[iwar] [fc:Court:.Online.Scribes.Protected]

From: Fred Cohen (fc@all.net)
Date: 2001-12-11 15:32:41
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From: Fred Cohen <fc@all.net>
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Date: Tue, 11 Dec 2001 15:32:41 -0800 (PST)
Subject: [iwar] [fc:Court:.Online.Scribes.Protected]
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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.

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." 

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