Consider this the ultimate guide to online defamation law in the United States. Defamation definitions, laws, and requirements can be overwhelming and highly nuanced. It can be difficult to know where to start when learning about defamation. But do not worry!
In this complete guide to defamation law we will walk you through:
- The most common types of defamation, legal definitions, and terms;
- The most common types of defenses to defamation claims;
- How to file a defamation lawsuit, and win;
- Ways to deal with defamation and respond to it; and
- The most important and frequently asked questions people have about hiring defamation lawyers, and more!
This guide to defamation law is a product of over a decade of experience in this niche area of law and our in-depth knowledge from writing nearly two dozen comprehensive state-specific defamation law guides on the subject matter. It also comes from our extensive experience representing thousands of individuals and businesses from across the globe who are being victimized by online attacks.
We pride ourselves on empowering and educating victims of online defamation and harassment to better understand their legal rights and remedies so that they can fight back and restore their reputation.
What is Defamation?
Defamation refers to a false statement made to a third party that causes damage to another person or entity’s reputation. Defamation is generally broken down into two categories: libel and slander.
- Libel is a written false assertion of fact published to a third party that causes damage to another person or entity’s reputation.
- Slander is a spoken or verbal communication of a false assertion of fact to a third party, which causes damage to another person or entity’s reputation.
Defamation that occurs online is referred to as “Online Defamation” or “Internet Defamation.” Defamation is also commonly referred to as “defamation of character,” “character defamation,” and “the tort of defamation.” A tort simply means a wrongful act or omission that causes a personal injury and gives rise to a civil claim for liability. Other lesser-known terms used to describe defamation include:
- Calumny: the act of maliciously representing another party’s actions or words and causing damage to a person’s reputation.
- Vilification: the act of abusively disparaging another person by way of speech or writing.
- Traducement: a false allegation of an offense or malicious misrepresentation of another party’s actions or words.
- Famacide: a lesser-known and archaic term meaning “to destroy another person’s reputation.”
- Disparagement: often used as a legal term to describe business defamation and libel torts.
Parties who defame another person, whether it verbally or in writing are also referred to as:
- Defamers: the general term for persons that defame a person or entity by EITHER a written or verbal false assertion of fact.
- Libelers: a person who defames another person or entity by way of a written statement or published false assertion of fact.
- Slanderers: a person who defames another person or entity by way of a spoken false assertion of fact.
Libel vs. Slander
An easy way to remember the difference between libel and slander is that slander is to speak. It is spoken defamation. Any time you encounter a false statement that is verbally communicated, then slander is at play.
A libelous statement is written defamation. It is one that is published, recorded, printed, or preserved in a physical or digital form. In Latin the term “libellus” literally translates to “booklet” or “small book.” Any time you encounter a false statement that is published in written form or any other type of publication medium then libel is the appropriate classification.
When filing an online defamation lawsuit, it is extremely important to understand the differences between slander and libel claims. If a plaintiff asserts the wrong legal claim, they may have it dismissed and forfeit their right to bring the correct one.
No different than individuals, businesses that are defamed also have legal claims and remedies available under defamation laws. Businesses in fact also have the benefit of making more specialized claims for damages and relief that are not available to individuals under traditional libel laws.
State law varies considerably as to their availability, but common business defamation claims include:
- Injurious falsehood
- Unfair/deceptive trade practices
Compared to traditional libel torts, business defamation claims can sometimes have additional benefits and remedies, such as a longer statute of limitations periods, more easily available awards of attorneys’ fees, and statutory provisions that provide for multipliers of damage awards.
However, these claims can also boast stricter legal requirements that can make them much harder to prove, so it is important to consult an experienced Internet or personal injury attorney before proceeding. We review each of these types of claims more below.
Injurious Falsehood/Business Disparagement
Also known as business disparagement or commercial disparagement, the tort of injurious falsehood refers to a false and malicious publication concerning the plaintiff or plaintiff’s property, which causes harm, damage, or expense to the plaintiff. Injurious falsehood is a blanket term that is usually brought/pled as the more specific doctrines of:
- Trade libel/Product Disparagement;
- Food Libel/Disparagement Statutes (“Veggie Libel Laws”); and
- Slander of title.
For a plaintiff to succeed in an injurious falsehood legal claim (i.e. trade libel and slander of title claims), they must generally prove the following five elements:
- A false statement regarding the plaintiff’s product or property;
- The statement was published to a third-party;
- The statement is “of and concerning” the plaintiff or plaintiff’s property;
- The plaintiff incurred special damages as a result of the falsehood;
- The statement was made with malice.
Injurious falsehood differs from defamation in the way that injurious falsehood concerns itself with commercial (and economic) damage and loss to the plaintiff’s property/products/business, rather than reputational harm. Additionally, malice on behalf of the defendant must be proven.
A legal claim for injurious falsehood may also be dismissed as duplicative where it relies on the same statements or damage claims at the heart of a defamation claim.
Trade Libel/Product Disparagement
Trade libel refers to a false or disparaging statement made to a third party which causes harm to a person or entity’s service or product, rather than reputation or property.
Trade libel is also commonly referred to as business or commercial disparagement, product disparagement, slander of goods, unfair competition, and interference with a prospective business advantage. Some states use the term trade libel interchangeably with “injurious falsehood.”
For example, a Massachusetts court commented, “Trade libel is a “mere name occasionally applied to [a] particular type of injurious falsehood [i.e., product disparagement]. The name no longer had any significance of its own.”
For a plaintiff to succeed in a trade libel claim, they must generally prove the following five elements:
- A false statement regarding the plaintiff’s product or goods;
- The statement was published to a third party;
- The statement is “of and concerning” the plaintiff’s product or goods;
- The plaintiff suffered special damages as a result of the statement; and
- The statement was published with malice by the defendant;
A key element of trade libel that a plaintiff must prove is that they suffered special damages as a result of the false publication or statement about their products or goods. For example, where a plaintiff demonstrated that it has achieved a specific level of sales growth in certain industrial markets and then plateaued and declined after disparaging statements about their product were made, a Minnesota court found that special damages were sufficiently proved.
It is important to understand that not all U.S. states have explicitly accepted (or rejected) the tort of trade libel. For example, the Alabama Supreme Court has indicated that the tort of trade libel (and injurious falsehood) is classified under the tort of interference with business contract relations.
On the other hand, the District Court for the Eastern District of Virginia recognized the tort of product disparagement where a chimney manufacturer brought an action against a magazine publisher, alleging that the publisher had falsely stated that the type of chimney manufactured by the plaintiff was only safe for use in only a particular type of fireplace.
Veggie Libel Laws
Also known as food libel and food disparagement laws, veggie libel laws are statutes that establish a legal cause of action for manufacturers and producers of food that have had false and disparaging information published about their food products. Veggie libel laws are a subset of trade libel laws and concern themselves with statements typically implying that a person or business’s goods (often perishable goods) are unfit for human consumption.
As of 2020, thirteen U.S. states have veggie libel laws in their books.
- North Dakota
- South Dakota
Slander of Title
Slander of title is a specialized common law tort that involves a false statement published to a third party, which causes financial harm or loss to a person or entity’s title of a property. The core difference between defamation and slander of title is that it concerns itself with the plaintiff’s title to a property, rather than reputation.
It is also worth noting that the term slander of title is a misnomer, as it does not concern itself with statements that are generally spoken in nature and instead concerns itself with a recordation of a deed or written publication.
To succeed in a slander of title lawsuit, a plaintiff must prove the following six (6) elements:
- There was a false statement made about a person or entity’s property;
- The statement was published to a third party;
- The defendant published the statement with knowledge or reckless disregard as to the truthfulness of the statement;
- The defendant should have known (or reasonably believed) that the third party might rely on the statement and that it would cause financial harm to the plaintiff’s title;
- The plaintiff, did in fact, suffer financial harm to their title as a direct result of a third party’s reliance on the statement; and
- The defendant’s conduct was directly attributable to a substantial factor in causing harm to the plaintiff’s title.
Slander of title can sometimes be hard to wrap your head around and varies considerably from state-to-state, so let us take a look at two examples:
- A court in the Ohio case of Green v. Lemarr noted that most slander of title lawsuits typically involve documents that are filed against a property by a party who claims to have an interest in the property. This often results in the wrongful recordation of interest in the property.
- New York defines slander of title as any act that substantially impairs the marketability of a property. Unlike Ohio, slander of title in New York does not always equate to the filing of a notice of pendency of illegitimate circumstances, as there is competing case law on the matter.
Unfair/Deceptive Trade Practices
An unfair or deceptive trade practice is an act by either an individual or business that is intended to mislead or entice the general public into purchasing a product or service. Most states have adopted the Uniform Deceptive Trade Practices Act, which can be divided into two primary categories:
- Fraudulent or unfair business practices;
- Misleading and false advertising.
Specifically, the Uniform Deceptive Trade Practices Act forbids:
- Undisclosed substitution of other goods or services for those ordered by a customer;
- Trade symbol infringement;
- Misrepresentation of the geographic origin of services or goods;
- False advertising of services, businesses, and goods;
- Disparagement of goods, services, and businesses;
- Bait and unethical advertising;
- Misrepresentation of pricing; and
- Other conduct that creates a likelihood of confusion or misunderstanding for the consumer.
Most of the Act pertains to claims most similar to trademark infringement claims. However, businesses should be aware of the protection against disparagement of goods, services, and businesses under the Uniform Deceptive Trade Practices Act.
