Maybe libel law is obsolete. Maybe it always was. But in the world of Net communications, it's hard to see why anyone should weep if libel lawsuits disappeared altogether.

Sure, you're now hearing about net.libel lawsuits like the Stratton Oakmont case, in which an investment banking firm sued Prodigy for a posting some anonymous user made. But in the long run, it may be that the Net kills libel lawsuits - partly because the Net turns many more of us into public figures, and partly because our ability to use the Net to rebut charges is a much more satisfying remedy.

The theory behind libel law is simple: it's possible to say or publish something that so badly injures someone's reputation that it measurably damages his or her life and livelihood. This is especially true, say the libel theorists, when one is talking about defamation in mass media such as newspapers and TV. So the courts are set up to award monetary damages to compensate deserving plaintiffs for injury done by defamation.

But as a practical matter, libel law has never been much of a remedy for regular folks in the modern era. First of all, it's largely a game for the rich and the privileged. "Libel is a high-status tort," writes University of Texas law professor Lucas Powe. "Those who sue tend to be male, well-educated, professional, financially well-off, middle-aged, married, and long-term residents of the community. The majority of those characteristics could be deduced by asking who is likely to be named in newspaper articles."
Second, libel cases take a long time to complete (four years is about average, says Powe). Third, and most important, it's hard to win a libel case given the framework the US Supreme Court has erected in order to protect First Amendment interests, most notably in New York Times Co. v. Sullivan (1964) and Gertz v. Robert Welch Inc. (1974).

It's the latter case, Gertz, that points to why libel law may be on the verge of obsolescence. In that decision, the Supremes explained why the Court has "no difficulty in distinguishing among defamation plaintiffs" - that is, between public figures (who have less libel protection) and private individuals (who have more). According to Justice Lewis Powell, writing for the majority, the preferred response to a defamation problem is to fix it yourself. But since private individuals supposedly don't have the kind of access to mass media it takes to correct the record, the First Amendment allows the states to use libel law to level the playing field, making it easier for private individuals to counter the damage done to their reputations by mass media.

These two factors - the definition of public figure and the rationale for treating public figures differently - play out differently online. Consider: It's almost trivially easy to become a public figure on the Net. In effect, every opinionated individual has a microphone and an audience, and regular participants in online discussions can quickly become well known.

And the comparative openness of the Net means that more people who feel they've had their reputations besmirched have access to self-help. If some bozo writes 100 lines of false statement and innuendo about your sex life or personal habits, you can write 500 lines of point-by-point refutation. It's a "day in court" that comes cheap.

These factors make libel law increasingly irrelevant, at least as far as online conferencing is concerned. This is not to say there won't be a lot of talk about net.libel lawsuits in the near term. Much was made of the Medphone v. DeNigris lawsuit back in 1993, even though the case (in which a Prodigy user was sued based on a posting he'd made in a stock-market forum) had virtually no legal significance. Lots of Prodigy users claim to be shocked that something they say online could be the basis of a defamation lawsuit. What is really shocking, however, is that anyone thinks the online world gives users some kind of special legal immunity to say anything defamatory they like.

What makes the other well-known online libel cases - such as Cubby v. CompuServe in 1991 and Stratton Oakmont Inc. and Daniel Porush v. Prodigy last year - so significant? It has nothing to do with whether users can be sued for what they post. Of course they can. Instead, the focus is on whether the service provider ought to be held responsible for the postings of its users - and there are compelling legal and policy arguments to believe it shouldn't.

Not the least is the fact that taking your defamer to task on the Net is comparatively easy. So there's little point in making providers the focus of your anger when the defamer is right there, providing a handy target, and your keyboard is right there, providing a handy remedy.

That's why I feel quite safe predicting that, in spite of the fierce invective, strong feelings, and often-defamatory statements one tends to see in net.arguments, we're never going to see many libel cases, relatively speaking. After all, it's much more satisfying to use the Net to correct the record and to flame your defamers. And this remedy doesn't take years - it takes only minutes. Depending on your typing speed, of course.

Mike Godwin (mnemonic@eff.org) is staff counsel for the Electronic Frontier Foundation.