Defamation on the Internet

What is defamation?

Defamation is the communication of a false claim or statement of fact about another person that harms his or her reputation. This statement does not need to be made to a large group of people; you can be liable even if you make the statement to just one other person (other than the person the statement is about). There are two types of defamation. The first is libel or written defamation, including things written on Internet websites, blogs and message boards. The second is slander or spoken defamation.

What is a “false statement of fact”?

A false statement of fact is a false statement that can be proven true or false – such as “John stole my computer from my house,” or “Mary had an affair with the boss to get her promotion” – and which a reasonable person, in the context provided, would understand as being asserted as a true and verifiable statement. Obviously, if a statement is true, it cannot be defamatory.

Opinions, even if they reflect negatively on someone, are protected by the First Amendment and are not defamatory. However, just calling a false statement of fact an opinion is not enough to gain First Amendment protection. For instance, if you say, “Based on the evidence, in my opinion, it’s clear that John stole my computer from my house,” then a court mind determine that, because you were backing up your statement with evidence, that you were actually making a statement of fact. If that statement is false and hurts John’s reputation, then you could still be liable for defamation.

Does it matter if I made a statement about a public figure like a politician, as opposed to a private individual?

The First Amendment provides a little more protection when you are making a statement about a public figure such as a politician, celebrity, or an individual involved in a public controversy or who had a role in a major public event. In addition to proving that the statement was false and harmed their reputation, a public figure must prove that the person making the defamatory statement either knew the statement was false or recklessly disregarded the truthfulness of the statement.

When does a statement harm someone’s reputation?

A statement harms someone’s reputation if it lowers the value of the person to potential employers or to other members of the public. Often, a defamatory statement places the person in a negative light in regards to their integrity and morality. In some cases, a court will determine that based on the content of a statement, harm to the person’s reputation is presumed. This is called defamation per se and typically applies to false statements about a person committing a serious crime, having a sexually transmitted disease, lacking ability or integrity in their work or business, committing adultery or being promiscuous. If a statement doesn’t fall under one of these categories, it is called defamation per quod, and the plaintiff must prove damage to his or her reputation, such as loss of employment, business opportunities, or customers.

I posted a defamatory statement anonymously on the Internet, can I be tracked down?

Yes, in most situations, you can be tracked down. Even if he or she doesn’t know anything about you, the target of a defamatory statement can file a lawsuit and use the discovery process to track you down and find your actual identity. In most cases, the plaintiff can use your IP address to force your Internet Service Provider to turn over your account information, including your name and address.

Someone posted a defamatory statement on the website, blog, message board, or other online forum I run. Can I be held liable for defamation?

The short answer is no, you will not generally be held liable for a comment that someone else made on your website, blog, or message board. Under Section 230 of the Communications Decency Act, Internet service providers and website operators cannot be held liable for defamation for publishing statements that are were posted by someone else. For example a blogger could not be held liable for a defamatory statement made by another person in a comment on a blog entry.

What should I do if I am sued for defamation for a statement I made online?

First, you should contact an attorney with experience dealing with online defamation. The basics of defamation law are the same for online defamation as they are for normal written or spoken defamation, but there are also technical and legal issues specific to online defamation. For instance, a plaintiff will often try to sue in his or her home state, even if the courts there should not allow them to do so. These are called personal jurisdiction issues. Additionally, it is helpful to have an attorney who understands the technical issues surrounding the use of an IP address to track down someone who made the defamatory statement anonymously online.

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