2. The Scenario
• After being the target of false statements
published online, a client seeking a legal remedy
or remedies consults an attorney
• Before proceeding with any type of legal action,
the attorney must determine several facts:
– Who (or what) is the client?
– Who (or what) published the statement at issue?
– What was published?
– Which venue (or venues) would hold jurisdiction in
this matter?
3. WHO (OR WHAT) IS THE CLIENT?
• A company or organization?
• A public figure?
• A private individual?
– Depending upon the jurisdiction, each of these
three types of potential plaintiffs in a defamation
claim faces a different evidentiary burden,
depending upon the statement at issue.
4. WHO (OR WHAT) PUBLISHED THE
STATEMENT AT ISSUE?
• An individual identified by name?
• An anonymous individual?
• An organization or company?
• Where did the statement appear?
– An online blog?
– An online social networking site?
– An online journal or news outlet?
– Was it written and printed, or was it spoken,
recorded, and posted as a video or MP3?
5. WHAT WAS PUBLISHED?
• Was it a false statement about the client?
• Could it be interpreted as an opinion?
• Did it disclose personal or proprietary information about the client?
• Did the statement harm the client’s reputation, or otherwise cause
injury?
• How widely did the statement circulate?
• Could another cause of action arise from the claim?
– Intentional infliction of emotional distress?
– Was it deceptive or otherwise fraudulent?
– Did it violate any disclosure laws?
– Was the statement either illegal or per se defamatory in the presiding
jurisdiction?
• Conversely, could the statement be entitled to legal protection?
• Finally—WHEN WAS THE STATEMENT PUBLISHED?
6. WHICH VENUE (OR VENUES) MIGHT
HOLD JURISDICTION IN THIS MATTER?
• Where is the plaintiff domiciled?
• Where was the statement published?
• If this is an interstate claim, should it be filed in the
state where the statement was published, or the
plaintiff’s home state?
• How might defamation statutory schemes between
states differ?
• Which states may be more receptive to defamation
plaintiffs (or defamation defendants) and why?
• Could any federal laws be implicated by the cause of
action?
7. HAVING COMPILED THESE FACTUAL
ELEMENTS, WHERE DO WE BEGIN?
• Exactly what is defamation, and how might
online defamation differ from other types of
defamation?
• What other causes of action may be available
for the plaintiff?
• What must a plaintiff be able to prove?
• What remedies are available?
• What defenses are available to a defendant?
8. WHAT IS DEFAMATION?
• http://www.law.cornell.edu/wex/defamation
• “Any statement, whether written or oral, that
injures a third party's reputation…The tort of
defamation includes both libel and slander.”
– Libel: “A method of defamation expressed by print,
writing, pictures, signs, effigies, or any communication
embodied in physical form that is injurious to a
person's reputation, exposes a person to public hatred,
contempt or ridicule, or injures a person in his/her
business or profession.”
– Slander: “A false statement, usually made orally,
which defames another person.”
9. IS ONLINE DEFAMATION LIBEL
OR SLANDER?
• It is libel.
• Although one could argue that a defamatory spoken
statement, recorded and posted to the internet, is still a
spoken, oral communication and thus slander, courts
have generally held that the broadcasting of recorded
speech constitutes publication, and thus defamatory
speech becomes libelous when broadcast. Courts have
also consistently held that internet publication
constitutes libel, not slander.
• Restatement (Second) of Torts (1977) § 568 “Libel And
Slander Distinguished” and 568A “Radio And
Television” discuss this.
10. ELEMENTS OF DEFAMATION
Identical for both libel and slander:
1. The statement “exposes a person to hatred, ridicule, or contempt, lowers
him in the esteem of his fellows, causes him to be shunned, or injures him
in his business or calling.” http://www.rcfp.org/first-amendment-
handbook/introduction-defamatory-communication-publication-falsity
2. The statement is false, yet purports to be fact.
3. The statement is published and/or communicated on a non-privileged
basis to a third person.
4. The subject of the statement is injured as a result of
publication/communication.
http://www.law.cornell.edu/wex/defamation
http://legal-dictionary.thefreedictionary.com/Libel+and+Slander
http://www.chillingeffects.org/defamation/faq.cgi
11. WHAT OTHER CAUSES OF ACTION MAY BE
AVAILABLE FOR THE PLAINTIFF?