For example, if a business competitor falsely accuses your business of selling illegal goods or being untrustworthy, this may give rise to a claim for deceptive trade practices.
U.S. Criminal Defamation Laws
One of the common questions that defamation victims often ask is, “Can I put an online defamer in jail?” The simple answer is yes, but these laws are rarely enforced. Realistically, the most common way someone might end up in jail because of defamation is because their behavior violates a related criminal law (like harassment) or they fail to abide by the terms or a prior issued restraining order or injunction commanding them to stop.
It is also important to understand that there are no federal criminal laws in the United States pertaining to libel – everything is codified by state.
As of May 2020, only 13 states have criminal defamation laws in their books. They are:
- New Hampshire
- New Mexico
- North Carolina
- North Dakota
In the above states, defamers may face a wide range of consequences, including fines and even imprisonment for up to six months. Most other states have overturned criminal defamation laws for being too vague and an infringement on First Amendment rights.
In the states without criminal defamation laws in their books, defamation offenders can still go to jail and be criminally sanctioned in three key situations:
- When they have violated a restraining order;
- When they are held in contempt of court for violating a court order that relates to libelous statements and behavior;
- When they are charged with associated crimes, such as sextortion, online extortion, online harassment, and blackmail.
To succeed in a criminal defamation claim, a plaintiff must prove beyond a reasonable doubt that the defamer knew the statement(s) in question was false.
How to Prove Defamation, Libel, & Slander
Understanding the elements of defamation is critical to proving a defamation claim. However, the elements are far from the only things that must be considered to successfully prove a claim. Plaintiffs must also take into account and consider whether a plethora of different defamation defenses, privileges, or other rules apply that might cause what normally would be a valid legal claim to fail.
In the next sections and chapter, we explore these rules and defenses in depth.
Elements of Defamation
- There is a false statement made about the plaintiff,
- It was communicated to a third party,
- It was made with at least a negligent level of intent, and
- It caused damage to the plaintiff’s reputation.
Let’s break down each of the four elements above further.
Element 1: False Statement “Of and Concerning” the Plaintiff
A false statement is an untrue statement of fact, that is both unsubstantiated and unprotected under the law. The false statement must not refer to just “some person,” a plaintiff must also show that a reasonable person understands that the statement is about the plaintiff.
Element 2: Communicated to a Third Party
The false statement must be actually communicated or published to a third party. False statements which are not published to a third party, and only “heard,” “read,” or “felt” between the plaintiff and the publisher will not give rise to an actionable defamation claim.
Element 3: With Fault Amounting to At Least Negligence
A plaintiff must prove that the defendant published the false statement(s) negligently, meaning that they did not act with reasonable prudence and care an ordinary person would exercise in similar circumstances.
Element 4: Causing Damage to the Plaintiff’s Reputation
The false statement(s) must cause actual damage to a plaintiff’s reputation. Damage to a person’s reputation can range from economic losses to physical symptoms or mental distress, all the way to expenses incurred to mitigate harm felt by the statement.
Defamation Per Se
The fourth element required to be proved in a defamation claim is that the statement(s) in question caused damage to the plaintiff’s reputation. The burden of proof for this requirement can turn heavily on whether a false statement is considered defamation per se.
Defamation per se is a legal doctrine that classifies certain defamatory statements as so inherently inflammatory and harmful, that it is presumed a defamation plaintiff suffered damage as a result of the statement.
Defamation per se is also commonly referred to as libel per se or slander per se, depending on the form in which the statement is communicated to a third party.
Most U.S. states recognize four types of statements as ‘defamatory per se’:
- Statements charging the plaintiff with having committed a punishable crime or a crime of moral turpitude;
- Statements imputing the plaintiff suffers from a loathsome disease such as a sexually transmitted disease or leprosy;
- Statements imputing the plaintiff (typically a female plaintiff) has engaged in sexual misconduct and is unchaste;
- Statements imputing the plaintiff has acted improperly or unethically in the course of their trade, profession, business, or occupation.
Notably, the notion that damages will be “presumed” in defamation per se cases can be both misleading and confusing for defamation plaintiffs. When damages are said to be presumed, it causes many people to assume that a plaintiff does not have to provide actual evidence of damages to win an award. This is not the case.
Although statements that qualify as defamatory per se are presumed to be damaging, this does not automatically entitle a Plaintiff to anything more than a nominal damage award or prove how much they’ve been damaged. Damage amounts must ultimately be proven with evidence of the harm, including actual damages, compensatory losses, emotional distress, and other types of damages.
We address how to calculate and prove damages in a defamation case in the section How to File an Online Defamation Lawsuit (and Win), below.
Since the legal definition and elements of defamation may vary by state, it is important to consult an experienced Internet attorney to understand your state’s respective defamation laws and elements.
Defamation Per Quod
Unlike defamation per se, which classifies certain types of statements as inherently defamatory and damaging, defamation per quod requires that a plaintiff:
- Provide extrinsic evidence and facts to prove that a statement(s) is false and damaging, and
- Plead alleged damages, referred to as special damages, with particularity.
We break down each of these requirements more below.
Providing Extrinsic Evidence & Facts
Oftentimes, a statement(s) is not defamatory on its face, meaning that it is not easily identifiable as defamation and will require the analysis of extrinsic evidence to establish its defamatory meaning.
To hammer home the first distinguishing feature of defamation per quod that requires the production of extrinsic evidence to prove the defamatory nature of the statement(s), an Illinois court emphasized, “…a per quod claim applies when a statement is innocent on its face but extrinsic facts make the statement defamatory or where a statement is defamatory on its face but does not fall into one of the per se categories.”
Pleading Special Damages
Most states (not all) require a plaintiff to plead special damages. In the majority of states that do require a plaintiff to plead special damages, failing to do so will preclude a successful defamation per quod claim.
A North Carolina court noted the second distinguishing feature of defamation per quod requires plaintiffs to plead alleged damages (known as special damages) with particularity, “…‘the mode of proving the resultant damage’ is the primary difference between slander actionable per se and per quod…” A defamation per quod claim that includes an allegation of special damages must describe with explicit details how the damages are a direct result of the conduct by the defendant.
Private Figures vs. Public Figures
How difficult a defamation claim can be to prove often relies heavily on whether the party suing is considered a private or public figure. In the 1964 landmark case of New York Times Co. v. Sullivan, the U.S. Supreme Court established two distinct burdens of proof that defamation plaintiffs must meet to succeed in their legal claim.
To succeed in a defamation of character claim, a private figure must only prove that a defendant acted with ordinary negligence when publishing a defamatory statement online. Private figures are everyday persons who have not voluntarily or involuntarily thrust themselves to the forefront of a public controversy.
As private figures have not positioned themselves at the forefront of society for public comment, discussion, or debate, the law respects their right to privacy and imposes a less strict burden of proof that must be met to prove that a defendant defamed them.
On the other hand, a public figure must prove that a defendant acted with actual malice or reckless disregard when publishing a defamatory statement online. People are considered public figures when they have some degree of clout, prominence, or notoriety in society or have voluntarily or involuntarily thrust themselves to the forefront of public controversy.
Public figures are typically celebrities, politicians, sports athletes, and other notable figures. Public figures have a higher burden of proof because they have positioned themselves at the forefront of society for public comment, discussion, or debate. The law, therefore, imposes a stricter burden of proof that must be met to prove that a defendant defamed them.
A defendant will be found to have made defamatory statements with actual malice when they make a defamatory statement with knowledge of its falsity, or with ill will and spite towards the plaintiff. It is worth noting that New York Times Co v. Sullivan was the first time the U.S. Supreme Court gave the term “actual malice” constitutional significance.
Defaming a public figure or public official requires that a defendant goes above and beyond normal conduct by acting with malicious intent when publishing a statement(s). The actual malice threshold is a necessary safeguard to prevent overly litigious persons or entities from filing frivolous lawsuits at the slightest hint of criticism or comment. Furthermore, public figures have availed themselves to public scrutiny, criticism, and comment in society, and should be discussed openly without fear of censorship or legal repercussion.
For example, under California defamation law, a court found that a well-known land developer who sought public approval for housing construction near a toxic chemical plant was considered a public figure.
Most U.S. states take the idea of private and public figures one step further by expanding defamation plaintiff classifications to four types:
- Private figures;
- Public officials;
- All-purpose public figures;
- Limited purpose public figures.
A plaintiff’s classification as one of the above four figures will determine the necessary burden of proof that must be proved by them to succeed in their defamation claim.
|Four Classifications of Defamation Plaintiffs||Private Figures||Public Officials||All-Purpose Public Figures||Limited Purpose Public Figures|
|Legal Definition||Private figures are persons who have not voluntarily or involuntarily thrust themselves into the public light or public controversy.||Public officials are persons in the hierarchy of government that typically have a pervasive influence over government and societal affairs.||All-purpose public figures are persons that have achieved such pervasive notoriety or fame in society that they have become a public figure for all purposes and in all contexts.||Limited purpose public figures are persons that have voluntarily or involuntarily injected themselves into a particular public controversy.|
|Burden of Proof||Ordinary negligence||*Actual malice – for both public and private matters||Actual malice||*Actual malice – however, this burden of proof will only apply to the controversies that the LPPF has thrust themselves to the forefront of (voluntarily or involuntarily)|
Issues of Private vs. Public Concern
Just as U.S. defamation and libel law differentiates between private and public figures for purposes of promoting uninhibited debate and freedom of speech, it also strives to differentiate between private and public issues. Simply put, certain types of issues that are matters of public concern should be able to be discussed freely, and are in society’s best and public interest to discuss them in a more uninhibited way without fear of censorship or legal repercussions.
