Defamation -- or defamation of character -- is a wrongful act where someone makes a false statement of fact that injures the reputation of another. In deciding defamation cases, courts typically balance the competing interests of the right to free speech of the defamer with the reputation interest of the person being defamed. In this article, we’ll examine some key legal issues related to defamation lawsuits, and examine how the internet or social media can play a role in the case.
Libel vs. Slander. Generally, a statement that is made in writing is libel, and an oral statement is slander. However, with increased internet usage, this line has become blurred. The focus now is on the "permanence" of the defamatory statement. For example, though instant messages are technically written statements, because of their transient nature they are arguably more akin to oral statements. Similarly, a "podcast" may be more like a written statement than an oral one because of the statement's permanence and the ease with which is may be widely disseminated.
This distinction is important for establishing damages: the more permanent the statement, the more potentially harmful it is to the plaintiff in a defamation case -- the greater the damages.
Though each state has its own particular requirements as to what constitutes defamation, generally all of the following elements of a defamation claim must be satisfied:
"Publication" means that the defamatory statement is communicated to a third person, or persons, that understand that the statement was defamatory and know who the statement was about.
Multiple publication v. Single publication. In the United Kingdom, the definition of publication includes each instance the defamatory statement is made. This is known as the multiple publication rule. For example, each visit to a website by a new user constitutes another claim for libel. In the United States, conversely, which recognizes the single publication rule, liability is limited and the statute of limitations usually begins to run one year from the date of the original publication. For this reason, celebrities often bring defamation cases in the U.K., even if the alleged defamer has never set foot there or only intended the message to reach U.S. audiences.
To be considered defamation, the statement must be one of fact, not opinion. The reason for this distinction is that the First Amendment protects opinions. Distinguishing fact from opinion, however, can be difficult and often depends upon the context and circumstances as a whole. For example, just because the defamatory speaker uses words like "I think" or "in my opinion" does not mean the statements were merely opinion. Courts will look beyond the actual words used to see whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact, i.e., that the statement can be proven to be true or false. Some courts have even stated that statements made on message boards or in chatrooms are probably opinions or hyperbole, unless the context proves otherwise.
Generally, public figures must overcome a higher standard to prove that they have been defamed. Public figures have to prove that the defamer published the statement with "actual malice." Actual malice means that the defamer published the statement with either knowledge of its falsity, or in reckless disregard for the truth.
A public figure is a person of general notoriety or fame, like a celebrity, CEO, or politician. However, a person that is at the forefront of public controversies in order to influence the resolution of the issues involved, or those who have distinguished themselves in a particular field (i.e., a college football coach), may be considered a limited purpose public figure. A limited-purpose public figure only has to prove actual malice with respect to matters related to the discussion or occurrence in which they are considered public figures.
Corporations are not always public figures and are judged by the same standards as individuals.
Truth. Truth may be a complete defense to defamation cases. In other words, if the statement at issue is in fact true, it can't be defamatory.
Retractions. In some states, a defamer that retracts the defamatory statement will receive some protection. For example, the plaintiff may be denied punitive damages or will be limited to "special damages" (the specific monetary losses caused by defamatory statement).
Statute of Limitations. The statute of limitations bars a plaintiff from bringing a lawsuit after a certain period of time. In California, for example, the statute of limitations is one year after the defamatory statement was first published.
Initially, a blog or website owner could be liable for the defamatory statements made by others on the owner’s blog or website, because the owner was publishing the defamatory statements. In response, Congress enacted the Communications Decency Act of 1996, 47 U.S.C. § 230(c) ("Section 230"). Under Section 230, unless there is an affirmative showing by a plaintiff that an owner of a blog or website is the author of a defamatory message or post, the provider should almost always avoid liability for defamation. However, if the owner actually monitors the messages or posts on his or her blog or website, they may lose the protections afforded by Section 230.
Jurisdiction is the authority of the court to hear and decide upon a particular matter. Jurisdiction for an internet defamation claim is typically appropriate wherever the effect of the defamation is felt. In recent U.S. decisions, "targeting" of the forum is also required in order for jurisdiction to be appropriate in a certain court. In other words, did the defendant show an intent to aim their online content toward a certain audience, i.e. one in a certain state? If so, then a defamation case could likely be heard there.