Re-Imagining Resolution of Online Defamation Disputes

Open Access

Abstract

If an individual or company is defamed online, they have two options to resolve the dispute, absent a technical solution. They can complain to an intermediary or launch a civil action. Both are deficient for a variety of reasons. Civil litigation is often unsuitable given the nature of online communications (across different platforms, jurisdictions, involving multiple parties, and spread with ease), the length and cost of litigation, and the ineffectiveness of traditional remedies. Intermediary dispute resolution processes can sometimes be effective, but lack industry standards and due process, place intermediaries in pseudo-judicial roles, and depend on the changeable commitments of management. At its core, the problem is the high-volume, low-value, and legally complex matrix of online defamation disputes. In this article, I ask: Are there alternative ways to resolve disputes that would improve access to justice and resolution for complainants? The key to resolving some of these problems, I argue, is revisiting the basic issue of what complainants want in the resolution of a defamation dispute and then connecting this with innovations in dispute resolution. Ultimately, I recommend the creation of an online tribunal as a complement to traditional court action. In coming to this conclusion, I explore various issues and proposals for reform, including the challenges wrought by online defamation, what defamation claimants want when they sue, the role of technology in resolving such disputes, streamlined court processes, online dispute resolution, and the regulatory role of intermediaries.