If you determine that filing an online defamation lawsuit is right for you and your online defamation issue, there are several key pre-lawsuit filing requirements, pleading considerations, and strategy decisions that you and your attorney should follow, such as:
- Providing proper notice to a defamation defendant;
- Drafting the defamation complaint with considerations in mind;
- Exploring alternative claims to defamation;
- Determining the correct (and most beneficial) jurisdiction to file your suit in;
- Proving defamation damages; and
- Avoiding the Streisand Effect.
Filing an online defamation suit involves much more than just putting pen to paper. One slip up could lead to drawing unwanted attention to your online defamation issue (known as the “Streisand Effect”), having a case penalized or dismissed, or obtaining inadequate relief and remedy.
Defamation Pre-Lawsuit Filing Requirements
Before filing an online defamation lawsuit, it is crucial to check your state’s respective pre-lawsuit filing requirements to determine whether there are any key rules or “booby traps” to watch out for (and follow). Pre-suit filing requirements and formalities can generally be found on your respective state’s judicial website.
For example, if you live in New Hampshire, you can find relevant pre-lawsuit filing requirements over at https://www.courts.state.nh.us/.
There is one particular pre-lawsuit filing requirement that all prospective online defamation plaintiffs should be aware of: Notice. Notice is the most important pre-suit filing requirement that online defamation plaintiffs and attorneys must follow when bringing an online defamation of character lawsuit.
Notice simply refers to informing the opposing party (the online defamer) that a lawsuit is impending and that they must retract or remediate their defamatory publication in question.
For example, Florida’s notice statute for libel requires a plaintiff to, at least 5 days before instituting a civil libel action, serve notice in writing on the defendant, specifying the article or broadcast and the statement which he or she alleges to be defamatory. Failure to comply with Florida’s libel notice statute may result in a case’s dismal.
Similarly, the Texas Defamation Mitigation Act states, “A person cannot maintain an action for relief, however characterized, for damages for harm to personal reputation caused by false content of a publication without making a timely and sufficient request for correction, clarification or retraction from the defendant.”
The Mitigation Act also provides for abatement of an action where a defamation plaintiff has failed to request a correction, clarification, or retraction pursuant to the act and precludes a plaintiff from recovering punitive damages where there was no request for a correction within 90 days of knowledge of the defamatory publication.
You can find a comprehensive list of state by state pre-lawsuit filing requirements below by reading one of our comprehensive state defamation guides.
Defamation Complaint Requirements
Obtaining adequate relief for an online defamation client starts with the drafting of the complaint. When it comes to defamation complaints, less is more. When possible, online defamation complaints should err on the side of putting as few details and specific pieces of information about the defamation in question to avoid drawing unwanted attention to a client’s matter.
Not only does pleading less (including less specific information) in a complaint decrease the chance of the Streisand Effect occurring, but it also decreases the chance of defamatory content republication AND best serves the goals of the legal representation. Some states however do have stricter pleading requirements and technicalities to follow, such as including the exact language of the defamatory publication.
For example, New York requires defamation plaintiffs to “set forth the particular words allegedly constituting defamation,” and include “the time when, place where, and the manner in which the false statement was made, and specify to whom it was made.” New York defamation plaintiffs who fail to set forth the particular words and provide specifics about the statement(s) will have their complaint dismissed.
Ohio, on the other hand, has no special pleading requirements and does not require defamation plaintiffs to plead defamatory statements verbatim. Pleadings will be sufficient as long as they “allege the substance of the allegedly defamatory statements.”
When drafting an online defamation complaint, it is critical to understand the fundamentals of an online defamation complaint to maximize relief and recovery for the plaintiff. Key fundamentals to take into account and pay extra attention to when drafting an online defamation complaint include:
- Jurisdiction and venue
- Factual allegations;
- Claims for relief;
- Relief and requested damages; and
- Request for a jury.
