Defamation, by libel or slander, is a fairly well defined tort by ample case history with respect to printed and spoken misrepresentations which are injurious to another.  In the fast evolving and nebulous realm of on-line statements, however, the judicial decisions have been hard pressed to keep up, and render clear guidelines.  Nevertheless, there are salient characteristics which identify instances of defamation on the Internet.

Reputation
 

(From http://www.californiadefamationlawyersassociation.com/)
 
In my cursory research of this topic, I came upon the above referenced professional association, as well as the blogs of Aaron Morris.  Mr. Morris is a partner with Morris & Stone LLP, a law firm located in Orange County, California.   He is currently the president of the California Defamation Lawyers Association.  He also works as an Adjunct Professor at Whittier Law School in Costa Mesa, California, From one of his blogs on the topic, were the following remarks on how most defamation cases are handled without needing to go to court.

"Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.

"That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path."

Mr. Morris goes on to say the following with regards to one particular case which ultimately involved an award of monetary damages.
 

Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000 (From the site, http://internetdefamationblog.com/).

"Sticks and stones may break my bones,
But names can really hurt me."   

-- Anonymous variation on a children's rhyme, underscoring the potential severity of libel and slander.

The legal concept of defamation has existed so long as people have had reputations to protect, and laws which afforded those protections.  One can be liable for the misstatements one makes of others, particularly for those which expressed in publications.  Laws and case history with respect to the general issue of defamation are well entrenched.  It is in the relatively new, nebulous, and shifting arenas of our on-line discourses and assembly where precedents in case law are not as readily applicable or clearly salient.

The following working definition of defamation is offered by Wikipedia (cf. http://en.wikipedia.org/wiki/Libel_and_slander).

"In law, defamation (also called calumny, libel (for written words), slander (for spoken words), and vilification) is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

"In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism.

"False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being." 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."

Elsewhere in his blogs, Aaron Morris makes the following remark about defamatory speech, or slander.

"Defamatory speech is never protected, but that must be kept in context.  For example, if Joe Citizen falsely testifies during a trial that the plaintiff cheats on his taxes, Joe can never be prosecuted for defamation for that speech.  In that instance there is no defamatory speech that is being protected because the speech by definition is not defamatory. Defamation requires a false, unprivileged statement. Comments made in court are privileged, and hence the statement cannot constitute defamation. " (http://internetdefamationblog.com/?cat=3. My apologies for bold typeface; the editor will not remove it despite my requests).

A critical feature of libelous defamation is that it be published.  In the case of books, magazine and newspaper articles, this is long established.  However, in the area of Internet publication, it has not always been clear to its authors that they are indeed publishing content which could be potentially libelous.

"To publish is to make content publicly known. The term is most frequently applied to the distribution of text or images on paper, or to the placing of content on a website."  (From http://en.wikipedia.org/wiki/Publication; though an excerpt from Black's Law Dictionary would be better to cite).

"The Internet has drawn much attention and discussion in regard to issues and shortcomings relating to current libel and defamation laws. Many of these laws are currently undergoing review, as many tenets of existing codes do not address certain fundamental questions and implications that the Internet raises about the nature and enforceability of defamation safeguards."  (From http://www-cs-education.stanford.edu/classes/cs201/Projects/ defamation-and-the-internet/)

However much this is the case, the essential applicability of defamation laws to postings on blogs is fairly clear.  For blogs, unlike say chat room conversations, are essentially published works, akin to articles in newsprint.  The fact that they may be casual in temperament does not detract from the severity of their liability.  One must therefore be cautious in making libelous remarks in blogs.


Site Liability

A critical question in pursuing recourse in any Internet defamation case is the potential culpability, legal and financial liability of the system administrators for the site upon which the defamation occurred. Here there appears to be no solid consensus, and in consequence, much of these questions are still being negotiated in courtrooms and attorneys' settlement conferences, rather than by established precedents of case decisions.

In defamation law for print and broadcast media, liability is sometimes considered to extend beyond the defamer himself (for instance, the writer of a libelous newspaper column) to the "publisher" of the material (in the previous example, the newspaper running the column). The idea of holding publishers responsible for libelous material in traditional media has been thoroughly tested and defined in court; there are clear precedents for determining who is liable for defamatory statements in these media. On the Internet, however, such issues are considerably more nebulous. (Stanford: http://www-cs-education.stanford.edu/classes/cs201/Projects/ defamation-and-the-internet/sections/liability/index.html)

Morris, however, begs to differ, at least in some better defined instances.

"If a website is created that allows visitors to post their comments, under the Communications Decency Act the host of that website cannot be held liable for any defamatory remarks that others post. 

"The law is very black and white in this area.  The myth still continues among the public that if the defamed party makes the website operator aware of the defamatory material, he somehow becomes liable for failing to take it down.  That is simply not true..."

In Morris' remarks, however, the applicability of his comments rests upon the definition of "visitors."  In thoughts.com, for example, we have members of the site, who agree to its Terms of Use, and are able to post comments to a blog, but then we have many more visitors, who are not members, but are able to read, yet not comment upon, blogs.  Critical here is whether thoughts.com would be seen as a site which allows "visitors" to post comments, or one which only allows visitors to read content, restricting comments to "members."

The following excerpts are from our site's Terms of Use.

PROHIBITED CONTENT

Thoughts.com reserves the right to take appropriate actions regarding prohibited content which include, but are not limited to, removing prohibited entries, terminating user's and accounts from which prohibited content originates and taking appropriate legal action when circumstances warrant doing so. Not limited to the provisions below, prohibited entries include content that:

1. promotes explicit hatred, racism or harm against any person or groups of people;
2. directly or indirectly harasses another person
3.  
4.  
5.  
6.  
7. promotes illegal activities of any kind or is defamatory, injurious, indecent, intimidating, false and/or misleading;

NOTE:  The author is not an attorney, simply a precocious character.  For any meaningful opinion on this subject, one would do well to consult an actual attorney, such as one from the California Defamation Lawyers Association listed above.




© 2009, David Shaw Bass, davidshawbass@gmail.com