Is Fame Different On the Web?
defamation

DEFAMATION LAW (libel or slander) is not directly about fame; anyone can be libeled or slandered.  But its application requires courts to answer a related question: WHAT IS A PUBLIC FIGURE? In the United States, the standard for proving libel or slander is higher for public figures (people in the public eye) than it is for private citizens; public figures must prove not only that what was said about them was not true, but also that it was said with "actual malice" because the speaker knew it was false or recklessly disregarded the likelihood that it was false.  New York Times v. Sullivan, 376 U.S. 254 (1964).  Practically speaking, once a defendant shows that the plaintiff is a public figure, courts rarely find "actual malice" and defamation.

Public Figures Offline

There are Three TYPES OF PUBLIC FIGURES

First, GENERAL PUBLIC FIGURES are prominent figures in society, typically what one would consider traditionally famous people like politicians, athletes, and celebrities. See,Alioto v. Cowles Comm. Inc., 519 F2d 777 (9th Cir, 1975) (Mayor was a public official, which is a type of public figure), Cepeda v. Cowles Magazines, 393 F.2d 417 (9th Cir. 1968) (Professional basketball player was a public figure), Newton v. Nat'l Broadcasting Co., 930 F.2d 662 (9th Cir. 1990) (Wayne Newton was a public figure).  The Supreme Court has defined these general public figures as those who "assumed roles of special prominence in the affairs of society [and] occupy positions of such persuasive power and influence that they are deemed public figures for all purposes." Gertz v. Robert Welch, Inc.,418 U.S. 323, 345 (1974).  They must meet the higher "actual malice" standard to prove defamation for any statement made about them.

Second, LIMITED PURPOSE PUBLIC FIGURES are people who have entered the public discourse in connection to a particular controversy, who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz at 345 (1974). Typically, this means that they have (1) voluntarily participated in discussing the controversy, and (2) have access to the media to make their views known. See Barry v. Time Inc., 584 F. Supp. 1110, 1113-22 (N.D. Cal. 1984); Reader’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 254 (1984). They must meet the higher "actual malice" standard to prove defamation for statements about them in conjunction with that controversy.

Third, INVOLUNTARY PUBLIC FIGURES are people who become public figures "through no purposeful action of their own," by their association or participation in some high profile event or controversy, though these are "exceedingly rare." Gertz at 345 (1974).  For example, inDameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985) an air traffic controller was found to be an involuntary public figure because he was on duty at time of fatal crash, which was a major public event.

PUBLIC FIGURE DOCTRINE EXISTS FOR TWO REASONS.  First, a FIRST AMENDMENT REASON: the law wants to preserve the ability for people to discuss public figures without undue fear of retaliatory accusations of libel, while for private citizens there is no such need. Politicians are the quintessential examples of public figures: for democracy to function, we have to be able to discuss them extensively. Second, a FAIRNESS REASON: public figures have generally opened themselves up comment by entering the public sphere in a way that private citizens have not (though this obviously does not apply in the case of involuntary public figures.

What's Different on the Web?

As with the right of publicity, most of the thinking about defamation online has dealt with defamation of offline figures that happens online, rather than defamation of online people who are arguably public figures because of their presence online, whether the actual defamation happens online or not. Therefore, this discussion is largely predictive of how courts will handle such issues and normative about how they should handle them, rather than descriptive of how they have handled them.

DOES AN ONLINE PRESENCE MAKE ONE A PUBLIC FIGURE? This depends in a large part on what sort of online presence one has.  For many people, their public presence online is more or less connected to their offline public presence, so the two cannot be considered in isolation from one another — it would make no sense to look only at BarackObama.com to determine if Barack Obama is a public figure (he is).  But the question remains, what kind of online activities make one a public figure?

The EFF speculates that making POSTS ON A (PUBLIC) BULLETIN BOARD about a controversy may make one a LIMITED PURPOSE PUBLIC FIGURE.  This makes sense because by posting one is voluntarily entering into the discussion about the controversy and inviting responses, and because one has access to the bulletin board to make one's view known.  Of course, it would not make one a general public figure.  Thus a bulletin board post opens one up to criticisms that are related to the controversy or topic being discussed, but not to ad hominem attacks on unrelated issues.  This reasoning can be extended to other forms of shared, public posting such as public forums, comments on blog posts, publicly viewable youtube videos or photographs on Flickr,  etc..

What about MORE PRIVATE POSTING?  Posting where access is limited to a specified audience or membership (posts on a private forum or blog, photographs that are not made public on a site like Shutterfly) SHOULD NOT MAKE ONE A PUBLIC FIGURE.  Although one still theoretically has access to various forms of media (including public forums) to make one's views known, one has not voluntarily entered a public discussion about the controversy by posting in a private form.

What about PERSONAL WEBSITES? Again, it should DEPEND ON WHETHER THE AUDIENCE IS PUBLIC.  Information on a social networking site like Facebook or MySpace that is viewable only to "friends" should not be considered an entry into a public discussion.  On the other hand, a personal blog or homepage viewable to everyone on the internet or information on social networking site that is viewable to everyone should be considered public interventions and their creators should be considered limited public figures.

INVOLUNTARY ONLINE PRESENCE is a trickier issue and the involuntary public figure doctrine may not adequately cover it. There are TWO SIMPLE CASES:

    1. When someone posts something defamatory online about a person who has no significant public identity online or offline (a private citizen); that is simple defamation and the fact that it happened online makes little difference.  
    2. When someone posts something about a private citizen online that is not defamatory (for example, something that is true, like a picture or video of that person), it may be a violation of privacy, but is not defamation.  

But, after (2) has occurred and the private citizen has achieved some degree of INVOLUNTARY ONLINE FAME, are subsequent comments about that person defamatory or have they become involuntary public figures?  This is something like the cases of Star Wars Kid and Allison Stokke. Note that the traditional involuntary public figure doctrine arguably does not apply, since there is no independent public controversy to which the person is connected; the person's own actions or appearance is the public phenomenon or controversy and they did not voluntarily make it public.  (And, what if the person subsequently comments publicly on the phenomenon of their unwelcome publicity; does that make him or her a limited public figure and then obviate the very protection that he or she sought?  This seems like a perverse result.)

In other words, this situation pits the two rationales for the public figure doctrine against each other.  To determine whether a particular person has become a limited public figure online despite not voluntarily involving him or herself with a public controversy, COURTS SHOULD BALANCE THE TWO RATIONALES.  If, in any particular case, the value of free exchange of information and expression outweighs the privacy concerns implicated by the involuntary origins of the public recognition, then the court should consider the person a public figure.  Otherwise, it should not.  Courts will have to take care, however, not to overweigh the privacy concerns and should require clear proof that the publicity was entirely involuntary and that other remedies (such as laws directed to protect privacy) could not have prevented the unwelcome publicity.

Links

New York Times v. Sullivan, 376 U.S. 254 (1964) - foundational Supreme Court case establishing the public figure doctrine.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) - Supreme Court case delineating the types of public figures.

EFF's Internet Law Treatise entry for Defamation: Selected Defenses - briefly discusses public figure doctrine and suggests that it might apply to a plaintiff participating in an online bulletin board discussion.

EFF's Bloggers' FAQ - Online Defamation Law - concerned entirely with online defamation by bloggers, not with defamation of online public figures.

Randy Dotinga, Are You a 'Public Figure?', Wired, Nov. 9, 2005 - article about a 2005 Florida Circuit Court case in which a woman involved in a controversy that was covered by online news but not traditional media was determined to be a public figure.