There are also several miscellaneous complaint considerations to take into account, such as whether there are additional state-specific pleading requirements or nuances and anonymous plaintiff filings.
Understand that there are a plethora of defenses that online defamation defendants can rely on when presented with an online defamation suit, such as:
We address each defense in more detail in the Section “Online Defamation Defenses.”
A state’s respective defamation statute of limitations, the single publication rule, retraction statutes, and state-specific Anti-SLAPP statutes will also have an impact on a plaintiff’s filing of an online defamation lawsuit. Sometimes, filing a defamation of character lawsuit is not the right strategy for resolving your specific defamation issue and it is worth exploring alternative claims to best accomplish your goals.
Alternative Claims to Defamation
Filing a defamation claim is not always the right course of action for your specific legal matter. Whether it is because of the type of defamation in question, the parties behind the defamatory online attacks, or the fact that sometimes the content on the Internet is not even actionable for defamation, there are plenty of reasons why online defamation victims may seek alternative types of claims.
The most common alternative claims to suing for online defamation are:
For more information on alternative claims available to defamation victims, we recommend checking out our guide on the subject, ‘What Other Claims Are Available if Suing for Defamation Isn’t an Option?‘.
Additionally, as an alternative to litigation for claims of online litigation damaging posts and online content can also be removed for violating a platform or website’s Terms of Service and by flagging or reporting the content via their prescribed reporting channels.
Utilizing an alternative method to suing for defamation is highly dependent on the specific facts and issues involved in your case. It is recommended that you compile all relevant information and evidence pertaining to your Internet issue and contact an experienced Internet attorney to explore your legal options.
Where Do I File My Online Defamation Lawsuit?
Jurisdiction plays a critical role in every online defamation lawsuit and can affect the outcome of a case. Jurisdiction is the legal term for where a lawsuit may be filed.
Because U.S. defamation laws vary by state, it is important to conduct thorough research before filing a defamation lawsuit. Where a lawsuit is filed can make or break a case.
Online defamation plaintiffs may need to testify in their case, so selecting a state that is convenient for travel purposes should also be thoroughly considered when determining where to file an online defamation lawsuit.
The general rule of thumb on where an online defamation plaintiff can file their lawsuit is that they may file their suit in the state where the defamer lives. However, jurisdiction over an online defamation matter is not only determined based on where the online defamer lives.Online defamation plaintiffs may, in some cases, also file a defamation lawsuit in the state:
- Where the Plaintiffs lives,
- Where the plaintiff’s business is headquartered,
- Where the post was published,
- Where the plaintiff has been harmed by the publication.
This analysis varies considerably by state and is usually dependent on the scope of a state’s long-arm statute and specific court rulings that have addressed the issue. To determine if jurisdiction is proper in a defamation plaintiff’s home-state or another jurisdiction, courts will typically look to:
- Evidence that people have viewed or read the publication in that state;
- The plaintiff has experienced harm in that state;
- The plaintiff is located in that state;
- The Defendant ties and connections with the state in questions; and
- The libel was directed at that state.
For example, the case of Kauffman Racing Equip. v. Roberts, solidified that Ohio courts will have jurisdiction over out-of-state defendants who:
- Post material online that multiple Ohio residents view;
- That defames the plaintiff with Ohio domicile;
- Is specifically directed at Ohio within the context of the writing; and
- Such domicile was known by the defendant.
Ohio’s reasoning behind this generous test for jurisdiction is to “decline to allow a nonresident defendant to take advantage of the conveniences of technology affords and simultaneously be shielded from the consequences of his intentionally tortious conduct.”
On the other hand, New York’s jurisdictional reach is much narrower and will generally only extend over out-of-state defendants when:
- The defendant published material online relating to a transaction of a business; and
- When a defendant engages in business within New York and subsequently publishes a defamatory statement outside of New York regarding that transaction.
Online defamation plaintiffs that have a multi-state or national presence can often make the argument that defamation damages have occurred in multiple jurisdictions.
