Defamation Laws and The Internet

So many individuals are unfamiliar with the legal process and the law itself and how they work, let's address the issues of defamation law on the internet and see how well they will stand up in any court of law, particularly in an International one, and more importantly, how the existing laws apply in the medium of cyberspace. It is a tricky and slippery field and tremendous burdens must first be overcome by any person seeking to bring such actions. In brief overview, the plaintiff must meet (1) jurisdictional requirements - the "place" the action is to be filed; (2) procedural requirements - the plaintiff must set forth ALL elements necessary in the complaint and present cursory "proof" in order to withstand a summary dismissal (3) the plaintiff bears a "strict" burden of proof over that of the defendant (4) the plaintiff is not subject to any "qualifiable" or "absolute" privileges which include being a "public figure"; and finally, the truth or veracity of the statement made by the defendant is a quid pro quo defense to any action for defamation.

Let me also state before going further: NO COURT HAS YET TO EVEN HEAR A CASE, MUCH LESS DECIDE ON ONE, IN WHICH A 'PRIVATE' PERSON HAS BROUGHT AN ACTION FOR DEFAMATION DUE TO WHAT HAS BEEN SAID IN A CHAT ROOM OR ON AN INTERNET DISCUSSION BOARD. All such related cases determined by the court have dealt with public figures and the overwhelming majority have been dismissed as lacking the essential actionable elements.

Except for the examples I will show which fall outside the exceptions of protected speech and "qualifiable privilege" which include OPINION and "fair comment", the laws are precise and narrowly defined. Further, the courts have held that "unfair criticism" is absolutely NOT actionable. Examples are: "Madonna is the worst singer ever" or "Harla Quinn's posts are so ridiculous I laugh everytime I read them". (smile)

First of all, an action for defamation is what's called a "tort". It is a civil action and not a criminal action. Defamation consists primarily of slander (verbal) and libel (written).

Defamation in this country, England and Canada are based on the common law for the purpose of protecting its citizens from false and derogatory remarks which harm their reputation in the COMMUNITY. Defamation law is not covered by federal law - which means that the laws of each particular state or region where the action is brought - and these are precisely defined in each - set forth the "actionable elements" which the plaintiff MUST ALLEGE and also must present cursory proof to the court.

Actionable Elements:

These include accusations of:

(1) a criminal act (he stole my purse, she's a prostitute, he commited criminal fraud)

(2) a disreputable character (he is dishonest)****

(3) an infectious disease (he has AIDS)

(4) a mental instability (she is mentally unstable)

(5) any words intending to lower the plaintiff's standing in the eyes of the COMMUNITY, or tend to make others refrain from associating with the victim.

****Defamation must be a direct attack on an ACTUAL reputation, not an alleged reputation that a "victim" believes they deserve. A plaintiff who seeks to bring a cause of action for defamation must SHOW that the COMMUNITY in which they reside, work or function KNOWS THEM or HAS SOME GENERAL KNOWLEDGE OF THEM. If the COMMUNITY has no prior knowledge of this individual in order to tender an opinion as to the individual's reputation, then no actionable element exists. In this instance, COMMUNITY would be defined as the "cyber-community" of this particular discussion board.

Further, making simple off-the-cuff remarks such as shouting "You're Crazy!" or "Liar" in a crowded room or on a street corner do not satisfy the burdens of proof necessary for an actionable claim of defamation, slander or libel.

Merely setting forth one of these actionable elements IS NOT ENOUGH - IN ANY JURISDICTION. In order to bring a cause of action for defamation, the plaintiff bringing the action has a "strict" burden of proof which MUST meet ALL the elements described - not one or a combination thereof - and these are narrowly defined:

(1) the statement was made with malicious intent (except in Canada)

(2) the statement fell into one of the narrowly defined categories shown above

(3) the statement was published to third parties (KEY)

(4) the statement was BELIEVED and relied on by third parties; and

(5) the plaintiff was damaged by the statement.

However, it is the consensus of all courts that citizens are entitled to make "fair comment" on matters of public interest without fear of defamation claims. A good example of this is a letter to the editor on a matter of public concern and, in cyber-space, opinions as to the truth or veracity of the matters discussed. The rule of thumb is that the "fair comment" must reflect an HONESTLY HELD OPINION based on an inference of the fact and NOT motivated by malice.

