Welcome to Defamation Law Radio. My name is Enrico Schaefer, and today we’re going to discuss online defamation, internet libel and host of other issues related to defamation, libel and slander.
We have recently discussed at length the issue of “should I sue for defamation of character?” but there’s an even more threshold issue that you need to consider. And that is, can I sue for internet defamation of character? Before you step into court, you need to assess your matter in detail. These are always fact-specific issues, and the last thing you want to do is spend attorney’s fees pursuing a case that was never a case. Before you take a litigation case to trial, whether it’s defamation or otherwise, you need to start with a strategy document.
In order to prove defamation, there are certain elements that the attorney is going to instruct to you that you have to meet. The first is that the person who is making the statement has to be making a false statement of fact about a person or a business or a company or a brand. That is very important, a false statement of fact. A fact is something that is provable as true or false. An opinion is everything else.
So, what is a fact? If I say that John Doe engaged in child pornography, and it is not true, it is not provable as true, and it is provable as either false or true, then I may have a defamation claim. So, let’s break that down. If it turns out that I’ve made a statement that John Doe engaged in child pornography, and John Doe can prove that he never did, it’s provable as false and therefore, qualifies as a fact. If I say that I think that John Doe is the scum of the earth, then most courts, if you should happen to get to a piece of defamation or libel litigation, are going to say that’s a statement of opinion and therefore, not actionable. So, the first thing you have to ask is, is it false and is it a fact?
The next element of defamation, slander and libel is that it has to be published. In the internet space, that means that someone puts it online, publishes it on a blog or website, posts a review of your business, posts a comment, etc. Nevertheless, it gets published onto the internet. In the internet space, that’s typically what happens. And there are many ways to publish content online. It could actually go onto YouTube, which also qualifies as publishing, or in a podcast or radio show, that would also constitute publishing. Keep in mind, that libel -internet libel – is written. Internet slander is spoken, so, spoken is going to be audio or video, typically, in the web space.
The third thing that has to be proven is that the false statement, which is published, has to have, at least, been negligently made without a good reason to believe that, in fact, the statement was true. So, at least, negligent, meaning that if someone reads something on another website and republishes it. Well, then the question is going to become, were they negligent in thinking that other publication’s statement was false? If someone is the originator of the idea or the statement, then they have to say why is it that they believed that this statement (a fact that they’ve made) was, in fact, true? And if they were negligent, then, perhaps, you can meet that element. If there is a matter of public concern or there is a privilege is involved, then you actually have to prove malice, ill-will towards the person. And if someone publishes a false statement of fact and does it recklessly, that is to say, they had no reason to know whether it was true or false, that might also qualify as malice. So, that’s the third element in order to establish internet defamation, online defamation, web libel and slander.
The forth thing is you have to be able to show either damages or mental anguish. Damages might mean that you’ve lost business, that customers decided not to hire you, these types of things. In some states, you just need to be able to show some level of mental anguish. Sometimes, that will have to be physically manifested, sleeplessness, anxiety, these types of things. Now, there is an exception to the requirement that you’re able to show some damages. And that is if it’s defamation per se, meaning that it is considered by presumption to have caused you damage. And per se defamation is a statement of a sexual disease, a statement suggesting that you engage in criminal activity, impugning your business reputation, these types of things. So, before you get to the questions of should you sue for defamation? Should you file a lawsuit claiming defamation? Your attorney, your lawyer, needs to take a hard look at whether or not you can meet these elements and ask themselves the question: Can you sue for defamation? And after those questions are resolved, then you can get to the "should you sue" because there are a whole number of reasons why maybe you can sue, but it doesn’t make sense to do so.
Contact an internet law attorney and they can help you analyze your matter and make some intelligent decisions concerning your case. Whether you actually want to file a lawsuit for defamation, or you have to defend yourself against allegations or a lawsuit claiming defamation. My name is Enrico Schaefer. That’s all for Defamation Law Radio for Today. We’ll see you next time.