Issues of private and public concern follow a similar burden of proof to private and public figures. For example, when discussing or publishing private issues, a plaintiff must generally prove that a defendant acted with at least ordinary negligence when publishing or communicating a statement(s). And, when discussing or publishing matters of public concern, plaintiffs must generally prove that a defendant acted with actual malice or reckless disregard when publishing or communicating a statement(s).
Issues that are commonly classified as public concerns include:
- Matters that are the subject of legitimate news and public interest,
- Matters that are important for unrestricted and hearty debate in the community,
- Major events,
- Matters that deal with political, social, or other concern to the community.
For example, in one Texas defamation case, an arrest of the chief deputy’s son and the chief deputy’s abuse of power to suppress evidence was considered a matter of public concern, as it was the subject of a legitimate news interest and of value and concern to the general public.
Another rule plaintiffs must be mindful of involves group defamation. The general rule is that a group or class of persons cannot sue for online defamation. But, if a statement defaming a group or class of persons is published or communicated in a manner that allows for obvious identification of an individual(s) in the group, then the group may have an actionable claim.
To prove group defamation, also known as class defamation, a plaintiff must show:
- The group or class is small enough that a reader or listener could reasonably infer and/or understand that the defaming statement(s) in question refers to the plaintiff; and
- The reader or listener could reasonably infer and/or understand that the defaming statement refers to the plaintiff based on the context of the publication.
Generally, the size of a defamation group includes 25 or fewer persons and the circumstances surrounding how the defamatory words or statement(s) are published or communicated will significantly affect the success of the claim.
For example, in the New York case of Neiman Marcus v. Lait, a court found that a libelous statement alleging that “most members” of a class of 25 are guilty of certain behavior may give rise to an actionable group defamation claim, while a similar statement alleging that one member of the class of 25 is guilty of the same behavior will probably not give rise to an actionable claim.
Neiman Marcus v. Lait laid the groundwork that absent circumstances identifying a specific plaintiff as the defamed individual, no individual member of a group or class will have a group defamation claim.
The Republication Rule
Individuals who repeat defamatory statements that another person has published or communicated can be held liable for defamation themselves. A person cannot avoid the consequences of making a libelous statement simply by claiming they are repeating someone else’s words. However, this will heavily depend on the circumstances of the original publication and how it was repeated or republished.
Unless privileged or otherwise protected by law, most state defamation laws treat the person who repeated or republished the falsehood as the original publisher. The republication rule does not preclude persons who repeat defamatory words or statements from relying on typical defamation defenses.
For example, John would be potentially liable for defamation for repeating a defamatory statement made by Jane, even if the statement or publication was explicitly attributed to Jane. However, if John is legally privileged to communicate or publish a defamatory statement (ex. Testifying before a court of law), then John will not be held liable for defamation for repeating a defamatory statement made by Jane.
By way of example in on Ohio defamation case, a news media publication was not held liable for quoting a defamatory statement made by a police lieutenant saying that the plaintiff “got away with murder,” because the statement was a true and accurate quote.
Liability of the Original Publisher For Republication
When republication of a libel occurs, some states (but not all) follow the Restatement (Second) of Torts Section 577, cmt. K, which provides that the original publisher and the person who republished the defamatory statement are both liable for the republication. It Restatement states as logic for this reasoning:
“There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated. (See § 8A). It is not necessary, however, that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication. A negligent communication amounts to a publication just as effectively as an intentional communication.”
In sum, should the original publisher create (whether intentionally or negligently) a risk that the defamatory statement(s) will be communicated to a third party, then they [the original publisher] will be held liable for any republications that occur.
A non-exhaust list of several states that follow the Second Restatement of Torts include:
- Alabama: Barnette v. Wilson, 706 So. 2d 1164, 1166 (Ala. 1997).
- Arizona: Larue v. Brown, 235 Ariz. 440, 333 P.3d 767, 773 (Ariz.Ct.App.2014).
- California: Shively v. Bozanich, 31 Cal. 4th 1230, 7 Cal. Rptr. 3d 576, 80 P.3d 676, 683 (Cal. 2003)).
- District of Columbia: Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005).
- Illinois: Tunca v. Painter, 2012 IL App (1st) 093384, 358 Ill. Dec. 758, 965 N.E.2d 1237 (App. Ct. 1st Dist. 2012).
- Kansas: Wright v. Bachmurski, 29 Kan. App. 2d 595, 29 P.3d 979 (2001).
- Massachusetts: Murphy v. Boston Herald, Inc., 449 Mass. 42, 48, 865 N.E.2d 746 (2007).
- Michigan: Tumbarella v. Kroger Co., 85 Mich. App. 482, 271 N.W. 2d 284, 290 (Mich. Ct. App. 1978).
- Texas: Stephan v. Baylor Med. Ctr., 20 S.W.3d 880 (5th Court of Appeals); Wheeler v. Methodist Hosp., 95 S.W.3d 628 (1st Court of Appeals).
Online defamation lawsuits and claims are ripe with twists and turns. Oftentimes, online defamation plaintiffs fail to contemplate that the other side (the alleged defamer) may not be in the wrong, as there are many defenses that defendants may rely on to avoid liability for defamation.
We go through all of the most common privileges and defenses available to defamation defendants below.
Online defamation involves a false statement of fact, something which can be proven true or false. The defense of opinion may be relied on by a defamation defendant in cases involving a statement(s) that is incapable of being proven true or false.
If a statement cannot be independently verified as true or false, then a defendant may invoke the opinion defense. However, statements that contain both opinion and fact may be actionable where the facts alleged are defamatory and false.
Simply labeling a defamatory statement as ‘opinion’ can’t still qualify as defamation. Should a third party on the receiving end of the statement (whether it be verbal or written) reasonably interpret a statement to be one of fact, then a statement can still be classified as defamatory.
U.S. Supreme Court Case: Milkovich v. Lorain Journal Co.
The defense of opinion generated considerable discussion in the 1974 landmark case of Milkovich v. Lorain Journal Co, where the U.S. Supreme Court effectively eliminated a separate constitutional privilege for statements of opinion by suggesting that the already erected constitutional safeguards protecting opinion were sufficient.
The Supreme Court established a straight-forward test for determining whether a statement is actionable for defamation, emphasizing that a statement will be actionable if it is “sufficiently factual to be susceptible of being proved true or false.”
In rejecting that a separate constitutional privilege for opinion should exist, the Supreme Court in Milkovich reasoned that an unqualified opinion privilege (in addition to the defense of opinion) would “disrupt the delicate balance between the constitutional need for vigorous public debate and the legitimate state interests in protecting personal reputations.”
Subsequently, several states have responded to the Court’s ruling by implementing an opinion privilege against libel claims into their respective state constitutions. Several states that have codified the opinion privilege into their constitutions include New York, Illinois, Ohio, and Texas.
Test For Determining Whether Statements Are Legally Protected Opinion
When determining whether a statement is opinion or not, most state courts apply a three to four-factor test that looks at the totality of different facts and circumstances. When applying a totality test to the statement(s), a court will generally approach their analysis of the factors from the perspective of a “reasonable reader” and may give varying degrees of “weight” to each.
For example, Ohio courts look to the following four factors to determine whether a statement(s) is opinion or fact:
- The specific language used by the defendant;
- Whether the statement(s) is verifiable;
- The general context of the statement; and
- The broader context in which the statement appeared.
Although tests vary by state, we will use the above elements from Ohio’s rule to explain and expand on each of these elements further below.
Specific Language Used
Ohio courts will look to the specific language used by the defendant when determining whether an allegedly false statement(s) is opinion or fact. During a court’s inquiry into the specific language used by a defendant, the court will focus on the common meaning ascribed to the words by an ordinary reader and whether the language has a “readily ascertainable meaning or is ambiguous.”
For example, in the 1974 case of Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, a union newsletter published the names of the plaintiffs under the heading “List of Scabs,” with an accompanying derogatory definition of the term “scab” (traitor).
The court considered the broad context of the statement, finding that the epithet “traitor” being used in the context of a highly publicized piece of union literature was figurative and not to be taken as an assertion that the employees named had “committ[ed] the criminal offense of treason.
Whether the Statement is Verifiable
Under the second factor that Ohio courts will look to, if an allegedly defamatory statement(s) “lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.”
For example, in Milkovich, a newspaper column contained a statement asserting that the plaintiff had lied while under oath – something that was easily verifiable as true or false.
General Context of the Statement
The general context of the allegedly defamatory statement(s) considers the reaction by the average reader viewing the words while also looking at how they appear in the entire publication as a whole to determine whether a statement should be classified as opinion or fact.
For example, courts have considered the general influence that genres of literature will have on an average reader. In the 1980 case of Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D.Mass. 1980), a court held that a statement alleging the plaintiff had never backed a winner in a presidential election was protected opinion due to its publication on the editorial page of a newspaper rather than the front page (where news is reported).
Broader Context of the Statement
When a court analyzes the broader context of an allegedly defamatory statement(s) they will focus on the context of the statement from the reader’s viewpoint.