• Depending upon the jurisdiction and other fact-based
elements, other available claims may include:
– Intentional or negligent infliction of emotional distress
– Tortious interference with contract or business relations
– "False light" invasion of privacy
– Unfair or deceptive trade practices
– Fraud or misrepresentation
– State or federal civil rights act violations
– Conspiracy to commit defamation
http://www.dmlp.org/legal-guide/other-falsity-based-
legal-claims
12. PER SE DEFAMATION
• Some jurisdictions find certain statements to be “per se defamation”,
meaning that injury is to the plaintiff is presumed. Typical types of per se
defamation:
– That the plaintiff suffers from “a loathsome disease”
• Often limited to sexually transmitted diseases
– That the plaintiff has engaged in criminal conduct
• Often limited to “crimes of moral turpitude”—i.e. rape, incest
– That the plaintiff “is not chaste”—sexual misconduct/promiscuity
• Often limited to female plaintiffs
• A FIRST-DEGREE MISDEMEANOR IN FLORIDA (§836.04)
– That the plaintiff’s professional credentials are fabricated, or his or her
professional conduct is dishonest or otherwise lacking in necessary skill
• Relates back to the plaintiff’s job or profession
• http://www.dancingwithlawyers.com/freeinfo/libel-slander-per-se.shtml
• http://www.wisegeek.com/what-is-defamation-per-se.htm
• http://www.dmlp.org/legal-guide/what-defamatory-statement
13. WHAT MUST A PLAINTIFF BE
ABLE TO PROVE?
In addition to the prima facie elements of defamation discussed earlier (falsity, publication,
culpability and harm) the plaintiff must prove:
1. That the defendant published the statement.
2. That the plaintiff is identifiable by the statement.
3. That at least one other person exposed to the statement understood the statement as defaming
the plaintiff.
4. That publication and/or communication of the statement was intentional and not inadvertent or
otherwise privileged.
5. Unless the statement falls into a type of defamation per se recognized by the presiding
jurisdiction, the plaintiff must prove actual injury as the result of the statement.
6. Finally, the plaintiff must prove the defendant’s culpability in the matter:
• PUBLIC FIGURE PLAINTIFFS MUST PROVE MALICE
• PRIVATE FIGURE PLAINTIFFS MUST PROVE NEGLIGENCE
http://www.law.cornell.edu/wex/defamation
http://legal-dictionary.thefreedictionary.com/Libel+and+Slander
http://www.rcfp.org/first-amendment-handbook/introduction-defamatory-communication-
publication-falsity
http://www.traverselegal.com/internet-defamation/defamation-libel-slander/
14. Public vs. private
• Applies to two aspects of defamation law:
– Is the plaintiff a public official and/or a public
figure, or a private citizen?
– Was the subject of statement a public concern or a
private concern?
• There are different evidentiary thresholds for
the various combinations of these two
elements.
15. Public figures and/or public officials
vs. private citizens
• Public figure
– A person of great public interest or fame
– Politicians, entertainers, athletes
– “Limited purpose” public figure—a person who has “thrust themselves to the
forefront of particular public controversies.”
– Involuntary public figures, i.e. people accused or convicted of, or otherwise
connected to, high-profile crimes.
• Public official
– Blacks Law Dictionary: Generally any individual either elected or appointed to
carry out some aspect of a government’s sovereign powers
• Private citizen
– Key distinctions between public and private individuals pointed out in Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974):
• Private individuals have not “voluntarily exposed themselves to increased risk of injury
from defamatory falsehood” and
• Private individuals do not have the same access to public media platforms—for purposes
of countering defamatory statements—that public officials and public figures have.
16. Public concern vs. private concern
• Public concern:
– A statement made about a public figure or public official OR
– A statement made about a private figure regarding events that are
public concerns
• Private concern:
– “Speech solely in the individual interest of the speaker and its
specific . . . audience.” Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 US 749 (1985)
– Is it possible for a defamatory statement about a public official to
be of a private concern? Perhaps, but not for purposes of
analysis. Statements about private concerns are still subject to
less First Amendment protection, while public plaintiffs still
must always meet a higher liability standard.
17. Public vs. Private Liability
• If the issue is of public concern:
– A public official/figure plaintiff has a higher burden of proof and must
show actual malice—that the defendant either knew of the falsehood or
acted with reckless disregard for the truth
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
– Private individuals need only show that the defendant was negligent
(although some states may require actual malice)
– Both public and private plaintiffs must prove the falsehood of the
statement
• If the issue is of private concern
– Evidentiary burdens vary by state law, but liability standard is
(presumably) at least negligence
– Certain statements of private concern may still be privileged, although
this is unlikely in the online context.
