Online Defamation & Libel: Legal Issues

Social media and other online platforms make it easier to become a target of defamation, but a libel lawsuit might still be a challenge.

A typical defamation case involves the publication of a false statement about a person that results in some kind of harm, including financial losses or damage to the subject's reputation. "Publication" can be in the traditional sense (in a newspaper article), through a statement broadcast over the airwaves, or just via spoken words overheard by at least one third party. But more and more, "publication" of a potentially defamatory statement takes the form of something posted online. (Get the basics on defamation of character.)

Should you find yourself the subject of someone else’s false online statements, you might be considering legal action. Here are some key issues to consider.

Can You Identify the Person Who Defamed You?

Before bringing a lawsuit, you need to figure out who made the potentially defamatory statement (when posted online, this kind of defamation is called "libel"). It's easy enough to identify someone who uses a personal social media account to post something false and injurious. But many online communications can exist with significant anonymity. There are several ways to ascertain the identity of an anonymous online poster.

First, you can ask the court to issue an order forcing a third party to disclose the identity of the anonymous person. This third party might be the administrator of a message board, for example. But given strong free speech protections in the United States, a court will only grant this order after balancing the poster’s constitutional right to free speech against any potential harm you suffered because of the defamation.

Second, you can file a defamation lawsuit against "John Doe" or "Unknown Defendant" (whatever procedure your state court allows), then during discovery you get the court to issue a subpoena. This subpoena process typically involves two steps. Step one requires a subpoena against a third party, such as a website where the libelous statement is hosted. The purpose of this subpoena is to reveal the IP address of the author of the post. Step two requires getting a second subpoena to serve on the ISP that handles the poster's IP address. The ISP can then provide the poster’s name, address, or other identifying information.

You can also employ some online detective work using clues left by the author of the post. For instance, they might use the same pseudonym on other websites, allowing you to follow the electronic trail they leave behind. This might give clues as to what city they live in, what they do for a living, or what school they attend. Eventually, the clues could lead you to the poster’s personal Facebook account, or something with similar identifying information.

Who Can You Sue for Online Defamation?

You can clearly go after the individual who made the defamatory statements about you online, but they might not have much in the way of assets to pay any damages resulting from the defamation. Looking for bigger pockets, you might consider suing the ISP or website host. Unfortunately, the Communications Decency Act largely exempts website hosts and ISPs from most defamation-related liability.

Where Will Your Defamation Lawsuit Be Filed?

Before filing a defamation lawsuit, you also need to figure out where to sue. Most defamation suits take place in state court, but in which state court should you file your complaint? Is it your state? Is it the state where the poster lives? Maybe it’s the state where the ISP or website host has its main office. Or perhaps it’s the state where the physical servers that contain the defamatory statements exist?

There is no definite answer to these questions. They depend on a number of factors, such as each state's jurisdiction laws, the types of interactions you and the defendant have with each state, and the provisions contained in each state’s defamation statutes.

As you can see, there's a lot to consider before taking legal action over a potentially defamatory online statement. One final factor to keep in mind is that in many cases, the cost of bringing an online defamation lawsuit could exceed any potential damages you could recover.

Your best first step might be talking to an attorney who handles online defamation and privacy litigation to figure out what your legal options are. Learn more about an attorney's role in a defamation lawsuit.