Plaintiffs should also consider costs (as some jurisdictions are cheaper than others) and more creative considerations, such as whether any defamation defenses are (or are not) available in that jurisdiction.
When determining where to file an online defamation lawsuit, defamation plaintiffs should compile a list of possible jurisdictions and then assess the legal options based on which laws are favorable for their claim by analyzing their state’s respective long-arm statute and venue rules.
A long-arm statute enables a court to exercise jurisdiction over an out-of-state defendant. Long-arm statutes are particularly relevant to online defamation cases and lawsuits due to a high percentage of defamatory attacks being perpetrated by a party in one state against a party in another.
Most long-arm statutes will allow a state to exercise jurisdiction over an out-of-state defamation defendant where a defendant has minimum contacts with the state. Whether a defendant has minimum contacts with a state is often proved by showing that a cause of action arose from:
- Transaction of business in a state;
- Commission of a tortious act within a state;
- Ownership, use, or possession of any real property in a state;
- Contract(s) executed within a state;
- Maintenance of a matrimonial home within a state.
In one Virginia libel lawsuit, a court ruled that a defamatory publication about a Virginia resident on popular messaging platform and bulletin board AOL (which is located in Virginia), may confer personal jurisdiction.
However, in Utah, defamatory comments posted to an online forum, with no specific connection to Utah, did not satisfy the minimum contacts requirement for jurisdiction under Utah’s long-arm statute.
After discovering that online defamation plaintiffs can file an online defamation lawsuit against an out-of-state defendant, it is then important to understand where you can sue them. As explained in Section 2 ‘Filing an Online Defamation Lawsuit’, a defamation plaintiff can generally sue a defendant where:
- The plaintiff lives;
- The defamer lives;
- The plaintiff’s business is located;
- The plaintiff business’s customers are located;
- The losses or damages associated with the defamation occurs.
In Ohio, an online defamation plaintiff may file a lawsuit against a defendant:
- Where any defendant resides;
- Where any defendant conducts business;
- Where any defendant conducted activity that gave rise to the cause of action;
- Where the plaintiff resides or conducts business.
Known vs. Unknown Defendants
Identifying an anonymous poster and defamer is no easy task, and will first require the filing of a John Doe Lawsuit to identify the individual by subpoenaing website administrator, webmasters, and Internet Service Providers (ISPs) to acquire their personal information.
Most U.S. states have acknowledged that anonymous speech is protected under the First Amendment and right to Free Speech. However, courts have noted that an anonymous person’s First Amendment rights to freedom of speech should be balanced with an online defamation plaintiff’s right to pursue a valid cause of action for defamation.
For example, New York has adopted the Dendrite Test, requiring online defamation plaintiffs to produce evidence for each element of their claim. After the production of evidence, a court will then independently weigh and balance the need for the disclosure of an anonymous online person’s identity vs. the First Amendment values at stake.
Even when an online defamer’s identity is known, it is important to evaluate what type of response you can expect from them. Are they going to show up in court to defend themselves? Will they be able to afford the lawsuit? Is there a long-arm statute that allows for jurisdiction over them? There are numerous questions that those considering filing an online defamation lawsuit should ask themselves before beginning.
Furthermore, U.S. online defamation laws can vary widely in scope and complexity, therefore it is extremely important to consult with someone who navigates these waters regularly.
How to Prove Damages in an Online Defamation Lawsuit
Proving damages is the fourth and final element that a plaintiff must show to succeed in an online defamation lawsuit. The term “damages” simply refers to a monetary sum that the law grants to a plaintiff as compensation for a violation(s) of their rights.
Due to each state having its own guidelines determining plaintiff recoveries and the highly subjective nature of the actual harm that a person can experience as damages, proving damages in an online defamation lawsuit is no easy feat. It’s often the hardest part of any defamation case.
