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August 2009 (17) Online Defamation Law The mandates of Moral Theology outrank any civil law definitions and limitations. As Christians we are obligated to follow God’s law on issues of detraction, rash judgment, and calumny regardless of what civil law may determine. The following are excerpts from an article by the Electronic Frontier Foundation The Bloggers’ FAQ on Online Defamation Law provides an overview of defamation (libel) law, including a discussion of the constitutional and statutory privileges that may protect you. What is defamation? Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published with fault, meaning 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. What are the elements of a defamation claim? The elements that must be proved to establish defamation are:
1. a publication to one other than the person defamed; 2. a false statement of fact; 3. that is understood as
* a. being of and concerning the plaintiff; and * b. tending to harm the reputation of plaintiff. 4. If the plaintiff is a public figure, he or she must also prove actual malice. Is truth a defense to defamation claims? Yes. Truth is an absolute defense to a defamation claim. But keep in mind that the truth may be difficult and expensive to prove. Can my opinion be defamatory? No—but merely labeling a statement as your opinion does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of 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 highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it’s likely to be seen as a true, even if controversial, opinion (I really hate George Lucas’ new movie) rather than an assertion of fact dressed up as an opinion (It’s my opinion that Trinity is the hacker who broke into the IRS database). What is a statement of verifiable fact? A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. Is there a difference between reporting on public and private figures? Yes. A private figure claiming defamation—your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop—only has to prove you acted negligently, which is to say that a reasonable person would not have published the defamatory statement. A public figure must show actual malice—that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet. Who is a public figure? A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures—a government employee, a senator, a presidential candidate—someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure—for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence. Examples of 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 not always public figures. They are judged by the same standards as individuals. 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. So 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 their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. What are some examples of libelous and non-libelous statements? The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false):
* 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 * Accusing a father of violating the confidence of son 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 * Changing product code name from Carl Sagan to Butt Head Astronomer Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. 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 likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would 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 any 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 in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; * 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 have a good chance of convincing 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 (i.e., 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.

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