Defamation of Character in the Internet Age
UPDATED: October 2, 2010
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The internet allows users to communicate better, get the news faster, and disseminate their opinions more widely than ever before possible. This also means that a blogger or commentator can assert something to a huge audience without regard to its truth, and often, without consequence. However, defamation laws do cover statements made online, so it is unwise to comment with abandon.
“Defamation of character” is a civil tort action (meaning it is a “wrong” that someone does to another person, who can then sue for damages). Defamation covers both libel (written defamation) and slander (spoken defamation). Though most cases involving defamation on the internet are libel, some are slander, such as those involving podcasts or YouTube videos.
A perpetrator of defamation makes a statement of fact about or against another person that is intentionally or negligently published. To be defamatory, the statement must harm the reputation of the victim or deter other people from dealing with the person. A statement of fact, in the defamation context, simply means that you are offering up the statement as if it were a fact, whether or not it is actually true or false. Opinions cannot be defamatory.
A statement is “published” when it is communicated to at least one other person besides the victim. If the statement is about a private person (someone who is not a celebrity or other public figure), the victim only needs to show that a reasonable person would not have made the statement.
What If the Statement Is True?
Truth is a defense to a defamation suit. This means that if the person being accused of defamation can prove that the statement he or she made is true, then the suit will be dismissed. There is no law against making truthful statements online, unless the action qualifies as an invasion of privacy (which is a subject for another day).
Statements about Public Figures
The law is slightly different if the person who is the subject of the statement is a public figure. Individuals considered public figures include national celebrities, government officials in important positions, or a person who is not necessarily nationally known but who has thrust himself into the spotlight to engage people’s attention or influence an issue.
If the victim is a public figure, he or she must show that the alleged defamer knew that the statement was false or entertained serious doubts as to the validity of the statement. In addition, the victim must prove the defamation actually is false, rather than the perpetrator having to prove that the statement is true as a defense.
What Kinds of Statements are Defamatory?
Statements that harm the reputation of the victim are defamatory. This means that the statement lowers the victim in the eyes of the community or deters the community from dealing with the victim. Some examples include an allegation of criminal activity (e.g. drug dealing or fraud) or serious sexual misconduct (e.g. adultery). Accusing another person of something that is incompatible with his or her profession can also be defamatory. For example, calling a lawyer illiterate, a soldier a coward, or a doctor a quack are statements that may be considered defamatory.
Protecting Yourself from a Defamation Suit
If you want to be sure you are not exposed to a lawsuit for defamation, you should always be certain that what you say on the internet is either true or wholly your own opinion. If you are not sure about something, do not state it as a fact. In addition, do not disguise a statement of fact as your opinion. Saying “I think…” or “It is my opinion that…John Doe is the one who robbed the bank” will not protect you from a lawsuit.
Even if you know what you are saying is true, think about how you would prove it. It is often expensive and time-consuming to prove that something is true. Though it is completely legal to exercise your first amendment right to free speech, it is also good to abide by the following rule: if you wouldn’t say it to the person’s face, don’t say it on the internet.