What To Do If You’re Defamed On The Internet

Guest post by Dave Owens, an attorney who lives in the San Francisco Bay Area.internet defamation

Mark Twain famously said, “A lie can travel halfway around the world while the truth is putting on its shoes.” With the Internet, a lie can now literally travel around the world multiple times before the truth even begins surface. By then your reputation could already be severely damaged.

The Internet has changed the way our society creates and consumes information. Before the Internet, only a few select companies created and distributed a majority of the information.

Now the Internet enables everyone to publish information (often without the guidance of an editor). While this has mostly benefited the public, it has also resulted in unprecedented defamation.

Here’s What You Need To Know About Defamation

Defamation Defined

Defamation is a published, untrue statement that damages your reputation (there is also a privacy tort called false light, which is very similar to defamation).

What constitutes being “published?” The statement must be made to a third party. It’s not defamation if the statement was made to you and only you. So, if someone makes a statement to you via email, it would not be considered defamation. But if they made the same statement in an email, but CC’d another person, it would be considered defamation.

What constitutes an “untrue statement?” You can’t sue someone simply because you don’t like the statement. To do so would be contrary to the principles of free speech. Truth is an absolute defense to a defamation claim.

For instance, if you served a prison sentence years ago and are now operating a business, you couldn’t then sue someone if they posted a review on Yelp that claimed that an ex-criminal ran the business.

Moreover, simple name-calling, hyperbole, and/or opinion will most likely not be considered defamation. The fact that someone called you an idiot or the worst chef in the world will not be sufficient to prove defamation.

There Is A Higher Standard For Matters of Public Concern

There is a higher standard for statements that deal with matters of public concern (which some courts define broadly) and for statements regarding public figures/officials. For matters of public concern, you must prove that the statement was indeed false and that the defendant was negligent in making the statement.

Public figures or officials must prove that the defendant maliciously made the statement (in New York Times v. Sullivan the Supreme Court defined this as knowledge that the statement was false or reckless regardless as to whether the statement was false).

Statements About Your Business Held to Higher Standard As Well

The statement might not be directed towards you. Instead it might be directed towards your business. The Supreme Court has held that a plaintiff has a higher standard to meet in these situations. Like a public figure, you must prove that the defendant maliciously made the comment.

You Must Prove The Statement Caused You Damage

You will also have to prove that the statement caused you damage. Damages are presumed for some forms of defamation, including libel (written or printed form of defamation) and slander (spoken defamation) concerning your conduct in your business or profession, a loathsome disease (e.g., AIDS), or crimes of moral turpitude (e.g., accusing someone of being a child molester).

You should look into how courts in your jurisdiction have handled similar matters before proceeding. Ultimately, it might not make emotional or financial sense to litigate.

Find Out What To Do If You’re Defamed On The Internet

Can I Sue The Website?

You may be angrier at the website than the person who made the comment. Unfortunately you probably won’t have any legal recourse against the website. Section 230 of the Communications Decency Act immunizes websites for content that was provided by third parties.

This means that you can’t sue Yelp because someone posted a defamatory review of your business. Nor can you sue Facebook because someone used the website to spread defamatory rumors about you.

You will only prevail if you can show that the website administrator was an active participant in the illegal conduct.

Contact The Internet Service Provider

Upon discovering the defamatory comments, you or your attorney should contact whoever operates the website. Most professional websites list their general counsel and have procedures in place to handles these situations.

Section 230 of the Communications Decency Act allows a website operator to remove material without being sued by the person who made the statement. Courts have also held that a website operator may make slight edits without losing immunity. A website may comply to avoid unnecessary litigation and to preserve the integrity of the website.

Who Can I Sue?

You can sue the person who actually made the defamatory statement. Of course, you may not know who made the statement. A lot of speech on the Internet is anonymous. The way to retrieve the person’s identity is to sue “John Doe” and subpoena the website to obtain the person’s name and account information.

But prepared for a long legal battle. Courts have been reluctant to allow such subpoenas out of the fear that individuals could use the legal process to find out the identities of people who are critical of them and thus effectively chill free speech.

Most states have required a plaintiff to first state a prima facie case (in other words, to prove all elements of the claim) before forcing the website to reveal the defamer’s name and account information. Since this area of law has not yet reached its formative stages, you should review how courts in your jurisdiction have handled similar matters before pursuing this route.

Dave Owens is an attorney based in the San Francisco Bay Area.  He can be reached at [email protected]

Photo credit: Flickr/stuartpilbrow