Online Defamation: Bulletin Boards and Internet Protocol - ABA YLD 101 Practice Series

By Kashta K. Eneas

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:

  1. that a false and defaming statement of public concern
  2. with regards to another person
  3. that is published to a third party or parties
  4. causing some form of harm to the subject of the aforementioned statement.

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:

  1. Accuses someone of a deplorable disease
  2. Accuses the unchaste nature of a married woman
  3. Attacks the character of one's profession or standing thereupon, and/or
  4. Accuses the plaintiff of the commission of a particularly immoral crime.

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.

  1. Make sure you do not use a common password. If it is your first or last name, that is too easy. Make it a series of letters and or numbers that only make sense to you. Do not use any part of your social security number or driver's license number or anything as easily determinable. Using a program to generate a password that is extremely difficult to hack may be your best option.
  2. Never use your real name online. For example, my web profile url is not www.myspace.com/kashtaeneas. The rationale for this is twofold. First, you do not want people to be able to find your profile and personal information about you. Second, you also may not want people who you do befriend online to know your real name. In this same vein, do not chat using your real name or a common unique nickname. Another key is to not upload pictures on popular photo hosting sites if your photo is named after you (for example, KashtaChristmas93.jpg) because the url for the picture will include the name, leaving you exposed.
  3. Try not to upset people online. People often decide to be vindictive against others online as a result of an argument or the posting of an opinion with regard to a sensitive issue. A good rule of thumb is this: "If you cannot talk about it at work, it may behoove you to avoid it online". That includes discussions of race, religion or politics. Those topics quite often tend to result in arguments, so try to avoid them in order to refrain from becoming a target of the unscrupulous web surfer.
  4. Never ever chat or blog from work. Most companies monitor their employees' online use on their network. If you absolutely must do something online unrelated to work, get a smart phone and turn off the WiFi connectivity. Even then keep the web chatter to a minimum. Your computer at work - not to mention your time - does not belong to you; it belongs to your employer. All that you do on the network at the office (which includes your blackberry, even when not at work) is stored on a hard drive on the company's server. Also, the IP address that is being broadcast every time you do anything or say anything online will link people to information about where you work. This is never a good idea when dealing with people online you do not know and trust.
  5. Make sure your software is up to date. Do not let your subscription to a trusted virus scanner lapse, and avoid anything online that appears too good to be true. Trojan horses, worms and viruses are a means for people to invade your privacy and hack your computer. These are often encoded in a malicious email or website disguised as an attractive nuisance. Do not take the bait. Ensuring that your operating system and virus scanner (and if need be: firewall) are all functioning properly is the best way you can keep safe from online attacks on your system.

Conclusion
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.

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About the Author

Kashta Eneas is an Entertainment Attorney in Los Angeles, California.

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