In the aforementioned case of Old Dominion Branch, when the term “scab” was analyzed in a broader social context, the Court found that this type of “exaggerated rhetoric was commonplace in labor disputes” and readers would understand it to be opinion rather than an imputation of actual criminal conduct.
While the codification and implementation of online defamation laws in the United States are still somewhat recent, having only taken shape from 1964 onwards, the core ideas shaping modern-day online defamation and libel laws date back to the late-1700s.
The 1734 case of John Peter Zenger shaped modern-day libel laws in the United States as we know them. In 1734, John Peter Zenger was incarcerated for nearly one year after lodging “libelous” attacks against colonial governor William Crosby after printing copies of newspapers to voice his opinion against his actions. Represented by lawyers Andrew Hamilton and William Smith, Sr. Zenger argued that a statement should not be considered libelous if it is truthful. While a true statement may be damaging to a person’s standing in the community, it does not give rise to an actionable claim for defamation.
Zenger was ultimately acquitted by a jury, establishing the precedent that truth is an absolute defense to a libel lawsuit.
While the truth may hurt, it does not give rise to an actionable online defamation claim. Truth is an absolute defense to online defamation actions in the United States. Compared to the defense of opinion, the defense of truth is the exact opposite because a true statement(s) must objectively be capable of being proven true or false, then it will be actionable in court.
Truth and/or Falsity exists at the heart of U.S. defamation and libel law. Simply put, if a statement and/or statements in question are factually true, then there is nothing to dispute. Case closed.
Substantial Truth Doctrine
The defense of truth does not mean that a defendant needs to be truthful down to “every single detail.” Immaterial and minor inaccuracies occur. Under the substantial truth doctrine, courts will analyze a statement as a “whole” rather than one or two specific points. Therefore, even when a statement contains immaterial inaccuracies, a defendant may rely on the defense of truth if the “gist or “sting” of the statement is factually true.
For example, in one particular California defamation case involving a dental patient defendant who left a less than stellar review, the court found that while the defendant reported imprecise timelines and improperly interpreted staff motives, the core message of the review was still substantially true and thus unactionable.
The Defense of Privilege
The defense of privilege simply refers to a defendant’s right or legal enjoyment to do and/or say something at a certain time. In the context of defamation, the defense of privilege enables a person to communicate or publish a statement regardless of its contents. If a statement is not protected by any of the below defenses of privilege, then it will be deemed “unprivileged” and avail the party who communicated or published it to legal liability. A privilege statement on the other hand will not avail the party who communicated or published it to legal liability.
The defense of privilege exists to advance core democratic policies by ensuring free debate and open discussion, without the fear of legal repercussions. Should privilege cease to exist in the United States, many decision-making mechanisms, processes, and bodies as we know could fail to protect basic rights or may fail to do so as well as they do currently in our society.
Privilege is typically broken down into five fundamental types:
- Absolute Privilege
- Qualified Privilege
- Fair Report Privilege
- Statutory Privileges
- Neutral Report Privilege
Absolute privilege is as its name implies – absolute – and is an all-encompassing and immunizing form of legal privilege. Absolute privilege enables persons to publish or communicate specific statements, regardless of whether the contents of the statement are defamatory or not.
As absolute privilege is unqualified, it even protects persons who publish or communicate statements with actual malice or reckless disregard. Due to its all-encompassing nature, absolute privilege is typically found at the heart of our decision-making processes. Absolute privileges vary from state to state, but by in large include:
- Judicial proceedings;
- Official proceedings;
- Executive actions.
Without absolute privilege, persons in judicial, legislative, administrative, and official roles would be unable to present the “flipside of the coin” when drafting legal laws, policies, and regulations, leaving them subject to unintended consequences and ambiguities.
A judicial proceeding is a legal proceeding in court to enforce or determine legal rights. Common parties to judicial proceedings include judges, judicial officers, officials, and other persons performing judicial functions (including attorneys). Plaintiffs and defendants in judicial proceedings are also protected by absolute privilege.
For example, under North Carolina law, absolute privilege is not just restricted to statements made during trials. It includes every proceeding of a judicial nature before a competent court or tribunal, or before an officer with judicial or quasi-judicial powers. It even extends to statements made in affidavits filed in mental commitment proceedings.
Similar to judicial and legislative proceedings, official proceedings are quasi-judicial proceedings that are typically limited to a specific area of authority and are not bound by precedent in the common law.
Unlike judicial and legislative proceedings, which follow strict rules of evidence and procedure, official proceedings follow less rigorous guidelines. Official proceedings commonly manifest themselves as proceedings before administrative agencies and boards, such as hospital committees, zoning panels, and professional boards.
For example, in the Illinois case of Belluomini v. Zaryczny, the court walked through six powers that quasi-judicial bodies possess:
“(1) [T]he power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions or impose penalties.”
The court also noted that it is not necessary for a body to possess all six powers to be considered a quasi-judicial body.
Executive actions refer to the rights of the president of the United States, other members of the executive branch, and executive officers of a state to maintain confidential information and communications and resist outside oversight by other branches of government in relation to that information.
For example, in the 1941 Ohio case of Bigelow v. Brumley, a clergyman brought a defamation action against the governor of the Ohio General Assembly (the state legislature) after referring to him as a “paid lobbyist for the Single Tax Movement.” The court held that “officials appointed by the governor to prepare information to be distributed to the public concerning a proposed constitutional amendment in accordance with a statutory duty to do so were entitled to absolute privilege.”
The court further noted that the purpose of absolute privilege is to encourage government officials to perform important public functions in their official capacity without fear of being held liable for damages in defamation actions.
Commonly referred to as “common interest privilege,” qualified privilege is a less robust form of privilege that may be invoked in specific circumstances (and before a specific audience).
Unlike absolute privilege, which is far more limited in its scope of categories it extends to, a qualified privilege does not always extend to specific situations. Rather, a qualified privilege will apply to circumstances where communications are made in good faith to uphold a specific interest and the audience on the receiving end of the statement is limited in size/scope.
Said more simply, a qualified privilege enables a person to communicate or publish a statement for good reasons, to a small audience who they really think has an interest in knowing what the person has to say.
For example, qualified privilege cases in Ohio hold that the privilege protects statements and publications that:
- Were made in good faith;
- Uphold an interest;
- Are limited in scope and purpose;
- Made on a proper occasion; and
- Made in a proper manner and to proper parties only.
As qualified privilege is not as robust as an absolute privilege, it does not immunize persons who communicate or publish a statement with actual malice or reckless disregard. Qualified privilege is generally granted to persons in positions of trust and authority, who owe a social, moral, or legal duty to society.
Several common examples of qualified privilege include:
- Professors and employers writing reference letters for former students and employees,
- Persons presenting important information and facts at public meetings and local government forums.
- Communications made to police about their investigations of a crime.
- Communications made by day care administrators to state agencies concerning suspected child abuse.
- Reports of judicial proceedings.
- Statements made by fraternal and social organizations and their members when discussing club business and disciplinary matters.
For example, in one New York defamation case, a court found that a newspaper editor’s comment that a columnist plagiarized a column in a communication to the editor-in-chief and the columnist was qualifiedly privileged because all of the parties shared a “common interest.”
Journalist Shield Law
Journalist shield laws are statutes that grant journalists either absolute or qualified privilege to refuse to testify at a legal proceeding and disclose confidential information and sources that were obtained in the course of newsgathering.
As of 2020, most U.S. states have journalist shield laws or other protections in place protecting journalists from being compelled to testify or produce confidential information obtained in the course of their newsgathering duties.
A statutory privilege is a privilege that is prescribed for and outlined by statute. Statutory privileges codify specific situations where a party may publish and communicate specific statements (including defamatory ones).
For example, Section 10.2 of Illinois’ Hospital Licensing Act creates immunity from civil liability for hospitals, hospital administrators, and hospital staff for the conduct of hospital peer review committees (and other committees) whose purpose is to improve patient care and quality.
Indiana on the other hand has a statute in place protecting persons that make statements to the Indiana Employment Security Division relating to claims of unemployment.
Fair Report Privilege
The fair report privilege is a privilege granted to persons and organizations that rely on legislative, administrative, and other official proceedings and reports and then publish the information contained within those reports in good faith. Also known as fair comment privilege, the fair report privilege exists to further an informed, democratic news media and the general public and fair criticisms of governmental activities.
Most states that recognize fair report privilege require that the person or organization that republishes the official information in question do so in a fair, complete, and accurate manner. Similar to the Substantial Truth Doctrine, which looks at whether the “crux” of an allegedly defamatory statement is substantially true, courts will typically analyze whether the republished report is substantially similar to the original report or document.
For example, fair report privilege will exist in Massachusetts “…’ if its “gist” or “sting” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”
Most states also require that the person or organization that republished such information properly attributes it to the source. Those who do not republish the manner in a complete, fair, or accurate manner will avail themselves to defamation liability.
Not all states recognize fair report privilege, so it is important to brush up on your state’s defamation laws.
Without the protection of fair report privilege in place, news media and other organizations would be prevented from writing about and publishing important information from official government records, administrative reports, and statements made by the government and public officials.
Common situations where fair report privilege applies include:
- Complaints made about public and government officials;
- Statements made by judges during a trial;
- Facts recorded in a police report and information obtained from police department press releases;
- Summaries contained in government documents and reports (court records, open meetings, and press releases).
Fair report privilege would most likely not apply to statements of gossip, draft reports and press releases, and other unofficial statements, documents, and reports.
