Do you own a business that has been substantially harmed by unfair and untruthful on-line reviews? Or, are you an individual who has been unfairly dissed on-line?
Below, in an easy-to-read (i.e., I’m pretending not to be a lawyer!) question-and-answer format, is an overview of basic defamation (libel) law, including a clear discussion of constitutional and statutory privileges that may protect you. If you have more questions, be sure to talk to an experienced lawyer at George Law, (248) 470-4300.
What is defamation?
In general, defamation occurs when someone makes a false and unprivileged statement-of-fact that harms someone’s reputation “with fault”; i.e., meaning they made it as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.
How do I prove a defamation claim?
To establish that someone has defamed you, you have to show:
- the statement was published to someone other than yourself;
- the statement is a false statement of fact;
- that the statement is understood as
- being of and concerning the plaintiff; and
- tending to harm the reputation of plaintiff.
If you’re a public figure, you also have to prove actual malice.
Is truth a defense to defamation claims?
Yes. Truth is an absolute defense to a defamation claim. But proving truth can be difficult and expensive.
Can an opinion be defamatory?
No, but merely labeling a statement as “opinion” does not make it so. You have to think about how a “reasonable” reader/listener would understand the statement. Does it assert a statement of verifiable fact; i.e., can it be proven true or false?
You have to look at the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are more likely to be opinions or hyperbole. But they look at the remark in context to see if it’s likely to be seen as (i) a true opinion, even if controversial, such as “I really hate Taylor Swift’s new song,” or an assertion of fact masquerading as an opinion, such as “It’s my opinion that Bob is the football player who stole the beer.”
What is a statement of verifiable fact?
Very simply, can you verify the statement? A statement of verifiable fact is one that conveys a provably-false factual assertion. For example, that someone has committed murder or has cheated on his spouse. They are either true or false. For example, consider the following excerpt from a case (Vogel v. Felice – a California case; feel free to google it!) considering the alleged defamatory statement that plaintiffs were the top-ranking “Dumb Asses” on defendant’s list of “Top Ten Dumb Asses:”
A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.
This case also rejected a claim that the defendant linked the plaintiffs’ names to certain web addresses with objectionable addresses (i.e. www.satan.com), noting that “merely linking a plaintiff’s name to the word “satan” conveys nothing more than the author’s opinion that there is something devilish or evil about the plaintiff.”
Is there a difference between reporting on public and private figures?
Yes. If you (or your neighbor or the guy who walks his dog by the bus-stop) are a private figure and are claiming defamation, you only have to prove that the defamer acted negligently, which means that a “reasonable person” would not have published the defamatory statement.
But if you’re a public figure (are you a politician?), you have to show “actual malice”—that they published with either knowledge that it was untrue or in reckless disregard for its truth. Obviously, it’s not easy to meet this standard.
Are you a public figure?
A public figure is anyone who actively sought to influence the how a matter of public interest is resolved. But there are different types of public figures:
- Obvious public figures — a government employee, a senator, a presidential candidate.
- Limited-purpose public figures — one who (i) voluntarily participates in a discussion about a public controversy, and (ii) has access to the media to get their view across.
- Involuntary limited-purpose public figure — for example, a court held that an air-traffic controller on duty when a fatal crash occurred was an involuntary, limited-purpose public figure, due to their role in a major-public occurrence.
Who have been found to be public figures?
- A former city attorney and an attorney for a corporation organized to recall members of city counsel
- A psychologist who conducted “nude marathon” group therapy
- A land developer seeking public approval for housing near a toxic chemical plant
- Members of an activist group who spoke with reporters at public events
- Corporations are judged by the same standards as individuals
Remember – be careful what you say after organizing marathon-nude-therapy sessions!
What is a “fair and true report”?
A “fair and true” report captures the substance or gist of a proceeding. The report does not have to track verbatim the underlying proceeding, but it should not deviate so much as to produce a different effect on the reader.
If I write something defamatory, will a retraction help?
Maybe, but it depends on where you live. Some jurisdictions have retraction statutes that will protect you from a defamation lawsuit if you retract the allegedly-defamatory statement. For example, in one state, a plaintiff is limited to getting “special damages” — the specific monetary losses caused by the libelous speech – if they (i) fail to demand a retraction of a statement made in a newspaper, radio. or television broadcast, or (ii) demands and receives a retraction. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)
If you get a reasonable retraction request, it may help you to comply. The retraction must be “substantially as conspicuous” as the original alleged defamation.
What if I change the person’s name?
