So, is a competing salon owner posting libelous statements about your business all over their blog? Or is your ex-employee smearing your name all over Facebook? Or is it an anonymous troll stating a whole lot of lies as if they’re facts without having any proof to back up their claims? Whatever is going on, it’s hurting you and your business and you need to put an end to it.
Punishing cyber defamation can be complicated, but it is possible. Just last year, Rhonda Lesher won a cyber defamation case and was awarded $13 million dollars. To successfully handle and cease these attacks against your character or your business, you need to have a basic understanding of what constitutes cyber defamation and the statutes that address it. Then, you need to plan a course of action. Hopefully, this post will help the victims out there get their bearings and have a better idea of where they stand.
What is defamation?
Defamation is the publication or broadcast of any libelous or slanderous statement about an individual or business that can be proven to be false and is published or spoken with the intention of harming that entity’s reputation. Online defamation is the publication or broadcast of such statements made on any internet based media including blogs, forums, websites, podcasts, videos, and social networking sites.
In light of the increase in libelous comments, governments, judges, and courts around the world have extended their own laws and regulations to include comments made online. Now, the same defamation laws and regulations stand for online defamation as they do in any form of media. Judges and courts will consider each statement or comment accordingly to ascertain whether or not it an expression of personal opinion or a defamatory comment.
Cyber defamation is actually worse than any other form of defamation, since unlike comments made in newspapers and even on the TV (which have a limited shelf life), those made on the web can remain on the site where they were first added for many years. They can also be perpetuated through other blogs and websites, remaining cached in search engines for many years after that.
Similar to defamation is “public disclosure of private facts.”
When one person reveals information that is not of public concern, and the release of which would offend a reasonable person, action can be taken against them for public disclosure.
Unlike with libel, truth is not a defense for invasion of privacy.
To prove a case of public disclosure of private facts, the plaintiff must prove a highly offensive disclosure by the defendant of private facts about the plaintiff. Any facts that are already known or that are a matter of public record cannot be the basis of a cause of action. The disclosure must also involve some measure of publicity. These private facts must be communicated either to the public or to enough people that it is likely to reach the general public.
In addition, the plaintiff must demonstrate:
1.) The information was not “newsworthy.” No legitimate public interest was served by having these private facts disclosed. In the event that the defendant published private facts about the plaintiff that involve a legitimate public interest, the plaintiff will not have a viable cause of action.
2.) that the defendant was at fault for making the disclosure, and
3.) that the defendant’s actions were both the actual and proximate cause of the disclosure and of the harm the plaintiff suffered.
False light laws protect against statements which are not technically false but misleading. False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being” rather than protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about true or false. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.
What about the first amendment?
Many internet users believe that they are free to say and do as they like, citing their first amendment rights to free speech without realizing that there is a difference between speaking personal opinions freely and defaming a person or business unlawfully. For example, it is an opinion that someone acts overtly provocative. It is defamation to claim that person is sexually promiscuous and definitely has multiple venereal diseases based solely on their overtly provocative behavior.
Libelous comments cannot be thinly veiled as personal opinion.
Unless you can prove that both of those claims are true with definitive, tangible proof (like STD tests and video evidence of wanton sexual activity), you’re committing defamation.
How do I prove defamation?
1.) You must prove is that the statement constitutes a false statement of fact. A fact is different than an opinion. A fact can be proven true or false. Opinions are not defamation.
2.) The false statement of fact must harm your reputation. In order to constitute libel, a statement must not only be false but must harm you or your company’s reputation and cause harm.
3.) The false statement of fact causing harm must be made without adequate due diligence or research into the truthfulness of the statement or with full knowledge of its falsity.
I know for a fact I’m a victim of defamation! What do I do?
If your attacker is anonymous, secure the services of a cyber investigation firm. In your case, early investigative work is critical to the success of your lawsuit. The investigation firm can find the residence, name, and phone number of your attacker. In doing so, they may also be able to have the content removed from the attacker’s website.
If you know full well who the attacker is, find a lawyer that specializes in cyber defamation.
What if I can’t afford a laywer or an investigator?
Let’s face it, legal drama can get really expensive. Cyber defamation cases in particular can get extremely expensive. Here are some things for you to try before you consider finding a lawyer.
1.) Send a Cease and Desist letter, certified. If the person defaming you is someone you know, secure their home or business address and send them a certified letter asking them to remove the defamatory comments and immediately cease and desist to avoid legal action. Let them know that you are in no way going to allow the behavior to continue. Defamation is a crime and it is punishable.
2.) Inform the administrator of the website that the defamatory content is posted on. Most sites have a way to report abuse. In the absence of that, contact the administration of the site or the hosting company. Let them know that one of their customers/users is violating the law by publishing defamatory material and that by allowing that content to remain on their service, they are partially responsible for it. Section 230 of the Communications Decency Act of 1996 (CDA) deals with the question of an ISP’s liability to content that is stored on their servers. It contends that an ISP is not responsible for the information published by their users unless and until they are informed of any infringement; at this point, the ISP should act to remove the content or face legal action themselves. Numerous court cases and other actions have led to ISPs being forced to remove content from their servers and provide personal details including the IP address of known offenders.
Some ISPs will act quickly to remove defamatory content from their servers because once informed of its existence they are also considered guilty of defamation to some degree.
Statute of Limitations
A statute of limitations does exist for online content. While these statutes do differ in some states, the most common statute lasts for a period of twelve months. This period starts from when the comment is first posted online.
Are you guilty of defamation if you post links to the defamatory material or cite it on your website?
No. When analyzing this type of scenario, courts consider two important legal doctrines: the “single publication rule” and the “doctrine of republication.” Under the single publication rule a defendant is considered to have published the material only if he or she is the original publisher.
An exception to the single publication rule is the doctrine of republication which states that republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations. Although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication.
There’s so much more information to be shared on this topic, but I’m not about to write a book on it. If you have any questions you need assistance with, please ask in the comments!