Neutral Report Privilege
Commonly referred to as “neutral report privilege,” neutral reportage is a common law defense and privilege that protects persons and organizations who republish unverified facts and allegations concerning public officials and public figures.
Although neutral reportage is not widely adopted, it exists to protect journalists, news organizations, and other media companies that have an interest in reporting on important (and sometimes highly contentious) public issues. For the defense of neutral reportage to succeed, defendants must almost always prove that the reporting was both unbiased and in the public’s best interest.
Neutral report privilege is a limited exception to the hardline rule of republication, which holds a republisher of defamatory material just as liable as the original publisher of the defamatory statement(s). Without neutral report privilege, persons that publish statements that were communicated by another party, and subsequently found to be defamatory, would be held liable for the original defamatory communication.
Several examples where state courts have applied neutral reportage include:
- Statements and reports made by one public figure about another public figure.
- A land developer declaring another developer “unscrupulous” during a town meeting.
- A newspaper report alleging a political campaign brochure accused the county’s Italian-American judges of having ties to the mafia.
Neutral reportage privileges may also be invoked in cases where a news organization has reported on false and defamatory allegations made by one prominent public figure about another.
Statute of Limitations
A statute of limitations defense is one of the most important factors that a defamation plaintiff (and attorney) should first assess before filing an online defamation lawsuit. A statute of limitations is a time-limiting mechanism placed on legal actions and a plaintiff’s ability to bring them. It is in the best interests of a smooth-running judicial system that outdated cases with lacking evidence are not clogging the courts.
At a statute of limitation’s very core is the intent to create a just and fair legal system. Specifically, a statute of limitations promotes:
- Reasonable diligence by plaintiffs: As noted above, the U.S. legal system is already heavily bogged down and clogged with legal cases, therefore it is in the best interests of a well-oiled judicial system that plaintiffs do not file a lawsuit years after interest in adjudicating it has expired.
- Preservation of key evidence: Evidence is often misplaced or destroyed after a reasonable time, which can make for an uneven playing field should plaintiffs be allowed to bring their claim many years after a cause of action accrued.
- Elimination of “more cruelty than justice”: As a statute of limitations ensures that lawsuits are brought within a reasonable timeframe and that defendants receive sufficient notice of impending action, this ultimately eliminates “more cruelty than justice.”
When it comes to defamation lawsuits, the general rule is that the statute of limitations will begin running on the date that the defendant first publishes or communicates the defamatory statement(s). However, there is an exception to the general rule, known as the “discovery rule” which will apply when the subject of the defamatory publication only discovered it sometime after it was published.
The discovery rule varies by state. But it will generally prevent a statute of limitations from tolling until the date on which the subject of the defamatory publication actually discovered it, or should have reasonably learned of it. For example, a D.C. Circuit Court applied the discovery rule in a libel suit where defamatory emails were only sent to a “limited audience” and did not include the plaintiff.
Notably, this rule does not apply in online defamation cases because a key element to this exception is that the defamatory publication was not accessible to the Plaintiff by publically available means. In most online defamation cases, content is publicly available via search engines and other tools, so this exception cannot be applied.
Single Publication Rule
The single publication rule is an exception to the general rule of republication and a time-limiting restriction placed on a defamation plaintiff’s ability to bring multiple defamation lawsuits for a single defamatory online publication. The single publication rule exists to prevent defamation plaintiffs from perpetually lodging defamation lawsuits against a defendant for subsequent publications of the same defamatory material that is essentially all part of the same publication.
However, substantial changes to the defamatory content or publication will give rise to an entirely new libel action. Small or immaterial changes to a defamatory publication on the other hand will not restart the statute of limitations in most U.S. states.
For example, in one New Jersey defamation case, an employer and professional rating website published a defamatory article and then later republished it with slight alterations. The court ultimately found that the changes made were not substantial enough to constitute a republication.
State By State Statute of Limitations
Most U.S. states boast a one to two-year statute of limitations for both libel and slander lawsuits. Slander law statutes of limitations are generally shorter than libel statute of limitations due to the spoken nature of the evidence. If you are the target of online defamation (libel), it is important to stay on top of your state’s statute of limitations timeframe as to not miss out on being able to file a libel lawsuit.
Below is a state by state chart of all U.S. state defamation laws and their respective defamation statute of limitations.
|One Year||Two Years||Three Years|
|District of Columbia||Florida||Rhode Island**|
|New Jersey||North Dakota|
|New York||South Carolina|
|North Carolina||South Dakota|
*Arkansas applies a one-year limit to slander actions and a three-year-limit to libel lawsuits.
**Rhode Island applies a one-year limit to slander actions and a three-year-limit to libel lawsuits.
*** Tennessee applies a six-month limit to slander actions and a one-year limit to libel lawsuits.
Innocent Construction Rule
The innocent construction rule is a legal principle that construes allegedly libelous and defamatory statements as “harmless” when the statement(s) is so ambiguous that it is capable of having both defamatory and non-defamatory interpretations. Courts need not strain to find an unnatural innocent meaning to a statement(s), but must adopt an innocent (non-defamatory) interpretation if it is reasonable.
The innocent construction rule requires courts to consider a written or spoken statement’s context in which it was published, the words at the heart of the statement(s) and their natural and obvious meaning, and their implications.
Most U.S. states recognize the innocent construction rule. However, there has been considerable confusion surrounding the application of the innocent construction rule as it presents “something of a paradox” – the paradox being the requirement that a court give both a natural and obvious meaning to an allegedly defamatory statement at the same time as an “innocent” one whenever possible.
Libel-Proof Plaintiff Doctrine
Defamation law recognizes certain plaintiffs that have such a low standing in society that a false statement or publication about them actually fails to cause damage to their reputation. This type of plaintiff is referred to as the libel-proof plaintiff.
Libel-proof plaintiffs are rare in today’s age, however, courts have found that libel-proof plaintiffs may exist in cases involving small-town drug dealers and habitual criminals. This is due to the community’s heightened familiarity with the person in question.
In the 2006 Massachusetts defamation case of Holland v. Kwiat, the defendant argued that the plaintiff in question was “libel-proof,” as he was already under indictment for a vicious murder at the time of the statements.
Incremental Harm Doctrine
The incremental harm doctrine is a rarely applied legal doctrine due to its limited scope and enables defamation defendants to skirt liability for statements that cause damage failing to exceed the harm caused by the non-actionable statements of the same publication. At the incremental harm doctrine’s core, if there is such little damage or actual harm felt by the plaintiff, then no actionable defamation claim shall exist.
Generally, if a defamation defendant can prove that the statement or publication in question would have the same effect on the plaintiff’s reputation (and the damage suffered) should the “defamatory section” be removed altogether, then a defendant will not be held liable for defamation.
For example, New York courts will compare the defamatory portions of a statement or publication versus the non-actionable portion to determine whether there is substantial harm and an actionable claim exists.
Not all U.S. states have adopted the incremental harm doctrine.
Consent is an absolute defense to a charge of defamation and will protect a defamation defendant from liability for publications or statements made that the plaintiff consented to. A person may give consent to another person in the form of words, actions, or other behavior (this includes inaction as well). Types of consent include:
- Expressed consent,
- Informed consent,
- Implied consent, and
- Unanimous consent.
When giving consent to another person, the consent giver may define the extent of the privilege given. If the limitations set by the consent giver are not adhered to and statements or publications are made outside of the defined consent scope, then the publisher may be liable for defamation.
Simply put, if a defamation plaintiff gave the green light to a defendant to publish or communicate a defamatory statement, then they cannot later sue them for defamation.
For example, in one Florida workplace defamation case, an employee who repeatedly asked for the reason he was terminated was prevented from suing for defamation after his employer answered, “Because of [your] criminal lifestyle.”
Wire Service Defense
The wire service defense is rarely used in the world of online defamation law defenses, as it provides immunity for news organizations and online media who publish statements received from “reputable news services” via wire service.
Not every U.S. state recognizes the wire service defense, therefore we recommend consulting an experienced Internet attorney for legal advice if you are unsure of whether it applies to your online defamation issue.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act (CDA) is a federally enacted law that provides immunity from liability for both providers and users of interactive computer services that publish information and content provided by third parties. Section 230 reads:
“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.”
When determining whether Section 230 immunity will apply to an interactive computer service, most U.S. courts apply a three-pronged test.
- The defendant must be a “provider or user” of an “interactive computer service”;
- The cause of action asserted by the plaintiff must treat the defendant as the actual publisher of the objectionable content; and
- The objectionable content must have in fact been “provided by another information content provider.”
If all three prongs of the immunity test are satisfied, then immunity will be absolute and a bar to suit.
For example, Section 230 of the CDA is the reason why you cannot sue Google for online defamation and other malicious content, as the content is posted to its platform by third parties.
There are however several notable exceptions to Section 230 of the Communications Decency Act, where immunity will not be granted to a website for content promoting or involving:
- Intellectual property infringement;
- Criminal law violations;
- Sexual content involving minors;
- Sex trafficking;
- Promissory estoppel;
- Content materially altered by the website;
- Electronic Communications Privacy Act of 1986.
Section 230 of the Communications Decency Act does not protect interactive computer services against criminal prosecution under federal statutes. This means that websites that encourage and profit from crimes of sexual victimization of children, sex trafficking, online extortion, sextortion, cyberstalking, revenge pornography, and other forms of online harassment are not immunity from liability under Section 230.
