- ABA Groups
- Resources for Lawyers
- Career Center
- About Us
Defamation is defined as "communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person" by the Merriam-Webster's Dictionary of Law. Oral defamation is slander, while written defamation is "libel".
The typical elements needed to show Defamation of Character are:
In some jurisdictions, mental anguish would be sufficient damage to fulfill the fourth element of "harm". Defamation Per Se is recognized in most jurisdictions wherein it is not required for the plaintiff to show actual damages in order to make their case. This is what proves to be of particular importance with regard to online postings because it is an easier case to prove.
At common law, a statement falls under Defamation Per Se if the defamatory statement does one of the following:
These have been the demarcations of Defamation Per Se for many years, so the courts use some level of discretion in defining these elements. For example, accusing a woman in the current era of not being a virgin is hardly cause for a claim of Defamation Per Se because the social norms in most societies have changed. Therefore, consider the following two examples:
"You know, I heard that the bride is not a virgin!" In 2009, the response to such a claim would likely be "So?" because current social norms dictate that such a statement is not defamatory.
But consider the following:
"You know, I heard that Becky slept with every man in the wedding party including the priest!" This statement is twofold: it would be a defamatory statement as against Becky and the presiding priest because it would be a disparaging statement of the priest's professional reputation as a member of the clergy.
So what does this particularly have to do with the internet?
In a world where many of us have been known to have a web profile on a popular social networking site or two, and where most people feel the need to discuss different issues on the internet on bulletin boards and forums, virtually everyone is open to someone making public defamatory statements against them with the false understanding that they are free of repercussions due to anonymity. It is this so-called "anonymity" that makes people act bravely and carelessly in the false safety of the virtual world.
A former associate of mine was upset enough by my ending our business relationship of a non-legal nature that he decided to try to hit me where it hurt. He claimed to have twice notified professional organizations and called for my disbarment even though I was never his lawyer. This gentleman also has been known to do similar things to other members of an online bulletin board whenever they disagreed with him. He accused one such person of markedly criminal activity both on the forum and on an extremely popular social networking site, using the poster's picture as an identifier. He found the job searching profile of another person and edited his curriculum vitae to paint him in a disparaging light. He then was said to have forwarded this gentleman's fake resume to a plethora of potential employers all around the world in a particularly large mass-email.
It was this series of events that prompted me to write this article because many people do make defamatory statements online with the false security of online anonymity. Many also are savvy enough to use some sort of hiding service so that their actual identity cannot be tracked by common practices.
How do you determine the identity of a person who makes defamatory statements online?
"Have fun trying to prove it was me!" is the mantra of many such internet posters. Most are often banned from many a public forum, only to re-register repeatedly. Often times, each name has a different internet address. The most common way to find the maker of defamatory statements online is to find their internet protocol number or "IP address". Semi-savvy internet users have access to different software or hacks that hide their IP address, so even if one could subpoena the owner of the website or the internet service provider to reveal the user's IP address, one would likely never find them. However, the IP address is often times not discoverable in litigation. Even still, all is not lost.
Remember when I said I actually know this gentleman? I had known him for years. So had many other people on this site who have actually worked with him. Moreover, he has said a myriad of statements on each screen name that connects them all to him and to the defamatory actions he has committed. His biggest downfall is his compulsion to brag online about his exploits. Also, all of the screen names he has used are all similar to each other and are linked to one of his online businesses. It is therefore important to note that electronic tracking of an internet protocol address is not the only way to find someone's identity or to prove what they have said. This is especially true if there is specific knowledge of his identity by the plaintiff.
Whether it is a fractured business relation, employment termination, or the end of a dating situation, the principle is the same. So long as there are hurt feelings, the temptation may prove itself undeniable for someone to abuse another using the internet as a means of harassment or defamation. What is important to keep in mind for all parties concerned is that there are remedies both in civil and criminal law available for the plaintiff's protection in such matters. These remedies at law and the false sense of anonymity should be incentive not to act on the temptation to misbehave. Key points to remember are simple: one is rarely ever anonymous online. Furthermore, online harassment, defamation or bullying is still against the law.
So how does one stay protected?
Nothing is full proof when dealing with the internet; once you are online, you are networked to the world. This is both a gift of convenience and a curse of exposure. There are a few things you can do to protect yourself and leave you less vulnerable to such personal attacks.
What baffles me entirely is the rampant defamation and harassment that occurs online by actors of all ages across a myriad of demographics. The vast majority of people online appear seemingly unaware of the laws in place that prohibit such behavior and could equal serious financial or criminal penalties. It is the duty of the average internet citizen to avail themselves of such information before treading dangerously into online discussion forums. My experience as an attorney and as a long-time moderator of a very large bulletin board has convinced me that such behavior will prove epidemic in the near future.
Just recently, a law suit was filed against four teens, their parents and Facebook, Inc. due to the alleged defamatory comments of the aforementioned teens in a password protected discussion forum. Finkel v. Facebook, Inc., 102578-09 (N.Y. Supreme Ct. complaint filed Feb. 24, 2009). However, everyday on the web, defamatory statements are made in writing. Unlike a spontaneous lapse in judgment in speech or hard-copy, an act of defamation online creates a paper-trail that spans the worldwide web on bulletin boards and comment threads that are often exponentially larger than 4 subscribers.
Now, this is not a call for us to become overly-paranoid and cease using the web. However, just as in using an actual highway, there are some costs we will have to brave in order to enjoy the benefit of the infrastructure that the internet superhighway provides. Blogging, browsing, twittering and social networking can be very enjoyable, entertaining and even productive. However, we must use due care and good judgment as we act. We can no more do online what we are precluded from doing offline by way of law and society. For every virtual action, there is a very real consequence.
About the Author
Kashta Eneas is an Entertainment Attorney in Los Angeles, California.