Publication is the key term without exception in any defamation action. In the case of both slander and libel those items noted above must be published to third parties. Private disputes and private conversations between individuals do not, in any court of law, constitute libel nor slander because no third parties are involved. Third parties, in the context of defamation, means the COMMUNITY in which they reside, work or function who KNOWS THEM or HAS SOME GENERAL KNOWLEDGE OF THEM. Without these guidelines, as the founders of Common Law determined, the court's precious time would be consumed with petty disputes which have no damageable grievance.

As I noted above, "intent" to defame is another key element necessary in a defamation action. In written or oral deposition or in open court, you would be required by the courts to answer very detailed questions as to your motivations for making the defamatory remarks and to produce any supporting evidence on your behalf. If you made public claims that you had such documentation and/or "sources" but then complain to the court that you do not possess such documentation or refuse to produce the information, either of two things will occur: (1) your case will be summarily dismissed and punitive damages will be assessed against you for making wrongful and malicious defamatory remarks; or (2) the court will incarcerate you until such time as you produce the documentation or the source of your information. There is much case law with regard to reporters' and investigators' refusal to divulge source information. You would also be required to turn over any documentation which would support your position as to the truthfulness and veracity of your claims.

I will repeat this once again, in any court defamation and libel claims are "narrowly defined" meaning that the person bringing the action has a "strict" burden of proof which MUST meet ALL the elements described - not one or a combination thereof - (1) the statement was made with malicious intent (2) the statement fell into of the narrowly defined categories (3) the statement was published to third parties (4) the statement was BELIEVED and relied on by third parties; and (5) the plaintiff was damaged by the statement.

Outside the parameters of the exceptions noted above, the defenses to claims for defamation carry a much easier burden of proof and you need only show that any ONE of the elements are missing in order to have the action dismissed. You may show that there was no malicious intent to defame, no publication to third parties, the plaintiff was not injured in any way by the comments, and/or that no one BELIEVED nor relied on the statements as true. Even IF you FAIL to meet any of these elements of proof, substantiation of the truthfulness of the claims is a complete defense to an action for defamation.

"Absolute" and "quantifiable" privileges include those discussed above which are "fair comment" "opinion" and even "unfair comment" in certain contexts. Not falling in either category are annoying, harassing or offensive speech, even when it's INTENDED to annoy or offend. Thus, if someone posts a newsgroup article calling you names, just to tease you or get back at you, they are largely immune from punishment. If I post annoying messages to a newsgroup or a discussion list, and you want to stop getting them, the court can't order me to stop posting them. Such an order would interfere with my ability to talk to others on the board, not just to you, and would be an infringement of my right to free speech. The only exception is where one can prove intentional infliction of emotional distress. Even so, the speech itself must be so "outrageous," that it must cause "severe" distress.

"Harassment" is "hostile environment" speech that creates a hostile environment for people based on race, sex, religion, national origin, or other categories. This usually covers bigoted insults, but has even been read to include religious proselytizing, off-color jokes, bigoted political statements, and art that contains nuditypersistent offensive or annoying posts (even personal attacks). Harrassment in newsgroups or discussion lists are CONSTITUTIONALLY PROTECTED. Most lower courts suggest (because no cases have been determined outright on the issue) that bans on "hostile environment harassment" in colleges and universities are unconstitutional. Though receptive to laws banning hostile environment harassment in workplaces, those laws pertain to federally protected rights against sex, race or religious discrimination and not defamation.

Then there is the case of public figures. Public figures are generally held to be those individuals who have put his or herself in the public eye, and become very well known. Public figures have less protection from the law of libel because they have more access to the media. Also, public figures may not bring actions for intentional infliction of emotional distress except in cases where there are serious threats which cause them to fear for their lives or the lives of those aroud them or where there is an intentional falsehood "calculated" to cause intentional emotional distress. In the case of public figures, defamation claims are even more difficult to assert than for private citizens.

In New York Times v. Sullivan (1964), the Supreme Court held that public figures could not sue for defamation unless they could show that the publisher (1) knew that what it was publishing was false, or (2) unless the publisher was "reckless" about the truth of what it published. The "standard of proof" in defining "reckless" is miniscule and can be based on little more than an "anonymous tip" which may be supported by a further inference of circumstantial proof.

Let's set forth a very pertinent example:

CHAOS appears in an online discussion group. When CHAOS appears, CHAOS is not very nice. CHAOS's contributions to the group are harsh, and direct, and people in the online community become angry about them. CHAOS then becomes plainly offensive to the other members of the group, a hateful and vicious character, insulting members of the community and in one case, doing real *harm* by revealing confidential facts and personal e-mails received from one of the group members.

