Spitzer's Kristen, The Blogosphere And The Law Of Defamation
In order to prove and recover for defamation, public figures and officials must prove that the harmful publication of the erroneous information was done with “real malice”. In contrast, for private persons, demonstrating negligence will suffice. There are several justifications for this disparity. One of these justifications is that public figures and officials, unlike private persons, have access to the mass media, allowing them to defend their good name and control their public persona. In contrast, the presumption is that when the media shines a spotlight on a private person, that person is as helpless and powerless as a cork at sea. In the aftermath of the Spitzer scandal I ask myself whether this factual observation, underpinning the "access justification” for the private/public distinction in the law of defamation, is as valid as it once was.
For me, the most interesting aspect of the Spitzer scandal was the role played by Ashley Dupre's (AKA "Kristen") MySpace page. The promo announced that on the "news at six" they would expose the request for privacy Dupre posted on her web page; it then dawned on me that I was not dependent on Fox News (yes I know…) for hearing what the mysterious Kristen had to say. When I found her web page (which by now has disappeared, replaced by what looks like a commercially oriented page) it already had over 10 millions hits!
Today we all have access to a mass media and we can all create our own public persona using a simple web page. What the majority of us lack is the most precious commodity of the information age: "name recognition." Few knew or cared to know the story and opinions of Ashley Dupre. Before the scandal broke she had access to a mass media in the form of her web page, but due to her anonymity she only had an unrealized or potential access to the public. The moment the spotlight was pointed at her she was also instantly bestowed with name recognition. Millions were interested in the story, opinions and pictures of "Kristen," and somehow many of them knew it was only a Google search away.
Considering the pervasive access to Internet-based mass media, today, unlike the days of N.Y. Times v. Sullivan, when private people are thrust into the public eye the byproduct is that they are given, ipso facto, a voice and a stage – allowing them to protect themselves. The more intensive the media focus on an individual the more amplified the "voice" of that individual becomes. It is a new form of protection that is organic to the system, not requiring legal intervention. Granted, this shift is only in its early stages; the power of the traditional exclusively held media is still much much stronger than freely accessible Internet based media. Nevertheless, the reality on which the "access justification" for the disparity between public officials and private persons has traditionally been based, is eroding.
Posted by Ori Herstein
For me, the most interesting aspect of the Spitzer scandal was the role played by Ashley Dupre's (AKA "Kristen") MySpace page. The promo announced that on the "news at six" they would expose the request for privacy Dupre posted on her web page; it then dawned on me that I was not dependent on Fox News (yes I know…) for hearing what the mysterious Kristen had to say. When I found her web page (which by now has disappeared, replaced by what looks like a commercially oriented page) it already had over 10 millions hits!
Today we all have access to a mass media and we can all create our own public persona using a simple web page. What the majority of us lack is the most precious commodity of the information age: "name recognition." Few knew or cared to know the story and opinions of Ashley Dupre. Before the scandal broke she had access to a mass media in the form of her web page, but due to her anonymity she only had an unrealized or potential access to the public. The moment the spotlight was pointed at her she was also instantly bestowed with name recognition. Millions were interested in the story, opinions and pictures of "Kristen," and somehow many of them knew it was only a Google search away.
Considering the pervasive access to Internet-based mass media, today, unlike the days of N.Y. Times v. Sullivan, when private people are thrust into the public eye the byproduct is that they are given, ipso facto, a voice and a stage – allowing them to protect themselves. The more intensive the media focus on an individual the more amplified the "voice" of that individual becomes. It is a new form of protection that is organic to the system, not requiring legal intervention. Granted, this shift is only in its early stages; the power of the traditional exclusively held media is still much much stronger than freely accessible Internet based media. Nevertheless, the reality on which the "access justification" for the disparity between public officials and private persons has traditionally been based, is eroding.
Posted by Ori Herstein