Online defamation plaintiffs can better arm themselves to prove damages by:
- Keeping detailed copies of invoices of expenses incurred to mitigate the effects of the defamatory statement(s).
- Documenting all medical bills and invoices from issues related to online defamation (ex. Therapy, psychiatric help, or even high blood pressure and anxiety attacks).
- Documenting and compiling financial records (including cash flow projections and future earnings and opportunities)
- Documenting attorneys’ fees incurred from seeking legal advice and pursuing legal action;
- Documenting any miscellaneous expenses (such as loss in value of IP).
A defamation plaintiff’s ability to recover damages will first hinge on the type of defamation case they have. Defamation Per Se and Defamation Per Quod are the two types of defamation claims available to a plaintiff. As mentioned above, a defamation per se plaintiff is presumed to be damaged, while defamation per quod plaintiffs will need to allege how they are damaged from the start of a lawsuit, without the benefit of conducting discovery.
In most online defamation cases, there are several types of damages that a plaintiff may be able to recover:
- Actual Damages or Compensatory Damages;
- Special Damages;
- General Damages;
- Nominal Damages; and
- Punitive Damages.
Actual or Compensatory Damages
Actual damages, also commonly referred to as compensatory damages, can be broken down into two types: special damages and general damages.
Special damages (sometimes called economic damages) act to reimburse an online defamation plaintiff for the actual economic losses they incurred as a result of a false statement of fact. Common examples of economic losses include lost income, loss of business and customers, and expenses incurred to mitigate the effects of a defamatory statement.
Defamation plaintiffs proving special damages must make sure that they are well-documented, which can easily be done by producing bank statements, tax returns, invoices and receipts, and other business expense documents. Special damages may also be supported by testimony.
To assist in proving special damages, online defamation plaintiffs may also need to rely on the help of an expert witness. Expert witnesses are third party persons with specialized knowledge that quantify and testify to the damage suffered as a result of a defamatory statement(s).
Also known as “non-economic damages,” general damages are damages that reimburse an online defamation plaintiff for damage incurred that is not economically quantifiable, such as emotional distress and reputational harm.
Similar to special damages, online defamation plaintiffs may also need to rely on the testimony and assistance of expert witnesses to prove general damages. Relying on the testimony and objective evidence provided an expert witness is generally the best way for online defamation plaintiffs to prove general damages.
Nominal damages are damages awarded to a defamation plaintiff when they [the plaintiff] were unable to adequately prove the extent and nature of the damage, loss, or injury suffered, but a legal wrong occurred. Nominal damages are commonly sought in cases involving violations of constitutional rights, such as the restriction of freedom of speech, due to the difficulty proving harm and injury.
As the monetary award associated with nominal damages is often (but not always) small, it is not the main point behind seeking them. The reason why online defamation plaintiffs pursue nominal damages is to seek a court’s acknowledgment that their legal rights have been violated and to possibly lay the groundwork for future legal action (such as the imposition of punitive damages).
Punitive damages are awarded to online defamation plaintiffs to punish defendants for their behavior when it is especially malicious, egregious, or wanton. To prove punitive damages, online defamation plaintiffs must prove that a defendant acted with actual malice or reckless disregard when publishing or communicating a defamatory statement.
Where a defendant’s behavior is especially malicious and egregious, courts have even awarded punitive damages in excess of tens of millions of dollars.
Other Practice Pointers, Questions, & Pitfalls to Avoid
Filing an effective defamation lawsuit requires plaintiffs to “think outside the box” by not only anticipating strategic (and sometimes unethical) tactics that a defamation defendant may rely on, but understanding lesser known pitfalls and legal doctrines that may ultimately bolster or diminish their claim. These tactics and considerations include:
- The Streisand Effect;
- Defamation insurance;
- Retraction statutes; and
- Libeling the dead.
The Streisand Effect
The Streisand Effect is a key consideration that defamation plaintiffs should keep in mind when filing a defamation suit, as it could ultimately render your defamation lawsuit ineffective before it even begins. Let us first explain how Barbra Streisand and the attempted suppression of a photograph paved the way for a critical pitfall for defamation plaintiffs to avoid.
