This document discusses defamation on the internet. Defamation requires a false statement that harms another's reputation, published without privilege to a third party, with at least negligence. It occurs through libel (published words) or slander (spoken words). While internet service providers are not liable for others' statements under the CDA, anonymous posters can potentially be identified in lawsuits. The rules for defamation online raise issues around editors, corrections, and defining who is a journalist. Relevant cases establish protections for public discussion and limits on internet company liability.
2. What is defamation?
This restaurant sucks. The owner is a huge jerk, the
servers were rude, and the food tasted terrible.
This restaurant sucks. The owner beats his employees,
the server charged us double for the bottle of wine, and
the shrimp gave me food poisoning.
8. Defamation
• False and defamatory statement concerning another
9. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
10. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
11. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
• Posted in public forum, told a friend
12. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
• Posted in public forum, told a friend
• Fault amounting to at least negligence on the part
of the publisher (for public figures, must involve
actual malice)
13. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
• Posted in public forum, told a friend
• Fault amounting to at least negligence on the part
of the publisher (for public figures, must involve
actual malice)
• Didn’t do my research, or even wanted to hurt
restaurant’s business
14. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
• Posted in public forum, told a friend
• Fault amounting to at least negligence on the part
of the publisher (for public figures, must involve
actual malice)
• Didn’t do my research, or even wanted to hurt
restaurant’s business
• Causing special harm
15. Defamation
• False and defamatory statement concerning another
• “The owner of 550 Grill beats his employees”
• Unprivileged “publication” to third party
• Posted in public forum, told a friend
• Fault amounting to at least negligence on the part
of the publisher (for public figures, must involve
actual malice)
• Didn’t do my research, or even wanted to hurt
restaurant’s business
• Causing special harm
• Lost half his revenue--but in this case, don’t
need proof; crime is defamation per se
16. Defenses
• (Substantial) truth
• I have proof he beats his employees
• Opinion
• “He’s such a jerk I wouldn’t be surprised
if he beats his employees”
• Assertions less likely to be taken as fact
online?
17. You Can’t Sue the
Messenger
• Communications & Decency Act, § 230
• Internet service providers aren’t liable for
statements posted by others through their
service
18. What if I post as
“JaneDoe”?
• Can a plaintiff subpoena your
identity from an internet
service provider?
• Strategic Lawsuits Against
Public Participation (SLAPP)
19. Should the rules for the
Internet be different?
• Editors?
• Instant corrections/retractions
• Ability to rebut offensive speech
• Faster dissemination
• What is the press? Who is a journalist?
• Longer or shorter memory?
20. Relevant Cases
• New York Times Co. v. Sullivan (1964)
• Times ran an ad placed by civil rights activists that contained inaccuracies
about police actions. Sullivan was the police commissioner of
Montgomery. Supreme Court reversed Alabama Supreme Court’s
$500,000 award to Sullivan, and limited future libel suits brought by
public officials against the media, prioritizing the First Amendment.
• Zeran v. America Online Inc. (1997)
• Zeran argued that AOL didn’t remove defamatory messages by
anonymous poster fast enough; Supreme Court ruled that AOL was
protected by CDA
• Doe v. 2TheMart.com (2001)
• Court adopted four-part test to determine whether to issue a civil
subpoena that seeks the identity of an anonymous Internet user (good
faith, info sought is related to core claim, identity is directly relevant to
claim, info is unavailable from any other source)
21. References
• Creech, Kenneth C. Electronic Media Law and Regulation. 4th ed. San
Francisco: Focal Press, 2003.
• Internet Defamation Law Blog. Nissenbaum Law Group, LLC. 21 Feb. 2012.
<http://www.internetdefamationlawblog.com>
• “Online Defamation Law.” Legal Guide for Bloggers. Electronic Frontier
Foundation, n.d. 21 Feb. 2012. <https://www.eff.org/issues/bloggers/legal/
liability/defamation>
• Reich, Jarrod, and Bill Kenworthy. “Online Libel.” First Amendment Center. First
Amendment Center, May 2007. 21 Feb. 2012. <http://
archive.firstamendmentcenter.org/speech/internet/topic.aspx?
topic=online_libel>
• Schachter, Madeleine. Law of Internet Speech. 2nd ed. Durham, NC: Carolina
Academic Press, 2002.
