Understanding Online defamation

The law of Defamation has come under renewed scrutiny with the advent of the Internet. This is largely because it is the nature of the Internet to give the average, anonymous person an opportunity to express their opinion well-beyond any previously defined venue. Consider the fact that a person of modest means now has the ability to publish a statement, article, or news item across the world in an instant, without an editor checking the facts. Thereafter, the item will linger on the 'Net for months, or even years, impossible to recover and amend, if the "facts" are erroneous. Therefore, it is inevitable that problems are going to arise.

The main issue to remember when dealing with the Internet is that people still have their basic legal rights intact on the Net, and - likewise - the Internet is not as completely anonymous as the typical person may presumes.

What is Defamation?
The law of defamation has been defined in the West for centuries, and the Internet variety holds to that same basic outline with a few twists. Defamation is the act of making an untrue statement to a third party that damages the subject's reputation. There are several subcategories of Defamation, being Libel and Slander. Libel is Defaming in a printed forum, such as a newspaper or magazine. Slander is spoken Defamation, and could be made person-to-person, or also broadcast over a radio or television.
Technically, Defamation actionable at law follows this schema:
1. A false and defamatory statement regarding another;
2. Unprivileged publication of the claim to a third party;
3. Rising, in the case of matters of public concern, to at least negligence by the publisher, or worse; and
4. Damages to the subject.

Generally, persons defined as "Public Figures," have a higher threshold in proving someone committed Defamation against them; that is, the statement must have been made maliciously. There are also four subjects that if falsely dispersed as a fact about another person, are actionable on their face: Attacking a person's professional character /standing; Alleging an unmarried person is unchaste; Claims a person is infected with a sexually transmitted, or loathsome disease; Claims a person has committed a crime of moral turpitude.

Is Internet Defamation Defined as Slander, Libel or Both?
Until the recent development of "podcasts," and other types of online videos such as those featured on YouTube, Defamation on the Internet was largely deigned Libel. But whether an online case of accused Defamation should fall under either category of Libel or Slander will not be nearly as meaningful as whether the activity satisfies the basic Defamation criteria, as defined above. What is most important is to focus upon the actual statement, whether verbal or written, that a plaintiff claims is defamatory.
A recently filed case illustrates the application of a libel claim in a blogging case in NY, Stuart Pivar v. Seed Media, 2007cv07334, Filed August 16, 2007, in New York Southern District Court. Seed Media pays PZ Myers to blog at ScienceBlogs.com, and there he reviewed a book by Dr. Stuart Pivar, called "LifeCode: The Theory of Biological Self Organization" which purports to reconfigure Darwinian Evolution.

Myers claimed Pivar is a "classic crackpot" on his http://scienceblogs.com/pharyngula website. In response, the lawsuit complaint states, "Myer's defamatory remarks were made with actual malice; Myers called Plaintiff "a classic crackpot" fully knowing that statement to be false as a statement of fact and in reckless disregard of the truth about Plaintiff because Myer's knew full well, the time of publishing his defamatory statement that no scientist holding the international reputation of any of Hazen, Sasselov, Goodwin or Tyson would endorse or review the work of a crackpot."

The complaint claims Myers caused "considerable mental and emotional distress," tortious interference with the plaintiff's business relationships as a "scientist and scientific editor," and "loss of book sales and diminished returns on ten years of funded scientific research in special damages" exceeding $5 million.
The suits asks for: declaratory relief to remove defamatory statements from the web and an injunction to block further libel; $5 million in special damages for "tortious interference with business relations"; and $10 million in damages for defamation, emotional distress, and loss of reputation.
This lawsuit well illustrates the libelous cause, effect and damages of a proper tort case based upon defamation.

Can a Blog Be Sued for Defamation; Isn't It All Free Speech?
This is a knotty issue, but a short answer would be, generally, that a blog owner whose blog has published obnoxious materials can be held harmless while a blogger using the site can be liable. The Communications Decency Act of 1996 is a protector of blog owners. It states, in section 230, that it "precludes courts from entertaining claims that would place a computer service provider in a publisher's role." As to how the court sees blogs, in general, overall, the US Supreme Court has ruled that blogs are similar to news groups, saying "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."

For bloggers, all Defamation legal rules apply to their posts. But there are many complications in applying them. First, many people who post online comments, and probably those tending to make the most inflammatory and false statements, will do so anonymously, for obvious reasons. So the first threshold is identifying the blogger making Defamatory claims. Several things make this difficult, as well. Since the blogger probably will not identify themselves when the issue comes to light, there needs to be a legal process that allows identification. They can be traced by high-tech means, but a court must agree via summary judgment that all the elements of Defamation have been met. This technology does have some limits, as well, as it can be stymied through use of "Proxies," which mask the true origin of the blogger. Also, the website owner may not cooperate in the search, as well.

A recent case showed how powerful Defamation laws, applied online, can be. In November 2006, a Florida woman, Sue Scheff, was awarded $11.3 million in damages in Broward County Circuit Court, in one of the biggest awards ever tolled. The suit was filed for Internet defamation, and the jury found a Louisiana woman had posted caustic messages against the Scheff and her company, claiming she was a "con artist" and "fraud". The jury found the charges were completely false, so the Louisiana woman had no defense. Interestingly, Scheff's attorney had offered to settle the case for $35,000 before it went before the jury.


What are some examples of libelous and non-libelous statements?
The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false):

* Charging someone with being a communist (in 1959)
* Calling an attorney a "crook"
* Describing a woman as a call girl
* Accusing a minister of unethical conduct
* Accusing a father of violating the confidence of son

Not-libelous:

* Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
* Calling a TV show participant a "local loser," "chicken butt" and "big skank"
* Calling someone a "bitch" or a "son of a bitch"
* Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.

How do courts look at the context of a statement?
For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog's audience.

Context is critical. For example, it was not libel for ESPN to caption a photo "Evel Knievel proves you're never too old to be a pimp," since it was (in context) "not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment." However, it would be defamatory to falsely assert "our dad's a pimp" or to accuse your dad of "dabbling in the pimptorial arts." (Real case, but the defendant sons succeeded in a truth defense).

What is "Libel Per Se"?
When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se:

A statement that falsely:

* Charges any person with crime, or with having been indicted, convicted, or punished for crime;
* Imputes in him the present existence of an infectious, contagious, or loathsome disease;
* Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
* Imputes to him impotence or a want of chastity.

Of course, context can still matter. If you respond to a post you don't like by beginning "Jane, you ignorant slut," it may imply a want of chastity on Jane's part. But you have a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact.

What is a "false light" claim?
Some states allow people to sue for damages that arise when others place them in a false light. Information presented in a "false light" is portrayed as factual, but creates a false impression about the plaintiff (i.e., a photograph of plaintiffs in an article about sexual abuse, because it creates the impression that the depicted persons are victims of sexual abuse). False light claims are subject to the constitutional protections discussed above.