Short for “Strategic Lawsuits Against Public Participation,” SLAPP suits are lawsuits filed against a person or entity to censor, burden, or intimidate them into abandoning their opposition. In most SLAPP lawsuits, plaintiffs generally do not expect to win their lawsuit, as their primary goal is to pressure a defendant into giving up their criticism or claim.
SLAPP lawsuits are an incredibly powerful defense. It is critical that a defamation victim contemplating litigation anticipate whether a defendant may initiate a SLAPP suit to pressure them into abandoning their claim.
Anti-SLAPP laws protect persons and entities from these frivolous lawsuits to ensure that freedom of speech is not impeded (or eroded). They also act as a safeguard to prevent the U.S. judicial system from being overloaded with frivolous defamation lawsuits. Common properties of Anti-SLAPP laws include:
- Enable a defendant to file an early motion to strike or dismiss the suit on grounds of protected speech;
- Stays all discovery (something that greatly reduces the costs of litigation for the defendant);
- Reimbursement of reasonable legal fees for the defendant;
As of May 2020, 30 states and the District of Columbia have Anti-SLAPP laws in their books protecting defendants from frivolous lawsuits. The states with Anti-SLAPP laws are:
- New Mexico
- New York
- North Carolina
- Rhode Island
- District of Columbia
The scope of each Anti-SLAPP statute can greatly vary by state, with some states having narrowly drafted statutes limiting actions to specific persons (ex. public applicants), and other states boasting statutes that may be broadly construed by courts.
For example, New York’s Anti-SLAPP statute is considered somewhat narrow as it is designed to protect parties against SLAPP suits which are brought by public applicants. California’s Anti-SLAPP is considered broader (and one of the strongest) and allows defendants to file a special motion to strike when the matter concerns itself with conduct that falls within the rights of free speech or petition.
Not all states have laws in place resembling that of an Anti-SLAPP statute. For example, as of 2020, Ohio does not have any Anti-SLAPP laws in place (or any laws resembling them). Ohio defendants may however file an abuse of process tort counterclaim in cases where they believe they are being frivolously prosecuted.
How to File a Defamation Lawsuit (and Win)
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 over at our U.S. defamation laws blog post.
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:
- Incremental Harm Doctrine
- Wire Service Defense
- Libel Proof Plaintiff Doctrine
- Section 230 of the Communications Decency Act
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:
- Invasion of privacy claims;
- Tortious interference claims;
- Intentional infliction of emotional distress (IIED) claims;
- Civil harassment claims;
- Unfair trade practices claims;
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.
- 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 online 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.
How to Deal With Defamation & Fight Back
Now that you understand the key elements of defamation and the most crucial U.S. defamation laws, it is critical to recognize that while filing a lawsuit is an effective tool to combat defamation, it is only one of the many ways that you can fight back and restore your reputation. In this section, we walk through five effective strategies to fight back against online defamation. These include:
- Ignoring defamation;
- Responding to defamation;
- Suppressing defamation with online reputation management services;
- Removing defamation via nine different methods; and
- Filing a defamation lawsuit.
When you are the target of defamation and other false allegations, it is critical to approach it methodically and with a well-thought-out game-plan. Failing to do so could ultimately result in the defamatory material being distributed and publicized further, substantial damage being done to you or your business’s reputation, and even manifestation of physical and emotional symptoms such as emotional distress, anxiety, and depression.
Below are five tips for dealing with defamation of character, so that you are better prepared to fight back.
Depending on the scope of the defamation in question and threat (or lack thereof) that it poses to you or your business’s reputation, the best approach in a small number of cases may be to simply ignore it.
In most cases, ignoring defamation is never a good decision. It usually will never make the problem go away or solve it. However, ignoring online defamation may be an option in cases where the defamatory content is easily buried or unlikely to cause any actual damage to your reputation. Ignoring defamation may also be an option when the gist of the statement is unbelievable and weak and no one is paying attention to it. Sometimes there is no need to bring any more attention to something that no one knows about or will ever find.
Sometimes, the risk that your response will lead to the “Streisand Effect” is so high that ignoring the content altogether is potentially better than drawing more unwanted attention to it and causing significant damage. This must be weighed carefully.
It is critical to make sure that you fully understand the scope and potential consequences of the defamatory content at issue before choosing to ignore it. We recommend that you speak with an experienced defamation attorney to understand if it is right for your situation.
Respond to It
Responding to online defamation and false Internet attacks can be right in limited situations, however, you must tread carefully. Generally, we don’t recommend that businesses or individuals should respond to defamatory attacks directly in the same forum that they were made, as it can draw unwanted attention to the matter and lead to increased visibility in Internet search results.
However, if you are facing a PR crisis, or are a national brand or business that garners high volumes of online traffic and customer reviews, then it’s definitely much more appropriate to respond to defamation and negative complaints on a regular basis.
Responding to online defamation should be your last resort, and reserved for cases where you are sure that it likely will not ever be removed by the website or platform and where “going the legal route” is not in the cards for you and your situation.
For business considering whether to respond to fake or negative online reviews, it is important to consider the following:
- Speed and responsiveness;
- Method of contact;
- Confidentiality restrictions;
- Appropriate remedy; and
- Anything else reasonably possible.
Speed & Responsiveness
When responding to online defamation, do so quickly. A quick response can let the online defamer know that you mean business and could lead to a website removing the content before the defamatory content is even cached in Google’s search results.
For businesses and professionals responding to online reviews, industry standard dictates that businesses should respond within 48 hours of posting. It is not always easy to locate defamatory posts, fake reviews, and other false content as it appears, so we recommend setting up a Google Alerts account to receive notifications anytime your name, business, or brand is mentioned online.
Customers are anxious to hear from you, so do not keep them waiting!
Method of Contact
How you contact an online defamer can significantly impact whether the defamation in question is removed or stays online. This is especially relevant for businesses and professional services.
If possible, contact the defamer by phone call. A phone call can turn an impersonal situation into a personal one and help assure a client or customer that their concerns are being handled properly. It is far too easy for messages to be misinterpreted on the Internet. If a phone call is not possible, offer the defamer a direct line of communication, such as email, Messenger, or Skype.
However, be careful not to write anything that may show up in a subsequent revision to the reviewer’s original post.
Some businesses, professions, and industries are bound by legal and ethical confidentiality restrictions which prohibit them from divulging certain information in a public response.
Specifically, doctors and lawyers should think twice before responding to fake online reviews, as failing to adhere to confidentiality restrictions could lead to hefty fines or having their professional license revoked.
If your professional industry boasts a rigorous set of ethical and confidentiality guidelines, always make sure to thoroughly acquaint yourself with them before responding to a customer or client.
Listen to the Customer & Be Prepared to Offer an Appropriate Remedy
For businesses and services that do choose to respond to online defamation by customers or clients, try to assess what they are really after. Most of the time the customer just wants their voice to be heard, so take this to heart, take a step back, and simply listen to what they are trying to say. Let them know that you understand where they are coming from and that the problem will be addressed.
However, sometimes just listening is not enough. It is important to offer solutions to their problems. lIs the online defamer seeking an apology? A refund? A store credit?
A 2015 Customer Rage Study found that businesses and companies that offered both an apology and refund were rated twice as high for customer satisfaction than those that solely offered a monetary refund. Do however refrain from offering a reward to online defamers where their demands are clearly extortionary.
Do Everything Reasonably Possible, But Do Not Give Into Bullies & Extortion
Should attempting to open a constructive dialogue, offering a remedy, and seeking feedback fail to lead to the review’s removal, conduct one final assessment to determine whether there is anything else you can reasonably do to remedy the situation.
Oftentimes, just because you can remove the review by other means, this does not mean that it is the end of your problem. It is extremely easy for disgruntled and aggrieved reviewers to create accounts and write reviews on other popular review platforms. Always strive to resolve the situation at the source.
However, it is important to remember that sometimes consumers just cannot be reasoned with and nothing you say or do will suffice. It is also equally important to understand that there is a line that no business should ever cross, and that is giving into cyberbully and extortionist demands. Not only does this create a bad precedent that your business is an easy target, but it almost certainly leads to more online attacks, threats, and demands.
Suppress It: Online Reputation Management
The goal of online reputation management is to suppress online defamation and other negative content in Internet search results by replacing it with positive, constructive content. There are two primary ways to suppress online defamation in Internet search results:
- Proactively suppression; and
- Retroactive suppression.
Proactive online defamation suppression involves the creation of positive content to offset the effects of future defamatory and negative content, while retroactive suppression involves the promotion of positive content to offset existing defamatory and negative content.
Oftentimes, it can be difficult to know whether online reputation management or legal services is the right option to remove defamatory online content. Getting content removed rather than suppressing it is always a better solution. However, when it comes to online reputation management vs. legal services to remove online content, there are often situations where legal content removable is not feasible or time may be of the essence so online reputation makes sense to engage in simultaneously with legal removal.
Legal services are usually a better option, but online reputation management can be a better option in the following limited cases:
- Where the content in question is still newsworthy;
- The content has already gone viral;
- The content concerns a serious crime;
- A lawsuit or legal action will take too long.
For those looking to comprehensively monitor and protect their online reputations, utilizing both online reputation management services and a legal content removal strategy can be extremely effective at combating online defamation and other Internet attacks.