– State law also determines if the plaintiff is required to prove falsehood
or if the defendant is required to prove truth.
18. What remedies are available to a
plaintiff?
• Monetary damages? Maybe. State statutes vary, but the Supreme Court has chimed in on the issue:
– General damages: Awarded when reputational injury is presumed as the result of defamatory statement. In Gertz v.
Robert Welch, Inc., the Supreme Court limited this award to plaintiffs who were able to prove the defendant’s
“knowledge of falsity or reckless disregard for the truth.” 418 U.S. 323, 349 (1974).
– Special damages—Plaintiff demonstrates actual pecuniary loss proximately caused by the defendant’s defamatory
statement.
– Punitive damages—Again, Gertz restricts this to instances of “knowledge of falsity or reckless disregard for the truth.”
– Nominal damages—awarded when a statement is ruled false and defamatory, yet the plaintiff suffered no reputational
damage.
– See also: RESTATEMENT (SECOND) OF TORTS §§ 620-623
– In Florida: A plaintiff is only entitled to actual damages if the original statement was made in good faith and if the
defendant retracts the statement following guidelines set forth in §770.02
• Other remedies:
– Injunction removing the post or statement? In instances of online defamation, extremely impractical and likely
ineffective—once a post appears online, it is likely to remain indefinitely.
– Declaratory judgment—Plaintiff seeks a ruling that the statement was false, but no damages are awarded.
– Retraction—Many jurisdictions (including Florida) have retraction statutes. (More on this later.)
– “Right-of-reply”—The Supreme Court has ruled that this a violation of the 1st amendment. Miami Herald Pub. Co. v.
Tornillo, 418 U.S. 241 (1974).
http://www.callawyer.com/clstory.cfm?eid=928446&wteid=928446_Remedies_for_Web_Defamation
http://www.wcl.american.edu/journal/lawrev/30/hulme.pdf
19. What defenses are available to a
defendant?
• TRUTH IS AN ABSOLUTE DEFENSE AGAINST DEFAMATION
– Judges often grant summary judgment to defendants that can show that a statement contained
“substantial truth”.
– Burden to show truth is the defendant’s.
• Opinion privilege—the statement is not provable as either true or false
– However, an expressed opinion inferring defamatory falsehoods is not protected.
• Absolute privilege—unlikely in the context of a public internet posting.
• Conditional privilege—when absolute privilege is unavailable, defendant can still assert that a statement
was necessary to protect a personal or professional interest.
– Defendant had a good-faith reason to believe the statement was true
– Defendant had an interest in knowing the information in the statement AND
– Defendant only shares the statement with others who also have an interest in knowing the information
in the statement
• Lack of harm—as mentioned, except in cases of defamation per se, plaintiff has the burden to show
reputational and special damage. (Often entails a claim that the plaintiff’s reputation was already poor prior
to the statement.)
http://injury.findlaw.com/torts-and-personal-injuries/defenses-to-libel-and-slander.html
http://www.rotlaw.com/legal-library/what-is-the-privilege-defense-to-defamation/
http://www.traverselegal.com/internet-defamation/proving-defamation-of-character/legal-elements-of-
defamation/a-defamation-of-character-claim-requires-a-false-statement-of-fact/
20. JURISDICTION
• Defamation claims arise under state law
• With traditional media, the forum of publication generally had jurisdiction.
• If an internet defamation defendant is in a different jurisdiction, a court in
the plaintiff’s jurisdiction will employ a Calder effects test—determining
whether the defendant expressly targeted the forum or intended to harm the
forum. Calder v. Jones, 465 U.S. 783 (1984)
– In other words, establishing a internet defamation claim in the
plaintiff’s jurisdiction can still be difficult.
– Florida’s long-arm statute: § 48.193
http://www.callawyer.com/clstory.cfm?eid=928446&wteid=928446_Remedies
_for_Web_Defamation
http://www.avvo.com/legal-answers/what-state-has-jurisdiction-over-internet-
defamati-615820.html
http://euro.ecom.cmu.edu/program/law/08-732/Defamation/Bosky.pdf
21. OTHER JURISDICTIONAL
CONSIDERATIONS
• Criminal libel—Most states do not recognize this
– Florida does, in Chapter 836
• http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-
0899/0836/0836.html
• Statute of limitations—Check state law to make sure it has not run out!