To state a defamation claim, the person claiming defamation need not be mentioned by name—the plaintiff only needs to be reasonably identifiable. If you defame the “government executive who makes his home at 1600 Pennsylvania Avenue,” it is still reasonably identifiable as the president.
Do blogs have the same constitutional protections as mainstream media?
Yes. The US Supreme Court has said that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”
What if I republish another person’s statement? (i.e. someone comments on your posts)
Generally, anyone who repeats someone else’s statements is just as responsible for the defamatory content as the original speaker — if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides some protection against liability for Internet “intermediaries” who provide or republish speech by others. Most cases have held that Section 230 precludes liability for an intermediary distributing defamation.
Can I get insurance to cover defamation claims?
Yes. Many insurance companies offer media-liability insurance policies designed to cover online libel claims. However, it could be too expensive for some, though just a cost of doing business for others. The last time I checked, the minimum annual premium was about $2,500 for a $1 million limit, with a minimum deductible of $5,000 (but insurance rates frequently change!). Moreover, the insurer conducts a review of the publisher, and may insist on certain standards and qualifications (i.e. procedures to screen inflammatory/offensive content, procedures to “take down” content after complaint, etc.).
Will my homeowner’s or renter’s insurance policy cover libel lawsuits?
Maybe; it depends on the policy and the carrier. Homeowner’s insurance policies, and some renter’s or umbrella-insurance policies, generally cover libel lawsuits, though they usually exclude punitive damages and liability related to “business pursuits.” This would, for example, generally exclude blogs with advertising. Read your insurance policy carefully, or have an experienced attorney at George Law, (248) 470-4300, review it to see what coverage it provides.
How long can I wait before I sue somebody for libel?
Most states have a statute-of-limitations on libel claims, which sets forth how quickly you have to sue somebody. Sometimes, such as when the defendant cannot be identified, a plaintiff has more time to file a claim. Most courts have rejected claims that publishing online amounts to “continuous” publication, and start the statute of limitations ticking when the claimed defamation was first published.
What are some examples of libelous and non-libelous statements?
The following are a couple of examples from real cases. A court found these to be libelous:
- charging someone with being a communist (in 1959);
- calling an attorney a “crook”;
- describing a woman as a call girl;
- accusing a minister of unethical conduct; and
- accusing a father of violating his son’s confidence.
A court found that these were not libelous:
- calling a political foe a “thief” and “liar” in chance encounter (because hyperbole in context);
- calling a TV-show participant a “local loser,” “chicken butt” and “big skank”;
- calling someone a “bitch” or a “son of a bitch”; and
- changing product-code name from “Carl Sagan” to “Butt Head Astronomer”
Do not take these examples as hard and fast rules about particular phrases – courts take the statements in context. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.
How do courts look at the context of a statement?
For a blog, a court would initially start with looking at:
- the blog’s general tenor;
- the blogs ’setting;
- the blog’s format; and
- the context of the links through which the user accessed the particular entry
After its initial review, the court would probably look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.
Context is critical. For example, it was not libel for ESPN to caption a photo “Evel Knievel proves you’re never too old to be a pimp,” since it was (in context) “not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment.” However, it would be defamatory to falsely assert “our dad’s a pimp” or to accuse your dad of “dabbling in the pimptorial arts.” (Real case, but the defendant sons succeeded in a truth defense!).
What is “Libel Per Se”?
When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se; a statement that falsely:
- charges a person with crime, or with having been indicted, convicted, or punished for crime;
- imputes in him the present existence of an infectious, contagious, or loathsome disease;
- tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; or
- imputes to him impotence or a want of chastity.
Of course, context can still matter. If you respond to a post you don’t like by beginning “Jane, you ignorant slut,” it may imply a want of chastity on Jane’s part. But you may be able convince a court this was mere hyperbole and pop-cultural reference, not a false statement of fact.
What is a “false light” claim?
Some states allow people to sue for damages that arise when others place them in a false light. Information presented in a “false light” is portrayed as factual, but creates a false impression about the plaintiff (e.g., a photograph of plaintiffs in an article about sexual abuse, because it creates the impression that the depicted persons are victims of sexual abuse). False-light claims are subject to the constitutional protections discussed above.
What is trade libel?
Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company’s chili (if it isn’t true).
Where do I go from here?
This blog is just a brief introduction of internet-defamation and libel law. If you have any questions, feel free to reach out an experienced attorney at George Law, (248) 470-4300. They are available 24-hours-a-day and 7-days-a-week. Plus, they would be happy to discuss your concerns.