Where are the actionable elements? IF, this case was heard by the court it would NOT be because of the facts set forth above, but because CHAOS used a pseudonym that already belonged to another member of the discussion group. Only that member has "standing" to bring an action against CHAOS for "damaging" his/her reputation due to the pseudo-CHAOS' disruptive actions on the board. IF the pseudonym is not copyright protected which gave the "original" CHAOS a legal privilege to protect the pseudonym, the case would be dismissed and the defamation claims never heard.

What about the group member whose private e-mails were published and about whom confidential private information was released? Theoretically, that member could only bring an action for invasion of privacy (which, BTW, have even MORE strict actionable provable elements than defamation) and would likely have their case dismissed outright. In an action for defamation it would be a long hard road to show that their reputation was damaged by the release of the information because they would be required to show the "lowering" of their esteem in the eyes of the remainder of the group members BECAUSE OF the release of the confidential information and e-mail.

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), was probably the first significant case on the topic. In Cubby, the District Court held that CompuServe was not liable for defamation claims arising out of statements contained in Rumorville, an on-line newsletter which CompuServe disseminated as part of its "Journalism Forum."

However, the court's opinion left open the possibility that a database operator that exercises editorial control over content could be deemed a "publisher" rather than a mere "distributor," giving rise to potential liability.

Perhaps the most important case in this area was Stratton Oakmont, Inc. v. Prodigy Computer Services Inc. No. 031063/94 (N.Y. Sup. Ct. Nassau Co. 1995) 1995 WL 323710, 63 U.S.L.W. 2765, Computer Industry L.R., January 5, 1995, p. 19,812. resulted in Congress passing the "good samaritan" provision of the Communications Decency Act of 1996.

In the Stratton Oakmont case, the plaintiffs, an investment bank and its president, sued Prodigy for statements posted on Prodigy's "MoneyTalk" computer bulletin board which asserted that Stratton had engaged in fraudulent activity (A CRIMINAL ACT - SEE ABOVE) -- allegations the plaintiffs denied.

Congress acted to limit the potential liability of computer services for defamation with the enactment of the Telecommunications Act of 1996. In order to protect what are termed "good samaritan" services - ON LINE FREE DISCUSSION SUCH AS CHAT ROOMS AND DISCUSSION BOARDS - the law prevents a service from being treated as the publisher or speaker of any information provided by another content provider, and further precludes treating such a service as a publisher or speaker simply because it makes voluntary, good faith efforts to restrict other content providers from posting objectionable material, regardless of whether or not such material is constitutionally protected.

The cases that have come down since the enactment of the Telecommunications Act have afforded strong protection to on-line service providers.

The court found that the law was intended to insulate on-line service providers from precisely this type of liability, regardless of whether the case was framed as one of publisher liability or distributor liability.

A more problematic issue was raised by Blumenthal v. Drudge, 992 F. Supp. 44 (D. D.C. 1998). In this case, White House aide Sidney Blumenthal (A PUBLIC FIGURE) sued the well-known Internet gossip columnist Matt Drudge for allegedly defamatory comments about Mr. Blumenthal's alleged history of spousal abuse. Blumenthal also sued AOL. In this case, AOL was not simply transmitting Drudge's column, but AOL actually had a contract with Drudge in which it paid Drudge $36,000 per year for his column. The contract also gave AOL the "right to remove, or direct [Drudge] to remove, any content, which as reasonably determined by AOL . . . violated AOL's then-standard Terms of Service . . ." AOL also actively promoted Drudge's column.

Again, the court dismissed the case against AOL and no determination has yet to be made against Drudge.

First of all, all existing case law pertaining to defamation issues explicitly state that the action be brought in the jurisdiction in which the defamatory statement was "published" or rather where the "publisher" of the information is located. Since cyber-space is effectively "nowhere" - an autonomous zone, in effect - there exists the quandry of "where" such an action must be filed by the complainant.

Posters on discussion boards and chat rooms need to feel free from the fears of intimidation and legal threat so that they understand the parameters of what constitutes damageable and provable claims. MORE IMPORTANTLY, the purpose of discussion boards is an open forum where we can present our respective ideas and theories and facts as relates to the issues of many subjects. To do so under the yoke of censorship is anathema to me. To do so under the threat of legal action every time we voice our opinions, would impede any progress and we all might as well pack up, turn off the lights and go home. Though the information war still rages in this country (USA), there are certain constitutional rights inherent to us which are being chipped away daily. Still, standing law and case law on these matters hold constant and are narrowly interpreted by the courts and even further narrowly interpreted by juries.