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Wednesday, November 18, 2009

Yes, Virginia, There is Law in Cyberspace

One annoying feature of Internet law is "Internet exceptionalism" -- the assumption that everything must be different if it's on the Internet.  For example, as CNN reports, Courtney Love is being sued for sending a defamatory tweet out on Twitter (she accused a clothing designer of being a drug dealer). CNN claims that the suit confronts "new and unaddressed areas of American law."

Hardly.  Look, there have always been lots of different ways of spreading defamatory messages.  The Marquess of Queensbury left his calling card with a porter for delivery to Oscar Wilde, and wrote on the card, "To Oscar Wilde posing as a somdomite [sic]."  Because the Marquess wrote this allegation down, because the porter saw it, it was a public libel.  The law deals with such things.

The Internet is exciting and new, but there is nothing "new and unaddressed" about the notion of being responsible for written defamatory statements.  The statements can be in books, newspapers, letters, on calling cards, or, yes, on the Internet.  Accusing someone of commiting a crime is libel per se.  "I only did it on the Internet" is no defense.  Let's stop imagining that everything must be different in cyberspace.

Posted by Jonathan Siegel on November 18, 2009 at 12:56 PM | Permalink


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Actually, my understanding of the phrase as it is used in the paper is that the proposed category of law is not useful/helpful. The point made in Easterbrook's paper is that we do not teach "law of the horse" in law schools because, though it may or may not have some nuance, it is much better understood in the context of broader areas of law like contract, property, and tort. I believe the Bruce's use is apt.

Posted by: Richard | Dec 2, 2009 8:10:42 PM

"Law of the horse." In the immortal words of The Princess Bride: You keep using that [phrase]; I do not think it means what you think it means.

Courtney Love's tweet appears to be less 'the law of the horse' and more 'the law of libel.'

If I remember correctly, 'law of the horse' is code-word for sui generis law. The paper from which the phrase comes was about how there is specific, specialized, and niche law for the buying and selling of horses that is its own body of law.

Courtney Love's libel and defamation problems are well-settled by U.S. law. I agree with Mr. Siegel that there does not appear to be anything different. The internet doesn't make everything magically different.

Posted by: John | Nov 19, 2009 7:26:21 AM

I make the same arguments in class with "The Victorian Internet" - discussing the first wedding by telegraph...

Posted by: Michael Risch | Nov 18, 2009 3:32:36 PM

This is one of the key themes of my Internet Law class--in situation X, does the fact that the Internet is involved actually change anything? Or is it (following Frank Easterbrook) just "Law of the Horse"?

Courtney Love's tweet seems mostly to be Law of the Horse; there's nothing about the facts of this particular case that are terribly novel. But there's one twist, which is whether the systemic effects of sharing information via social networking services should be taken into account somehow. I.e. is there more widespread availability of comments that previously would have gone unlitigated, and if so, should the law be adapted in some way in response? (And which way? Maybe it's an increased problem, and therefore requires stricter enforcement.) There's some hint of this in Doe v. Cahill when the court suggests that no one takes blog comments very seriously, in contrast to other forms of widely dispersed writings, which may be true of Twitter tweets as well.

Posted by: Bruce Boyden | Nov 18, 2009 1:29:05 PM

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