well, though nonanonymous electronic communications
would be punishable only if an apology is demanded but not promptly
punished:
§ 14�47.1. Communicating libelous or slanderous material through
an electronic medium.
(a) Definition. � The following definitions apply to this section:
(1) Communicate. � The term includes publishing, speaking,
uttering, or conveying by words, acts, or in any other manner of a
libel or slander.
(2) Electronic medium. � The Internet and any computerized or
electronic information service. The term includes a bulletin board,
a network, an online service, electronic mail, a forum, a blog, or
a news group.
(b) Offense. � It is unlawful for any person to communicate by
transmission through an electronic medium any false, defamatory
statement that is libelous or slanderous.
(c) Penalty. � A person convicted of an offense under this section
is guilty of a Class 2 misdemeanor.
(d) Jurisdiction. � The offense is committed in the State for
purposes of determining jurisdiction, if the transmission that
constitutes the offense either originates in the State or is
received or viewed in the State.
§ 99�10. Libel and slander transmitted through an electronic
medium.
(a) Definition. � The following definitions apply to this section:
(1) Communicate or communication. � The terms include the
publication, speaking, utterance, or conveyance by words, acts, or
any other manner of a libel or slander.
(2) Electronic medium. � The Internet and any computerized or
electronic information service. The term includes a bulletin board,
a network, an online service, electronic mail, a forum, a blog, or
a news group.
(b) Request for Apology and Correction Required Before Bringing
Civil or Criminal Action. � Before any action, either civil or
criminal, is brought for transmitting a communication of any
libelous or slanderous material through any electronic medium, the
plaintiff or prosecutor shall first give the person alleged to be
responsible for communicating the libelous or slanderous material
at least five days to correct the libelous or slanderous material.
The plaintiff or prosecutor shall request that the person alleged
to be responsible for communicating the libelous or slanderous
material post an apology and correct the material as provided by
subsection (c) of this section. A request may be made by mailing or
delivering a written request to the person alleged to be
responsible for communicating the libelous or slanderous material
or by placing the request at one of the locations in the electronic
medium known to the plaintiff or prosecutor where the libelous or
slanderous material was placed.
(c) Apology and Correction of Libelous or Slanderous Material. � To
correct the libelous or slanderous material, the person alleged to
be responsible for communicating the libelous or slanderous
material shall, within 10 days after receiving the request as
provided by subsection (b) of this section, place an apology and
correction in the same location in the electronic medium as the
libelous or slanderous material was placed. The person alleged to
be responsible for communicating the libelous or slanderous
material shall maintain the apology and correction at that location
for a period similar to the time that the libelous or slanderous
material was at that location, to the extent that the person can
control the location and period of that placement.
(d) Effect of Communication in Good Faith and Retraction. � If at
trial it appears that the material was communicated in good faith,
that the falsity of the material was due to an honest mistake of
the facts, that the material was communicated without prior
knowledge or approval of the person who administers the facilities
for the electronic medium or, if with prior knowledge or approval,
that there were reasonable grounds for believing that the
communications were true, and that within 10 days after the request
for an apology and correction a full and fair correction, apology,
and retraction were added to the proper location in the electronic
medium in a position and type as prominent as the alleged libelous
or slanderous material, then:
(1) If the action is a civil action, the plaintiff shall recover
only actual damages.
(2) If the action is a criminal proceeding on which a verdict of
guilty is rendered, then notwithstanding G.S. 15A�1340.23, the
defendant shall be fined a penny and costs, and no more.
(e) Negligence in Permitting Defamatory Communications by Others
Essential to Liability of Person Administering Electronic Medium. �
The person who administers or provides facilities for the
electronic medium involved in the alleged libel or slander shall
not be held liable for the alleged libel or slander unless the
person is guilty of negligence either in allowing the material to
be placed in the electronic medium or in allowing the material to
remain in the electronic medium after the person became aware that
the material was false and defamatory.
(f) This section shall not apply to anonymous communications.
I don't support criminal libel laws, but I should note that the
Supreme Court has never held that they are unconstitutional, and the
Court's precedents suggest that criminal punishment of libel -- like
criminal punishment of obscenity, incitement, and other unprotected
categories of speech -- is constitutional, so long as the government
proves, beyond a reasonable doubt, that (1) the statement was a false
factual assertion, and (2) that the defendant knew it was false, or
was reckless about whether it was false, with recklessness being
defined as subjectively knowing that there was a grave chance it was
false. (This at least would be the rule for statements on matters of
public concern.)
The Court's most recent decision about this, [3]Garrison v. Louisiana
(1964), basically required this sort of proof, but did not go further
and suggest that all criminal libel laws are per se impermissible.
Criminal libel prosecutions these days are very rare, but [4]not
unheard of.
Is the proposed law consistent with the First Amendment rule I set out
above, and in particular with the knowledge/recklessness of falsehood
prong? On the one hand, "libel" could well be read to incorporate the
constitutional definition of the term. On the other, § 99�10(d)
expressly contemplates punishment even for good-faith mistakes --
facially nominal punishment, but one that presumably would go on one's
criminal record as a misdemeanor. I suspect that courts would try to
save as much of the statute as possible by throwing out the provisions
that authorize punishment for good faith mistakes but reading the rest
as limited to the knowingly/recklessly false statements.
The negligence-based intermediary liability in § 99�10(e) would not
be permissible, however, because it would likely be preempted by [5]47
U.S.C. � 230. (Also, in criminal cases involving speech on matters of
public concern, such liability would be unconstitutional when based
only on negligence.)
This [6]News & Observer blog asserts that the sponsor said "that he
intended the bill to focus on civil cases and not criminal law. He
said the inclusion of criminal penalties was 'an oversight.'" That's
an odd oversight, given the text quoted above.
Thanks to Eric David for the pointer.
References
1.
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-47.html
2. http://www.ncga.state.nc.us/Sessions/2009/Bills/Senate/HTML/S46v1.html
3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=379&invol=64
4.
http://www.medialaw.org/Template.cfm?Section=News&Template=/ContentManagement/ContentDisplay.cfm&ContentID=699
5. http://www4.law.cornell.edu/uscode/47/230.html
6.
http://projects.newsobserver.com/under_the_dome/bill_targets_libel_on_blogs
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