The Streisand Effect refers to a viral phenomenon and PR disaster where famous singer and actress Barbra Streisand attempted to suppress aerial photographs of her Malibu home by suing the photographer behind them. However, instead of successfully suppressing and removing the images from popular photo-sharing website Pictopia.com, Streisand’s suit drew considerable attention and caused the images to go viral, resulting in the aerial photographs of her home being viewed more than 420,000 times.
The Streisand Effect is now a popular term used to describe situations involving the attempted suppression or removal of content, which accomplishes the exact opposite result and causes the information to receive widespread publicity and attention. In the context of the law, the Streisand Effect typically occurs after the filing of a frivolous and meritless lawsuit or sending of a cease and desist letter.
The Streisand Effect is even used as an aggressive defense tactic by prospective defamation defendants to draw viral attention to a matter so that a defamation lawsuit’s goals are rendered ineffective because the complete removal and suppression of content is impossible (or near impossible).
There are several ways to safeguard against you or your client’s online defamation issue going viral and falling victim to the Streisand Effect:
- Narrowly describe the scope of claims and parties involved;
- Do not cross the line from aggressive representation to bully;
- Strive for confidentiality when applicable;
- Research the website or ISP where the defamatory content is posted.
Defamatory online attacks and content can be a highly sensitive matter and there is a lot that can go wrong before and when filing an online defamation lawsuit, so it is of the utmost importance to make sure not to “poke the bear.”
What is Defamation Insurance?
Defamation insurance refers to an insurance policy that protects policyholders from libel, slander, and other tortious claims against them. Defamation insurance is generally covered under “excess liability,” a common addition to insurance policies that provide extra coverage (beyond the scope of the original policy). However, if a defamation case involves a libelous statement(s) that was clearly intentional and published with actual malice (and not just ordinary negligence), most insurance policies will not cover it.
Professionals engaged in journalism, news reporting, freelancing, and independent contracting are the most common parties that purchase defamation insurance due to being at a higher risk of facing an online defamation lawsuit than other professions.
When filing a defamation lawsuit, defamation plaintiffs should always strive to determine whether the defendant has defamation insurance. Generally, most news organizations and media companies carry defamation insurance, which is covered under general liability insurance (also known as business liability insurance) or other umbrella insurance policies. Defamation insurance also commonly is covered under homeowner’s and renter’s insurance.
Finally, whether a defamation defendant has defamation insurance or not can drastically change the dynamics of a lawsuit and can create a double-edged sword for defamation plaintiffs. On one hand, a defamation plaintiff may have a chance to recover damages against a defendant where there was no chance to do so previously. On the other hand, in most cases, defamation insurance will cover defense costs that might not otherwise have been affordable for the defendant.
Can a Defamation Defendant Retract a Statement or Publication Before Litigation?
Defamation defendants can retract defamatory statements and publications before litigation, however, a retraction will generally only serve to mitigate a plaintiff’s damages rather than negate the defamatory act in most U.S. states.
Each state has its own retraction statute(s) governing how a defamation plaintiff should notify a defendant that a retraction is in order.
For example, California’s retraction and correction statute requires that a defamation plaintiff serve the publisher a written notice to remove the defamatory statement(s) within 28 days of publishing. The demand must also specify the defamatory material with particularity.
Texas on the other hand requires that defamation plaintiffs request a retraction, correction, or clarification of a defamatory statement(s) within no later than the 90th day after learning of the publication. Tex. Civ. Prac. & Rem. Code § 73.055(b).
Can Dead People be Defamed?
Libeling the dead is typically not actionable under modern-day defamation laws. Libeling a deceased person causes no actual damage to their reputation, as they are deceased.
The memory of a deceased person can however be defamed, but this is not covered under the tort of defamation of character.