– Single publication rule: S.O.L. begins to run upon publication, and only restarts if defamatory content is
substantially altered or republished to a substantially different audience. Not all states have this rule, but Florida
does—§770.07
– Florida also bars further action upon an judgment in any jurisdiction for the same defamatory statement —§770.06
– FLORIDA’S STATUTE OF LIMITATIONS FOR LIBEL/SLANDER IS TWO YEARS §91.11(4)(G)
• Notice and retraction statutes—Some states codify this
– Florida provides that both prosecutors in criminal libel cases (§836.07) as well as plaintiffs in civil actions
(§770.01) must provide the defendant with at least five-day written notice specifying the alleged defamatory
statement.
– Florida also limits recovery in a civil action if a defendant retracts a defamatory statement using guidelines found
in §770.02. However, this section does not provide any guidelines for the retraction of statements published on the
internet
• § 770—Florida’s chapter on libel:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-
0799/0770/0770.html
• Another guide to Florida defamation law: http://www.dmlp.org/legal-guide/florida-defamation-law
22. Anti-SLAAP Statutes
• 28 states offer potential defendants some form of protection against so-called “Strategic
Lawsuits Against Public Participation”—lawsuits, often defamation suits, filed in order to
intimidate and silence a party who has spoken out on a public issue. An anti-SLAPP motion
stays all discovery and forces a plaintiff to show that his or her case is both legally and
factually substantive. A prevailing defendant may recover legal fees from the plaintiff.
– California has a particularly strong anti-SLAPP statute, and by itself accounts for roughly
80% of all anti-SLAAP motions.
– A lack of uniform anti-SLAAP laws among states is said to encourage forum shopping.
– Florida has two comparatively narrow anti-SLAAP laws, protecting citizens from
SLAAP lawsuits from state government entities (§768.295) and protecting homeowners
from SLAAP lawsuits in response to “appearance and presentation” in matters relating to
homeowners associations (§720.304(4)).
http://www.anti-slapp.org/slappdash-faqs-about-slapps/
http://www.dmlp.org/legal-guide/responding-strategic-lawsuits-against-public-participation-
slapps
http://www.dmlp.org/legal-guide/anti-slapp-law-florida
23. FEDERAL LAW
• Two major protections offered for prospective
defamation defendants at the federal level:
– The U.S. Constitution, Amendment 1 (of course)
– 47 U.S.C. § 230(c)(1): “No provider or user of an
interactive computer service shall be treated as the
publisher or speaker of any information provided by
another information content provider.”
• Enacted as part of the anti-pornography 1996
Communications Decency Act, § 230(c)(1) was intended to
immunize internet service providers who deleted offensive
material from their websites.
24. WHY IS § 230(c)(1) SO IMPORTANT?
• The Supreme Court found the indecency provisions of the Act
unconstitutional in Reno v. Am. Civ. Liberties Union, 521 U.S. 844 (1997).
However, § 230(c)(1) remained.
• Courts interpret § 230(c)(1) as providing immunity for service providers
from liability for torts committed by third-party users—including
defamation.
– Invalidates the possibility of (for example) naming Facebook as a party to a
defamation claim arising from a Facebook post—and collecting damages from
Facebook’s presumably vaster financial resources.
• Providers do not waive § 230(c)(1) immunity by editing user content
• Providers found to have actually created the defamatory content found on
their own websites have been denied immunity
• https://www.eff.org/issues/bloggers/legal/liability/230
• http://www.dmlp.org/section-230
• http://blog.internetcases.com/2007/11/08/immunity-not-accurate-
description-for-47-usc-230-protection/
25. Does § 230(c)(1) also serve as de facto immunity for parties
using these providers to publish anonymous defamatory
statements?
• Not necessarily—a plaintiff may file a John Doe lawsuit, and then seek a court order requesting relevant information about
anonymous users—e-mail and IP addresses, etc.—from the provider.
– Provider then required by federal law (47 U.S.C. § 551) to notify the user of the subpoena
– User may then file a motion to quash the subpoena.
• This is still an evolving area of case law, but courts do tend look favorably upon a plaintiff who:
– Engages in “best efforts” to provide the anonymous user with notice of the discovery request (through e-mail, public
message board posts, etc.) and
– Is able to present substantive proof of the underlying defamation claim
– Doe v. Cahill, 884 A.2d 451 (Del. 2005) is the leading decision addressing this standard.
• Even after acquiring requested user information from providers, identity of the defendant may be difficult to ascertain.
– Data can technical in nature, requiring forensic digital analysis
– Defendant might be only one person out of several or many using a particular IP address.
