Close observers of Internet libel anxiously await further proceedings in the case of Blumenthal v. Drudge, ___ F. Supp. 2d ___ (D.D.C. ___). The case has been mired for two years in acrimonious discovery battles across a federal courtroom. In his prior ruling on procedural matters in late 1999, Judge Paul Friedman chastised the attorneys on both sides for engaging persistently in "that kind of conduct that gives the legal profession a bad name." It will be up to a federal appeals court to decide a number of vital issues, such as the status of America Online (now AOL Time Warner) as a defendant. AOL had been reluctantly dismissed by Judge Friedman under the immunity that Section 230 of the Communications Decency Act confers on Internet service providers.

    Also under review will be the status of Matt Drudge as the other defendant. Judge Friedman had kept Drudge in the case, despite his California residence, because of legally adequate "contacts" with the District of Columbia that included the interactivity of his online Drudge Report. The applicability of the New York Times libel privilege to public figure plaintiffs will also get its first real test when this case reaches the U.S. Court of Appeals for the District of Columbia Circuit.

    Meanwhile, there have been a few other skirmishes on the digital defamation front. The ill-starred CNN broadcast about the 1970 "Operation Tailwind" generated massive litigation, much of it now mercifully settled. One tag end of the saga was a federal court libel suit brought by Robert Van Buskirk, the alleged principal source of accusations that were crucial to the "Tailwind" account of military events in Laos. The relevant libel suit claimed that one John Plaster had written a letter charging that Van Buskirk was the major catalyst for the expose. The letter was first published on an Internet site hosted by the Special Operations Association (SOA). Later it appeared as an op-ed piece in the New York Times, still naming Van Buskirk as the principal source for the story.

    The crucial libel claims were not filed until 18 months after the letter was posted on the SOA Web site. New York law imposes a one-year limit on the filing of defamation suits. However, Van Buskirk argued that the letter had been "republished" every day it appeared on the Internet, thus reviving the limitations period.

    To print media, New York courts have long applied a "single publication rule," holding that the statute of limitations runs from the first publication of offending material in any form and does not begin again when the statement appears in a different medium. Van Buskirk claimed that digital defamation should be subjected to a different standard, which he hoped would make his claim timely. This novel issue had actually been addressed a few months earlier by a New York state court. In Firth v. New York, 706 N.Y.S.2d 835 (Ct. Cl. 2000), a trial judge had rejected just such a claim, adding that he saw "no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means."

    The federal court now ruled that Van Buskirk’s attempt to extend the limitations period was similarly flawed. "The purpose of the single publication rule supports applying it to Internet publication," the judge observed. The rule had evolved through, and clearly applied to, other "modern methods" of communication. "Now that Internet publication has been added to the ‘modern methods’ of widespread publication, Internet publishers also should receive the single publication rule’s protection."

    No more persuasive was Van Buskirk’s claim that Internet publishers are different since digital material may be withdrawn at any time. He argued that Internet publishers (unlike print publishers) make "a conscious decision every minute of every day" not to remove material. The New York courts had consistently applied the single publication rule, recognizing that harmful statements in other media could be removed from circulation, but legally to no avail.

    A very different Internet libel case caused quite a stir in Seattle earlier in 2000. ZiaSun Technologies filed suit in federal court against eight persons who had posted highly critical messages about the company in the Silicon Investor chat room. These messages, claimed company officials, were part of a "cyber smear campaign" to discredit its standing with investors who follow technology shares. The suit included claims for defamation, violations of Washington State consumer laws, racketeering act violations, and interference with business prospects.

    ZiaSun chose a court in Washington because the chat room is based in Seattle. But Judge Marsha Pachman dismissed the suit, finding insufficient Washington contacts to sustain venue despite the location of the chat room operator. She noted that the plaintiff was a California company and that the "ZiaSun Eight," as they had become known, lived all over the country -- the most vociferous of the critics being a New Jersey resident. The suit was to be refiled, probably in California.

    One closely related legal development bears note. Stock promoter Bryant Cragun, an active ZiaSun backer, persuaded a California judge to issue an order that barred Floyd Schneider (leader of the ZiaSun Eight) from referring on his Web site to Cragun as "dishonest, disreputable, or criminal." The order also required Schneider to post a retraction on his Web site of a "sell" recommendation he had made with respect to ZiaSun stock. Schneider did not contest or appeal the order, noting at the time that he could not afford a lawyer.

    The volume of Internet libel litigation has been substantially less than observers would have anticipated four or five years ago. Several factors may explain the paucity of new cases. Since Internet service providers would have seemed the likeliest targets, the Section 230 immunity conferred on ISPs (for material posted by anyone else) may well have discouraged lawsuits, since other prospective defendants would be less promising prospects for substantial recovery. The pendency of the Blumenthal-Drudge case, and its many unresolved issues, may also have reduced interest in plowing new digital defamation ground. Finally, given the elusive nature of the harm inflicted by most statements posted on the Internet, such litigation may, for many victims of online libel, simply not seem worth the time and expense.