Defamation is defined by state laws, which vary from state to state. Generally, defamation is defined as a false, published statement, which harms someone’s reputation. It is these three elements: Falsity, Publication and Harm, which qualify a statement as defamatory. Written defamatory statements are referred to as Libel, and spoken defamatory statements are referred to as Slander. While online and offline defamation are treated the same there are a few subtleties to online defamation that do not directly apply to offline defamation. To appreciate these subtleties, it is important to understand defamation in general.
Publication simply means that the statement was understood by a third party other than the defamer or the defamed. It only takes one other person to understand the statement to find liability. If the person alleging defamation is the one relaying the false statement to the third party, however, that does not constitute publication. “Qualified” and “Absolute” privileges prevent certain kinds of statements from being defamatory publications. In certain instances, these privileges allow a lawyer to make statements in the context of a court proceeding or a crime victim to make a statement to a police officer without being found liable for defamation.
The First Amendment to the U.S. Constitution grants an “opinion privilege.” While the opinion privilege carves out wide protection, simply adding “It is my opinion that . . .” in front of an otherwise defamatory statement does not insulate the defamer from liability. The privilege protects only two types of speech: 1) that which is not “capable” of being proven false; and 2) that which cannot reasonably be “interpreted as stating actual facts” about the plaintiff.
The first type of protected opinion relates to assertions such as calling someone a “Butthead“ or opining “due to ongoing financial pressures, the outlook for ABC Corp. refunding its bond is negative.” How could you possibly prove these statements false? If it is not false, it is not defamation. The second type of protected opinion relates to statements that “appear” to relate to specific facts, but which cannot reasonably be “interpreted as stating actual facts” about the plaintiff. Even if the defamer uses terms like “blackmail” and “traitor” there is no defamation if the statement is clearly satirical. This privilege goes so far as to protect Larry Flynt printing an ad parody of Jerry Falwell having sex with his own mother in an outhouse was found by the courts to be clearly related to rhetorical hyperbole, or use in a loose figurative sense. Regardless of how inappropriate the publication might have been, it was not defamatory.
Although damages are presumed in most types of defamation cases, proving evidence of actual damage often increases the eventual monetary award. Damages in a defamation case can be shown through a detailed description of the victim’s prior reputation and the extent to which the defamatory statement was distributed. Associated damages may include loss of income, emotional distress, physical pain and suffering, medical bills for mental anguish, humiliation and embarrassment.
In some instances, such as when the victim is a public figure, or when you are seeking punitive damages, you do have to prove actual malice. Actual malice typically means that the statement is either made with knowledge that it is false or with reckless disregard for whether or not it is false.
Blogs and other forms of social media are treated the same as other forms of main stream media. In the real world, individuals are just as liable as the defamer if they repeat a statement they know is defamatory. In the online world however, Section 230 of the Communications Decency Act grants bloggers a little wiggle room. Section 230 states that providers of interactive computer service are not treated as “publishers” of any information provided by a third party. This applies to guest posters, comments, forum posts et cetera. This immunity, however, does not relate to information selected or edited by the blogger, or to other claims, such as intellectual property infringement.
Avoiding a Lawsuit
Defamation often incites plaintiffs to bring cases they might not otherwise bring. Even if the case is difficult to prove and the damages small, plaintiffs often bring defamation cases to vindicate what they see as a moral wrong. Avoiding a lawsuit for defamation involves much more than following the foregoing rules. It involves assessing the “victim” to determine if they are someone who might bring a defamation suit regardless of whether or not the law is on their side. In terms of bringing a suit for defamation, it is important to assess whether the lawsuit will cause more harm than good in drawing attention to an esoteric blog post no one would otherwise have read. In both instances, discretion is the better part of valor.