Daniel J. Solove: The Slow Demise of Defamation and the Privacy Torts

The ABA Journal reports that the number of libel suits has been steadily dropping in the United States:

During his 30 years as a lawyer for the New York Times Co., George Freeman says, the "Gray Lady" faced four to five new libel suits per year, on average, and has had maybe eight pending against it at any one time. But that's all changed.

Currently the New York Times is facing no libel suits, and the parent company faces just one in the U.S. "There's been a fairly steep decline" in the last few years, he says. "The real question is whether it's cyclical, as sometimes happens, although never quite to this degree, or whether there are other factors at play."

The Times is definitely not alone, and the trend appears to have rolled out over two or three decades--not years--according to research from the Media Law Resource Center. The number of trials of libel, privacy and related claims against the media fell from 266 in the '80s to 192 in the '90s to 124 in the 2000s. In 2009, only nine such trials were held.

Why is this happening? Is it because there's much less defamation or invasion of privacy today? I strongly doubt that's the reason. Instead, I can think of several reasons for the decline in defamation and privacy trials:

1. Defamation lawsuits are very hard to win. Only about 13% are successful. It is thus hard to find lawyers who will take the case.

2. Invasion of privacy lawsuits are also hard to win. The privacy torts are fossilized into the forms they were in circa 1960, and they haven't evolved to address modern privacy problems. Moreover, courts cling to antiquated notions of privacy that make it hard for plaintiffs to prevail in a data-soaked world.

3. Focusing on trials might be the wrong thing to focus on. Trials themselves are becoming a rarity. Our legal system is overrun with costs, making it an extremely inefficient mechanism to resolve disputes. It is ridiculous that in many cases, the costs of litigating the suit can be greater than the actual money at stake in the lawsuit. Cases get settled just to avoid these costs.

4. Free speech has become exalted by courts in the past few decades. This is especially true with the Communications Decency Act Sec. 230, which courts have interpreted to immunize any ISP or website for comments made by their users -- even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

5. With social media, anybody now has the power to distribute information around the world. Much gossip and rumor now originates not in the mainstream media, but on Facebook, MySpace, blogs, and other forms of social media. By the time the mainstream media pick up a story, it has likely already been written about extensively online. For privacy cases, the people to sue are the ones who disclosed the information in the first place, and they are likely to be people writing on social media websites. They often don't have deep pockets, so suing them isn't economically worthwhile.

6. When people bring suits for defamation and invasion of privacy, it is difficult for them to do so using a pseudonym. Courts have broad discretion about whether or not to let plaintiffs proceed under a pseudonym, and many courts are reluctant to allow people to do so. This has the effect of further publicizing the rumor or gossip. Thus, when a plaintiff tries to bring suit to clear away the information, it paradoxically results in increasing the dissemination of the information. For many plaintiffs, bringing a lawsuit might do more harm than good.

I think this turn of events is unfortunate. People used to resort to self-help (violence and duels) to vindicate their reputations. Civilized society replaced these methods with a more humane alternative -- using the court system to resolve disputes. Sadly, that method is increasingly becoming too expensive and cumbersome for people to use.

Some commentators argue that today, people can more readily have the record corrected or improve their reputations by posting good things about themselves online. But it is hard to manipulate Google and other search engines to make the good information crowd out the bad. The problem is that bad information is often more interesting and juicy -- and hence more popular. And popularity is the key to getting information to the top of search engine results. Many people have short attention spans and don't care to dig to find out the boring truth or other facts about a person.

We need to have an outlet in civilized society for people to vindicate their reputations. We need to have some meaningful way to prevent defamation and invasion of privacy. Otherwise, people will spread all sorts of damaging rumors and gossip about each other online, and victims will return to self-help methods. That would be a big step backwards.

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Daniel J. Solove in the John Marshall Harlan Research Professor of Law at George Washington University Law School. He is the author of several books about privacy, including The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.