As famed investor Warren Buffet once said, “It takes 20 years to build a reputation and five minutes to ruin it.” The reality of online defamation is that the longer it stays online, the higher the likelihood it will rise in search result rankings, be seen by more eyes, and cause more damage to a person’s or business’s livelihood. When it comes to removing online defamation, proactivity beats reactivity any day of the week.
The tort of defamation is not what it used to be. Instead of the pre-Internet days where a defamatory statement or publication rarely stood to reach eyes or ears outside of a local community or group, the Internet now enables anyone with a laptop, smartphone, or tablet to publish defamatory statements that can be heard or read across the globe.
Removing online defamation from the Internet and search engines as quickly as possible is imperative for protecting your online reputation and minimizing damage to your personal and professional life. There are countless ways to remove online defamation from the Internet, such as:
- Obtaining a court order;
- Sending a cease and desist letter;
- Sending a DMCA request;
- Making an editorial request to a website;
- Flagging and reporting for Terms of Service violations;
- Asking the online defamer to remove it;
- Negotiating with the website where the defamatory content is posted;
- De-indexing content from search engine indexes;
- Asking the website to add a no-index tag to the URL.
There are also certain websites that online defamation attorneys have consistently worked with in the past to remove defamatory content from. Having removed high volumes of content from said websites frequently, some online defamation attorneys can guarantee future content removals from the website(s). These are commonly referred to as Guaranteed Content Removals.
Go the Legal Route: When to File a Defamation Lawsuit
When to file an online defamation lawsuit is often the first question asked by online defamation plaintiffs. After all, not all online defamation removals are secured through litigation. The decision to litigate and file an online defamation lawsuit is not one that should be taken lightly, as there are many important factors to be considered before deciding whether to file a lawsuit or not.
Victims of online defamation should first assess whether or not they even have a viable libel claim. Remember, you are dealing with online defamation, not an oral statement, and will thus be filing a libel suit rather than a slander lawsuit. Every online defamation matter is unique and only an experienced online defamation attorney who is familiar with online defamation lawsuits and the state’s laws where the action will be filed will be able to assess the true merits of the case.
Online defamation attorneys will typically analyze and assess the following factors to determine whether or not a victim has a viable online defamation claim.
- Whether the information or statement(s) is true or false;
- Whether the information or statement(s) is constitutionally protected;
- Whether the information or statement(s) is offensive or invasive of an individual or business’s privacy;
- Whether the information or statement(s) violates intellectual property laws;
- Whether the information or statement(s) uses an individual or business’s name or likeness unlawfully and without consent;
- Whether the information in question was unlawfully obtained;
- Whether the claim is “still fresh” under relevant statute of limitations laws.
Post-assessment of the above factors, should there be any major red flags concerning the merits of your online defamation matter, then more often than not, filing an online defamation lawsuit will not be the answer to resolve it.
For example, having a meritorious and non-frivolous defamation case may be necessary for important steps in the legal process, such as subpoenaing anonymous online defamers and overcoming opposition counterclaims.
Even in what is commonly referred to as a “default case” where the defendant fails to show up, the merits of a plaintiff’s online defamation case must still be proven to a court of law.
Hiring a Defamation Lawyer & Law Firm
Has someone posted something false and malicious about you on the Internet? Or, has a reviewer left a clearly fake and defamatory review about your business or professional service? Or, maybe a news publication has published an inaccurate and damaging story about you and you want it removed.
Whether you decide to tackle your defamation issue by yourself or seek assistance from an experienced defamation lawyer, it is important to fully understand and weigh your decision carefully.
In this section, we will walk you through the:
- Benefits of hiring a defamation lawyer and law firm,
- Types of defamatory content defamation lawyers handle, and
- How much a defamation lawyer costs.
Benefits of Hiring a Defamation Lawyer & Law Firm
Just as you would not hire a locksmith to handle a plumbing issue, you would not hire a lawyer lacking familiarity with online defamation to handle an online defamation issue.
Online defamation attorneys are often asked “Why should I hire an online defamation lawyer to help me? or “What is the difference between an online defamation attorney and a regular attorney or online reputation management company when it comes to removing online defamation?”
The benefits of hiring an online defamation lawyer to remove defamatory online content are endless.
Not only do online defamation lawyers and law firms know the ins and outs of U.S. defamation laws and have proven experience removing libelous statements and damaging online content, but they also:
- Understand how to protect individuals and businesses from all types of cyber threats (such as online extortion, sextortion, blackmail, and harassment);
- Stay up to date with the latest technological and investigative practices to efficiently find solutions for an individual or business’s legal matter;
- Are sympathetic advocates who can step into the shoes of their clients.
- Are bound by a professional and ethical governing body.
In addition to removing online defamation, online defamation lawyers can also help you remove other types of damaging online content, control what appears in Internet search results, and improve your online reputation.
Online defamation lawyers make multiple content removal requests per day and have a comprehensive understanding of what arguments are most persuasive when asking a publication, blogger, or website to remove content. They also already have an arsenal of contacts at websites, platforms, and news outlets to facilitate quick and seamless removals.
Online defamation lawyers know how to turn negative online content into a positive by reconciling disputes, implementing constructive reputation repair content strategies, and working with PR agencies and marketing professionals to craft a positive online presence for you or your business.
Regardless of whether you hire an online defamation lawyer, it is important to weigh your decision carefully by familiarizing yourself with their benefits and how they can assist with your legal issue.
Online defamation manifests itself in countless forms and can pose a serious threat to you or your business’s reputation should it not be stopped and removed as soon as possible.
Below are the most common types of online defamation issues defamation attorneys handle for both individuals and businesses.
Types of Problems Online Defamation Attorneys Can Help With
Since the early 2000s, which saw the rise and mainstream of user-generated content platforms on the Internet, defamation has evolved from a construct limited by inefficient channels of communication (such as word of mouth, newspapers, and magazines) to something that can easily be perpetrated by anyone with a computer, smartphone, or tablet.
The Internet has enabled online defamation to become a global-scale phenomenon.
Online defamation now takes all shapes and forms. From false allegations against former spouses on cheater shaming websites to fake consumer reviews and complaints, all the way to fabricated employer reviews.
Minc Law Defamation Tip: In the global context of online defamation and libel laws, the United States is considered a pro-defendant defamation jurisdiction due to its long-standing enforcement of the U.S. Constitution and Free Speech. On the other hand, European and other Commonwealth countries are generally considered pro-plaintiff defamation jurisdictions.
Online Defamation Problems Faced By Individuals
With such a staggering percentage of our social interactions occurring online, it is no surprise that a high percentage of those turn sour and lead to devastating effects for individuals. Not only can defamatory online attacks and posts about an individual cause feelings of embarrassment, paranoia, and isolation, but they can also result in physical side effects such as mental anguish, anxiety, and depression.
Online defamation attacks against individuals commonly manifest themselves in the form of:
- Social media attacks, posts, comments, and other media;
- Gossip and shaming websites; and
- Internet blogs and discussion forums.
Social Media Defamation & Libel
It is 2020 and almost everyone has a social media profile (or several!). According to a 2019 Q4 global digital report by Hootsuite, there are a recorded 3.725 billion active social media users, with each person having at least 7.6 social media accounts.
Whether it is a Twitter account to post short 280 character tweets about politics and social affairs, a Facebook account to connect with long-lost relatives, or a YouTube account to vlog daily activities and life, nearly everyone has an online presence in one way or another. And, if traditional social media platforms and applications were not consuming enough of our time, there are even social media apps for people to rate other people based on romantic, personal, and business relationships.
Due to social media’s pervasive presence in our lives, it is no surprise that social media websites have become hotbeds for online defamation. Social media defamation takes all forms, such as:
- False posts, comments, statuses, and group messages on Facebook,
- Fake Twitter accounts used to harass persons and spread untrue information,
- Malicious YouTube videos lodging baseless and false accusations,
- Fake Instagram profiles and nasty comments, and
- Fake employee reviews, endorsements, and posts on LinkedIn.
Reporting online defamation to social media websites such as Twitter, Facebook, and YouTube via their online reporting channels is not always an effective way to remove defamatory posts and comments, so it is recommended that victims reach out to an experienced online defamation lawyer or law firm to explore their removal options.
Gossip & Shaming Websites
The idea of publicly shaming individuals and businesses is not a novel one and has existed since society’s very early days. Before the rise of the Internet, public shaming and ridicule were relegated to and controlled by paper news publications and word of mouth. However, as user-generated content platforms and applications such as Facebook, Instagram, Twitter, and LinkedIn grew in popularity, so too did online public shaming.
Now, instead of individuals relying on word of mouth to spread defamatory messages and comments about a person or business, they can do so from the comfort of their own home and with the press of a button (whether it by computer, phone, tablet, or another electronic device).
Public shaming websites are popular platforms for individuals and businesses to post heavily biased narratives about a person, business, service, or product. Due to the breadth of available platforms on the Internet, public shaming websites now manifest themselves in many forms, such as:
- Social media websites, applications, and platforms;
- Online forums and bulletin boards;
- Consumer review and complaint websites;
- Gossip websites; and
- Social networking sites.
Due to a mix of factors, such as high user traffic, hardline content removal policies, and minimal website contact information, every person and business looking to monitor their online reputation should keep an eye out for the following public shaming websites:
An unfortunate reality of public shaming websites is that they are legal and protected under a federally enacted piece of Internet legislation known as the Communications Decency Act. Furthermore, popular public shaming and cheater websites are often commonly scraped by other similar websites, meaning that unwanted defamatory content and posts show up on more than just the original site they were posted to.
