Internet defamation defending your name.
Subject: Libel and slander (Laws, regulations and rules)
Internet fraud (Laws, regulations and rules)
Phishing (Laws, regulations and rules)
Freedom of speech (Laws, regulations and rules)
Author: Roberts, Josh K.
Pub Date: 12/22/2011
Publication: Name: The Forensic Examiner Publisher: American College of Forensic Examiners Audience: Professional Format: Magazine/Journal Subject: Health; Law; Science and technology Copyright: COPYRIGHT 2011 American College of Forensic Examiners ISSN: 1084-5569
Issue: Date: Winter, 2011 Source Volume: 20 Source Issue: 3
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Product: Product Code: 9101215 Free Speech & Assembly NAICS Code: 92219 Other Justice, Public Order, and Safety Activities
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Accession Number: 275636293
Full Text: Freedom of speech is one of the fundamental rights of an American citizen. That liberty is not unchecked, however, as there are numerous laws against unbridled free speech. The laws prohibiting defamation are one such example. Generally speaking, defamation is the issuance of a false statement about another that causes that person or entity to suffer harm. Slander involves the making of defamatory statements usually by an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as in a magazine or newspaper. Today, most courts treat both forms of defamation the same.

Typically, the elements of a cause of action for defamation include

1. A false and defamatory statement concerning another

2. The unprivileged publication of the statement to a third party (somebody other than the person defamed by the statement)

3. Damage to the plaintiff

Initially, a statement must be both false and defamatory. If "A" states that "B" has red hair, when in fact "B" has brown hair, the statement is false, but absent other facts, not defamatory. Likewise, if "A" states that "B" is a criminal, when in fact "B" did rob a bank, then the statement, while defamatory, is not false. Therefore, making the "truth" an absolute defense to any cause of action for defamation. Second, in the context of defamation law, a statement is "published" when it is made to a third party. That term does not mean that the statement has to be in print; therefore, if "A" says to "B" that "A" believes "B" stole from the collection plate at church, that statement does not give rise to a cause of action for defamation as it was never "published" to a third party.

Finally, the Plaintiff must have been damaged. Damages are typically to the reputation of the Plaintiff, but depending upon the laws of the jurisdiction, it may be enough to simply establish mental anguish. Most jurisdictions also recognize "per se" defamation, where certain allegations are automatically presumed to cause damage to the Plaintiff. Typically, the following may constitute defamation per se:

* Attacks on a person's professional character or standing

* Allegations that an unmarried person is unchaste

* Allegations that a person is infected with a sexually transmitted disease

* Allegations that the person has committed a crime of moral turpitude

Regardless of the nature of the communication, coming up with a numerical value to quantify the damage is difficult in every defamation case where actual monetary loss is negligible, speculative, or impossible to determine.

PUBLIC FIGURES

In 1964, the U.S. Supreme Court in New York Times v. Sullivan added additional requirements where a public figure attempts to bring an action for defamation. The public figure must also prove that the statement was made with "actual malice," meaning that the person making the statement knew the statement to be false or issued the statement with reckless disregard as to its truth. Many a celebrity has sued a media outlet over defamatory allegations of conduct, and often the story did include false statements, but unless the court finds that the speaker acted with "actual malice," it will not award damages.

The concept of a "public figure" is broader than just celebrities and politicians. A person can become an "involuntary public figure" as the result of publicity, even though that person did not want or invite the public attention. For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established, on the basis that the notoriety associated with the case and the accusations against them turned them into involuntary public figures. A person can also become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. For example, if a person makes a comment to a public media outlet regarding a specific issue, say a city's proposed tax increase, they may be determined to be a limited public figure relative to later comments made by others about said person on the same issue.

THE EVOLUTION OF DEFAMATION IN THE U.S.

While the law in America relating to defamatory statements has gradually evolved over the years, the mediums by which defamatory statements are disseminated has changed rapidly with the advent of the Internet. Decreasing are the days of defamation by print and television media where the defamatory comment is viewed only by the limited audience of that mediums circulation. These mediums have been replaced by communications via web pages that stay posted for virtually limitless periods of time to be viewed anew each day by any reader who happens to use any one of the free, yet remarkably sophisticated, internet search engines.

Further, with the advent of Internet social networking sites and smart phones, a defamatory statement can not only be sent instantaneously to the very people that you would least want reading it, but the audience does not have to even seek the information as it comes directly to them via their smartphone. The Internet has spawned a new brand of high-tech lynching via Internet defamation that the law has not only failed to keep up with, but has actually protected.

As opposed to print or television media, who often perform at least cursory fact-checking as they can be held liable for defamatory material they publish, Internet blog and service providers ("ISP") have been provided a statutory defense anointing them immune from damages for defamatory material that may be published via their Internet site.

Section 230 of the Communications Decency Act of 1996 is a landmark piece of Internet legislation in the United States. 47 U.S.C. [section] 230(c)(1) provides immunity from liability for providers of "interactive computer services" who publish information provided by others, stating: "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."