• Finally, legal protections for anonymous speech can vary from state to state. An online guide: http://www.dmlp.org/legal-
guide/state-law-legal-protections-anonymous-speech
• Other articles discussing this:
– http://www.firstamendmentcenter.org/online-anonymity-no-sure-thing-in-libel-cases
– http://cyberdefamationlawyer.com/defamation-investigation/
– http://tcattorney.typepad.com/digital_millennium_copyri/2011/10/defamation-on-the-internet-the-constitutional-right-
to-post-anonymously-michigan-court-will-decide.html
– http://www.dmlp.org/legal-guide/legal-protections-anonymous-speech
– http://www.syversonlaw.com/Internet-Law/Anonymous-Internet-Defamation.shtml
26. So…should the client proceed with the
case?
• Other non-legal factors to consider:
– Attempting to completely remove material from the
internet forever can be futile.
– Identifying the author of anonymous statements can be
time-consuming, costly, and not necessarily even possible
– There are companies that offer to provide an “extra-legal
solution”—a service which purports to “push down”
unwanted websearch results.
• One final consideration: “The Streisand Effect”
– Occurs when legal action taken to remove or hide online
content results in publicity which serves to focus public
attention upon the material at issue.
27.
28. “The Streisand Effect”
• The California Coastal Preservation Project maintains an
online archive of 66,000 aerial photographs of the
California coast.
• In 2003, singer Barbra Streisand sued the project’s
photographer for invasion of privacy. At issue was a single
photograph of her Malibu mansion. She sought monetary
damages as well as an injunction removing the photo from
the website.
• In the three months prior to the lawsuit, the photograph at
issue had been downloaded six times—twice from an IP
address used by Streisand’s law firm.
• Within a month following Streisand’s initial filing, over
420,000 people had viewed the photograph of her home.
29. “The Streisand Effect”
• The defendant in the case filed an anti-SLAAP motion—
which was granted.
• Streisand was then ordered to pay the defendant
$177,107.54 in legal fees.
• Ten years later, the image at issue may still be viewed at
http://www.californiacoastline.org/cgi-
bin/image.cgi?image=3850&mode=sequential
• And yes, the phenomenon has now been recognized as “The
Streisand Effect” by scholars.
• Other sources:
http://www.californiacoastline.org/streisand/lawsuit.html
• http://www.californiacoastline.org/news/sjmerc5.html
• http://en.wikipedia.org/wiki/Streisand_effect
30. Conclusions
• Defamation actions arising from online statements are fact-intensive, and
should not proceed merely as a result of a plaintiff’s anger over a particular
statement, or a desire to censor a particular statement , but to recover
damages proximately caused by the statement.
• A defamatory statement posted online is unlikely to “go away forever”,
even after a judgment ruling it as defamatory.
• Identifying an anonymous defendant can be difficult, costly, time-
consuming and even impossible.
• Available damages are only one aspect of a defamation claim which may
vary by jurisdiction.
• However, as with all aspects of the law relating to digital technology,
online defamation law is still in something of an evolutionary process.
Concerns over 47 U.S.C. § 230(c)(1), as well as concerns about forum-
shopping in an age of global communication and non-uniform state codes,
may well spur statutory reform.
31. Further Research
• As online expression has become ubiquitous, so too has concern
over online freedom of expression. Plenty of free resources are
available discussing all of the elements of online defamation.
• The best search term to employ to reach legal discussion is
“defamation” (as opposed to “libel” and/or “slander”), which
immediately filters away almost all non-scholarly material.
• A straight Google search of each element of defamation, paired with
the word defamation, will narrow the search considerably:
– “public private figure defamation” (no quotes)
– “public private concern defamation” (no quotes)
– “jurisdiction defamation” (no quotes)
– “anonymous defamation” (no quotes)
• An especially helpful free online resource is the Digital Media Law
Project. Their section on defamation: http://www.dmlp.org/legal-
guide/defamation
32. Two final notes:
• This project focused almost exclusively on online defamation. There are other
possible causes of action resulting from online communications, many of them
criminal in nature, which are not discussed herein as they are typically not falsity-
based. These include:
– Stalking
– Harassment (including sexual harassment)
– Bullying
– Threats
– Extortion
– Incitement to violence
– Invasion of privacy
– Improper disclosure of material, nonpublic financial information to selected individuals ahead
of the general public. (Yes, the SEC has investigated Facebook posts.)
• This project was completed on July 16, 2013. As any legal issue relating to the
internet is likely to evolve as rapidly as any underlying technology, the near or
distant future reader should be advised to corroborate information contained herein
with a more recent source.
