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Court: Online Scribes Protected
By Mark K. Anderson
2:00 a.m. Dec. 11, 2001 PST
Online journalism is the same as print, radio and TV news when it
comes to free-press protections against charges of libel.
That's the decision of the New York State Supreme Court in the widely
watched case of the National Bank of Mexico against Narconews.com.
The court ruled that online journalists reporting on matters of
public importance, like their colleagues in other media, can only be
found guilty of libel if their actions are deemed malicious.
See also:
Net Reporting at Stake
Does Mexican Suit Fit In N.Y.?
A Case of Free Speech Boundaries
Everybody's got issues in Politics
This "higher standard" for defamation cases was codified in the landmark 1964 U.S.
Supreme Court case New York Times v. Sullivan. It, of course, did not deal with
Internet journalism.
The present case, said Charles Nesson of Harvard Law School's Berkman Center for
Internet and Society, is essentially "New York Times v. Sullivan for the Internet."
The Bank of Mexico -- also known as Banamex, now part of Citigroup -- initiated its
lawsuit against the drug-war investigative reporting website in New York state court
last year, when Narconews published reports linking
Banamex's then-president with narcotics trafficking. Banamex charged these allegations
were false and libelous.
In its decision, the New York Supreme Court threw the case out before it came to trial
-- specifically because it found Banamex could not meet those higher standards.
"This court finds that Narconews is a media defendant and is entitled to heightened
protection under the First Amendment," wrote New York Supreme Court Justice Paula
Omansky, citing New York Times v. Sullivan.
"The nature of the articles printed on the website and Mr. Giordano's statements at
Columbia University constitute matters of public concern because the information
disseminated relates to the drug trade and its effect on
people living in this hemisphere," she wrote.
In July, Banamex and Narconews argued their sides in a hearing to determine whether
the New York court system has jurisdiction over a Mexican bank suing Mexico-based
journalists.
Marcy J. Gordon, who represented the Electronic Frontier Foundation in a
friend-of-the-court brief on the case, said the 30-page decision has the potential to
be widely applicable beyond the Banamex v. Narconews scuffle.
"I wouldn't be surprised if this turns out to be a landmark case that gets cited
repeatedly," she said.
Cindy Cohn, EFF's legal director, seconded Gordon's optimism. "We are
tickled that the court heeded our advice, which was to make sure that
you treat online journalists with the same degree of First Amendment
protections against libel actions as offline journalists -- and not
to create a First Amendment ghetto on the Internet," Cohn said.
When asked if Banamex would appeal the case, Michael Madigan, one of
the bank's lawyers, indicated they had not yet even received a copy
of the judge's ruling. "We have not had an opportunity to study the
decision," he said. "But Banamex will continue to protect itself from
false and malicious statements."
Al Giordano, the publisher and editor of Narconews, said that the
decision should embolden Internet journalists who take on powerful,
entrenched interests.
"The case law that comes out of Judge Omansky's decision is a miracle
for online news sites like my own and online journalists like
myself," he said in an e-mail interview on Sunday. "It establishes
that an online news provider now has the same rights as The New York
Times or any other newspaper or magazine in the eyes of the law."
Facing an operation with extremely deep pockets, Giordano established
a legal defense fund last year and held several benefit events in New
York to help defray his costs. Both he and his co-defendant, Mario
Menendez of the Mexican daily newspaper Por Esto, enlisted the
counsel of noted First Amendment lawyers Tom Lesser and Martin
Garbus, who cut their rates to work on this case.
Lesser noted that he was especially pleased that the judge did not
wait until a later phase of the trial to discuss the core libel
issues in the case.
"It would be easy to write a decision saying, 'We'll look at this
later,'" Lesser said. "But she said, 'No, the complaints are before
me. I can look at it right now.'
"She understood that allowing a case like this to continue chills
First Amendment rights. These are very expensive cases, so she nipped
this one right in the bud."
Said Nesson, "I think the most significant aspect is the overall
result, not necessarily any particular piece of the logic that got
the court there," he said.
"The court overall basically shows a great attentiveness to the idea
that just because somebody shows up in a jurisdiction, that doesn't
mean they can get hit for stuff that in fact really relates to
something that happened a long way away."
Related Wired Links:
Net Reporting at Stake
July 23, 2001
Does Mexican Suit Fit In N.Y.?
June 25, 2001
A Case of Free Speech Boundaries
May 8, 2001
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