Internet Blogs & Discussion Boards
Blogs and discussion boards are platforms that enable users to provide commentary on particular topics, ranging from social issues to sports. Due to near-blanket protection under the controversial piece of Internet legislation known as the Communications Decency Act (CDA), Internet blog posts and discussion boards are two of the most popular platforms used by online defamers and Internet trolls to attack individuals online.
Just as telephone companies are not held liable for the unlawful acts discussed across their lines, Internet blogs and discussion boards will not be held liable for online defamation posted to them by third-parties unless an exception to the CDA applies.
Online Defamation Problems Faced by Businesses
The reality of today’s digital landscape is that most consumers and clients formulate their first and sometimes the only opinion about a business or service based on what the Internet tells them. Defamatory online posts, fake and negative reviews, consumer disputes and complaints, and scam accusations can have devastating effects on a business’s ability to operate.
Targeted online defamation attacks not only can keep your customers and clients away and strain business partnerships, but they may also lead to shuttering your doors for good. It is not just small businesses that suffer at the hands of online defamation either, corporations and partnerships can also be defamed online.
Online defamation attacks against businesses and professional services generally manifest themselves as:
- Consumer complaints;
- Consumer reviews and ratings;
- News media and other online publications;
- Blogs and comments on popular discussion boards;
- Scam reports; and
- Employer reviews.
Consumer Complaint Websites
Consumer complaint websites, also known as consumer advocacy websites, are popular online platforms where consumers and customers can share their opinions, experiences, and thoughts about products and services.
Consumer Review & Rating Websites
Consumer review and rating websites are platforms where consumers, clients, patients, and customers can review businesses and services. Consumer review and rating websites generally assign a numeric score to each reviewed business profile, so that consumers can easily sort through them and weed out low-quality services.
To survive in today’s cutthroat digital review landscape and marketplace, all businesses must know how to spot a fake online review and report fake online reviews (especially fake Google reviews) to the platform they are posted on. Quickly identifying fake business reviews could be the difference between keeping your doors open and having to close for good.
News Articles & Online Media Publications
Online defamation in the news and online media publications can come in many forms, from defamatory and outdated news articles about a business to embarrassing write-ups, reviews, and press releases, all the way to damaging photographs and videos.
Furthermore, defamatory and damaging statements in news articles and publications can be extremely difficult to remove, as there is often editorial pushback and a strict interpretation of First Amendment rights.
The most common reasons the news media does not remove online articles and other information is because:
- They are not required to do so;
- The content is a public record and accurate report;
- Fair report privilege applies and it is a matter of public concern;
- There is no harm done to the article subject.
There are also several other reasons why the news media does not typically remove online news articles, such as antiquated editorial practices and vague internal unpublishing guidelines.
Blogs & Discussion Forums
Defamatory statements on blogs and discussion forums generally manifest themselves as forum posts, comments, and fake profiles.
Popular blogs and discussion forums that are hotbeds for online defamation and can significantly impact a business’s bottom line and livelihood include:
- TMZ; and
- Business Insider.
Social Media & Professional Networking Websites
Popular social media and professional networking websites include Facebook, Instagram, Twitter, LinkedIn, and more.
Common defamatory attacks on social media and professional networking websites include: fake business and personal profiles, malicious posts and comments, and other harassment (including online impersonation and catfishing).
Scam reporting websites are user-generated content platforms where users “expose” business scams, corrupt business practices and services, and unethical behavior by business owners and professionals.
Employer Review Websites
Websites such as Glassdoor, Indeed, and The Job Crowd, provide platforms for current and former employers to provide detailed information and reviews about their employers.
However, employer review websites have become hotbeds for false allegations against businesses and employers, malicious and nasty comments about products and services, and other workplace defamation intended to cause damage to an individual, business, or company.
Cost of Hiring a Defamation Lawyer & Filing a Defamation Lawsuit
Cost is a primary concern when it comes to hiring a defamation lawyer and filing an online defamation lawsuit. Every online defamation case is unique and there is no one-size-fits-all solution for determining how much an online defamation lawyer or lawsuit will cost.
Online defamation lawyers typically charge one of three fee structures, retainer fee, flat fee, or contingency fee. Each fee structure has its pros and cons, depending on the specific nature of your online defamation issue and financial means.
Online defamation pricing can typically be broken down into three categories, each of which is influenced by its own set of factors:
- Guaranteed content removals;
- Hourly non-litigation services;
- Hourly litigation services;
Guaranteed Content Removal Costs
Guaranteed content removals are a specific type of content removal that is guaranteed, otherwise, an online defamation victim will receive a refund for the content not removed. Because online defamation attorneys have frequently worked with certain websites in the past to remove online defamation, they understand what that website’s specific removal process looks like and can simplify it.
Guaranteed content removals are typically offered for specific types of websites, such as gossip and shaming websites, cheater websites, and scam exposing websites. An unfortunate reality about these types of websites is that they usually rank highly in Google Search results, so it is imperative to remove defamatory posts, comments, and content from them as soon as possible.
Guaranteed removal costs can vary and are based on multiple factors, such as:
- The number of defamatory and negative posts on the website,
- The location of the posts,
- Whether a paralegal or attorney handles the matter, and
- Whether an identification of the anonymous poster is sought.
For example, the more web pages or pieces of content that you need taken down, the more it will cost. Oftentimes, defamatory content is published on anywhere from 1 to 15-plus websites and platforms, which will affect the total costs of your guaranteed removal.
Hourly Non-Litigation Service Costs
Hourly non-litigation services are used in situations where a client wants to remove content from the Internet and no litigation is involved or contemplated as part of the legal engagement. In the context of online content removal, non-litigation services handle content that is truthful and factual in nature and where litigation just is not in the cards. Common examples include:
- Consumer reviews,
- News articles and media,
- Blogs and discussion boards,
- Images, and
- Court pleadings.
However, this above list is not exhaustive and other non-litigation services can involve online harassment, sextortion, online extortion, pornography, defamation, criminal conduct, and other Internet privacy concerns.
The total costs of hourly non-litigation services depend on a myriad of factors, such as:
- The hourly rate of the attorney on your matter;
- How long it takes to complete your matter;
- The content you want removed;
- The number of websites the content is posted on;
- How difficult it is to remove the content;
- How many attorney-client meetings are required;
- The complexity of the issue and how long it will take to get up to speed on it; and
- The nature of the content and any sensitivities of the issues at play.
Hourly Litigation Services
Hourly litigation services are offered for cases involving defamation lawsuits. The most common types of lawsuits that defamation lawyers handle are:
- John Doe lawsuits to identify anonymous online defamers;
- Injunctions to stop defamation and other types of cyber harassment;
- Cases involving a court order to remove defamatory content from a website or Internet search engine;
- Traditional libel cases for monetary compensation; and
- Expert witness testimony and damage reports.
The key factors that influence an online defamation lawsuit’s total costs include:
The major factors that may impact the cost of an online defamation lawsuit are:
- Whether a plaintiff is seeking monetary relief;
- Whether a defendant’s identity is known or unknown;
- Whether a court order is needed to remove the defamatory content in question;
- The amount of defamatory content online;
- Whether time is of the essence or not;
- Fees for local counsel;
- Whether the case is contested by the defendant; and
- Type of attorney fee structure agreed upon.
There are also general litigation costs that affect all defamation cases, such as (attorney) customer service and communications, the length of time it takes to resolve a case, and discovery and evidence (such as court costs, court reports, filing fees, transcript fees, and travel expenses).
Experienced online defamation attorneys can help online defamation victims not only cut costs but find the most effective solutions to remove defamatory content and hold online defamers liable for their actions.
If You Need Help With Defamation
Whether it is fake Google reviews threatening the livelihood of your business, false allegations of infidelity posted to a cheater shaming website, or a false and damaging report about your business by a former employee, online defamation can have severe consequences on your life or your business’s future.
At Minc Law, we try to provide as much free information about online defamation as possible, so that you can arm yourself against defamatory and damaging online attacks and protect your online reputation. Everything you need to know about online defamation and other Internet attacks can be found in our Legal Resource Center and Blog.
And while there are steps you can take to protect yourself against online defamation, something as serious as online defamation should be handled by professionals.
At Minc Law, our practice is dedicated solely to Internet defamation. If you or your business are the target of online defamation, not only can we help you or your business swiftly remove online defamation, we can help you:
- File an online defamation lawsuit;
- Pursue and identify anonymous online defamers;
- Hold perpetrators accountable for their actions;
- Stop accompanying Internet attacks such as online extortion, sextortion, blackmail, cyberstalking, and harassment; and
- Obtain compensation for damages and emotional distress suffered by you or your business.
If you are ready to speak with an online defamation lawyer, you can reach out to the Minc Law team via Chat, email, or contact form. You can also call us at (216) 373-7706 to schedule your free, initial no-obligation defamation consultation.
State By State Defamation Guides
Each state has its own defamation definitions, laws, and lawsuit requirements that plaintiffs must adhere to when initiating a defamation action. However, there are several major laws, requirements, and considerations that all online defamation plaintiffs should familiarize themselves with before filing suit:
- Known vs. unknown defendants;
- Long-arm statutes;
- Statute of limitations;
- Single publication rule;
- Avoiding the Streisand Effect;
- Criminal defamation laws.