Online defamation is a false and unprivileged statement of fact that harms someone’s reputation. It is a false statement of fact which is published with malice or negligence, reckless disregard of the truth. An experienced internet defamation attorney, Enrico Schaefer discusses what online defamation is, and what to do if it is happening to you.
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Attorney Enrico Schaefer: We get the question all the time. What is online defamation? Online defamation is a false and unprivileged statement of fact that harms someone’s reputation. It is a false statement of fact which is published with malice or negligence, reckless disregard of the truth. State laws define defamation in specific ways, and although the law is consistent among many states, each state has its own particular defamation law. Libel is written defamation. So when we say online defamation, typically we mean online libel. Slander is spoken defamation. It’s what someone would say orally in a radio program or on the street.
I want to talk a little bit about a false statement of fact and what that means. A fact is something that is provable as true or false. What is and is not a false statement is not a hard to define concept under law. If I said that Joe was wearing a red shirt on Tuesday, I can prove that statement as true or false. Joe was either wearing a red shirt or he was not on Tuesday. So, it’s easy for someone to see that when I say that Joe was wearing a red shirt on Tuesday that is a statement of fact which was either true or false. Now that statement of fact isn’t defamatory in most circumstances. The fact that he is wearing a red as opposed to white shirt is meaningless , but if I say that Joe was convicted of grand theft auto on Tuesday, again, that’s a statement of fact which is provable as true or false. If, in fact, Joe was not arrested for that felony on any day in the last several weeks, then that is potentially a defamatory statement as to Joe. I want to talk a little bit about truth. We always get asked is truth a defense to defamation claims. Yes, generally, truth is a defense to a defamation, claim but keep in mind truth – like a false statement of fact – can sometimes be a nebulous concept.
Now on the other side of the fence from fact is opinion. Opinions are typically not defamatory, but simply labeling something as your opinion doesn’t necessarily make it so. Courts looks at circumstance and whether or not a reasonable listener or reader would understand the statement as asserting a fact or an opinion.
Let’s talk a little bit about retraction. The first thing that happens when a lawyer gets involved is they typically send a demand that the allegedly false statement of fact that’s a defamatory be retracted. Many jurisdictions, many states, have retraction statutes that essentially provide protection from a lawsuit if the publisher retracts the defamatory statement in some form. Whether or not a publisher actually retracts and how they retract may affect what damages are available if the matter should proceed to court. In part, because of the consequence of republication liability, Congress, our United States Congress, passed Section 230 of the Communications Decency Act, which provides some pretty darn good protection against liability for internet intermediaries who republish speech by others. In order to determine whether or not you may have immunity for defamation claims under Section 230, please see the following link. The statute of limitations on a defamation claim varies. Most defamation statutes in most states run very quickly. So, if you’ve been defamed online, if you’ve been the subject of a defamatory statement online, you need to contact a qualified defamation attorney as quickly as you can. In many instances, the statute of limitations will run from the time that the statement was first published. So you need to be very careful about protecting your rights and asserting your claims within the appropriate statute of limitation period, after determining which state law will apply.
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