US Internet Law/Defamation

Defamation is the making of a false statement about another which damages their reputation. The rules that apply in general to written publications and letters people have written would apply to material published on the Internet.

Note: For the purposes of this article, "John Johnson" is a fictional person used for the example here, and does not refer to anyone with the same name. (This is so that I don't get sued for libeling someone who just happens to have that name!)

Defamation can either be a statement which is spoken, in which case, it is slander. If the defamatory statement is in writing, it is libel. It has been held in one case that a spoken statement read from a writing also constituted libel.

Since almost all material on the Internet is written, most defamation claims regarding the Internet would constitute libel. A sound recording such as material in a podcast would probably constitute slander.

In order for an allegedly defamatory statement to be actionable at law, certain conditions must apply.

  • The statement must be untrue. Under U.S. law, a truthful statement is an absolute defense to a charge of defamation. In the U.K., it is possible for certain truthful statements to still constitute libel.
  • The statement must not be privileged. If one repeats material from a police report, a court proceeding, or other public document, the statement, even if untrue, is priveleged and is not actionable. Also, repeating a statement made by the subject of the statement is also priveleged, e.g. if John says in a flippant comment that he is a child molester ("I'm a child molester, yeah, right."), someone repeating that statement cannot be sued by John for saying it, since John himself is the source of the statement. Also, certain laws specifically exclude liability for third-party comments posted on the Internet.
  • The statement must be in the nature of a fact, and not an opinion. If you say that someone is "the worst writer in the world" or is "a worthless human being," these are subjective statements of opinion and are not actionable. Publically calling someone a child molester, a homosexual, a bastard, or any other statement which can be proven, if the statement is false, is actionable as defamation.
  • The statement must be published. This means that someone other than the subject has to see the statement (and other than by the subject showing it to others.) If you send a private e-mail to someone saying that they have AIDS, that is not actionable because it was not published. If you send the e-mail to a mailing list or post it to a USENET news group, it is actionable if it is false.
  • The statement must in some way damage their reputation. A statement about someone that would tend to make people not want to associate with them ("Did you hear that John Johnson is a child molester") , accuses them of a crime ("I heard that John Johnson robbed a bank and killed a cop."), or accuses them of having a "loathsome disease" ("Did you know John Johnson has AIDS?") are examples of defamatory statements. Calling someone a visitor from Mars or a space alien would not be defamatory since it does not in some way damage their reputation.
  • The person must be a private individual, or if a "public figure," the statement must either be made where the party who made it knew or should have known it was false ("Reckless disregard for the truth"), or was made with malice. Calling your next-door neighbor a crook is probably actionable; calling a politician who suddenly has a lot of money after being elected a crook is probably not.
  • The statement must be capable of being believed. For example, there was a famous case in which a magazine ran a clearly indicated parody advertisement, that claimed a well-known minister had sex with his mother in an outhouse. While the statement was false and would normally be defamatory, because it was admitted that no one could seriously believe the statement was true, it did not constitute libel.

Internet Law:
Table of Contents · Preface · Introduction · Defamation · Defamation - General · Section 230 · Copyright · Copyright - General · Secondary Liability · Fair Use · DMCA · DMCA Safe Harbor · DMCA Anti-Circumvention · Trademark · Domain Names · Content Regulation · Online Anonymity · Communications Decency Act · Online Contracts · The Hold Harmless Clause in User Agreements · Clickwrap Agreements · UCITA · Privacy · ECPA · SCA ·