The justification for the legislation is that the amount of information communicated via interactive computer services is staggering. It would be impossible for service providers to screen each of the millions of postings for possible defamatory statements. If faced with potential liability for each message posted on their message boards, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the free speech implications and chose to immunize service providers to avoid any such restrictive effect. Thus, the legislation provides blanket immunity to ISPs for defamatory statements posted on their webpages by Internet authors. The problem with the law is that with the anonymity of the Internet, in practice, it extends this immunity to the makers of the defamatory statement as well.

To post on an Internet message board, it usually takes little more than an e-mail account. Thus, an Internet writer can post comments without directly identifying themselves or can falsely identify themselves via any number of free email account services. Further, while a more sophisticated investigation can reveal the identity of the computer from which the statement was posted (its IP address), there are programs that can be purchased that mask or conceal a computer's IP address.

To counter this blanket of immunity thrown upon Internet bloggers, some states have proposed legislation that would ban the possession, sale, or use of technologies that "conceal from a communication service provider ... the existence or place of origin or destination of any communication." Such legislation is needed so that the subject of such defamatory statements can at least determine the source of the offensive posting. While this legislation is helpful, even if you can identify a specific computer's IP address, it may very well be a public terminal or computer accessed by numerous individuals making identifying the individual culprit even more difficult.

INTERNET DEFAMATION PRACTICE

There are several websites available that offer negative Internet presence remediation services; however, most focus on increasing one's positive internet presence by adding more flattering material or dealing with the process of improving the visibility of a positive website or a web page in search engines via the natural or algorithmic search result perimeters of the engine. The problem with these services is that they do little to actually deal with the negative content that is easily unearthed with the right search terms. These companies generally do not seek to pursue the negative content as they have no enforcement mechanism for its removal.

Our law firm has handled numerous defamation cases over the years; however, in the last ten years, almost all of the cases have involved Internet defamation. Cleaning up defamatory statements on the Internet is a difficult task. Most attorneys who do not regularly practice in the area of Internet defamation do a poor job of representing their clients; either the lawyer has a poor understanding of how the Internet works, does not have the understanding of how to identify the owner or ISP of a particular website, or does not know how to identify the individual poster that made the comment.

A client so defamed needs an attorney that understands how to deal with both the Internet side of the issue as well as the legal side. Services provided by my office includes the discovery of the most prominent defamatory comments, discovery of the ISP providers, discovery of the posting author if possible, and then action will be taken to cause the offensive material to be removed from the intent.

Despite the apparent blanket protection provided by Section 230, my office has been very successful in convincing even the largest ISPs associated with national television networks, computer companies, and social networking sites to remove offensive material. After all, most ISP's would rather simply delete the offensive material than spend tens of thousands of dollars defending their right to publish the defamatory posting.

Ultimately, no one should have to suffer the embarrassment of being defamed on the Internet; however, the nature of the Internet as well as laws protecting ISP's makes it all too easy for perpetrators to get away with these acts. Fortunately, there are skilled lawyers who can fight for the rights of those so defamed, negotiate the removal of such statements, and seek legal action to require the same when needed.

Defenses to DEFAMATION

While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which provide defenses to defamation actions. Depending upon the circumstance, they may change the elements of the cause of action, limit when an action may be filed, or create affirmative defenses to an action for defamation.

As previously recited, the most popular defense to an action for defamation is that the statement was the "truth", which is an absolute defense to any action for defamation.

Another defense to a defamation action is "privilege" Free expression in certain forums is considered so important that almost any statement is privileged from prosecution. For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the congress, or by judges in the courtroom, are ordinarily privileged and cannot support a cause of action for defamation no matter how false or outrageous.

Another defense recognized in most jurisdictions is that the statement was merely an "opinion" If a person makes a statement of opinion, as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion depends upon the context and whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. This "fact" versus "opinion" determination is a fundamental issue in most defamation litigation. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.

Finally, a defense similar to opinion is "fair comment on a matter of public interest." If "A" expresses an opinion that the mayor of a town is involved in a corruption scandal, even if false, it is not likely to support a cause of action for defamation as it involves a matter of great public importance.

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JOSHUA K. ROBERTS has been a partner with the law firm of Hazelrigg, Roberts & Easley, RC. since 1998. The firm is headquartered in Springfield, Missouri with a satellite office in Ozark, Missouri. His principle practice areas include civil litigation and criminal defense. Josh is a member of the Missouri, Springfield Metropolitan and Christian County Bar Associations and a featured speaker on LawTalk, KWTO 560 AM. His largest verdict or judgment in the last year was $1.9 million in the case of Warner v. Greenleaf.

Away from law, Josh is an Elder and Deacon in his church, enjoys teaching Sunday School and playing bass guitar in the praise band. In his spare time he enjoys spending time with his family and coaching his son's football and basketball teams.
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