Loose Keystrokes Bring Lawsuits --
On-Line Defamation
By Eric S. Freibrun, Esq.
Psychiatrists and psychologists can no
doubt venture an explanation as to why people say things in e-mail messages and on-line
bulletin board postings they wouldn’t dream of saying out loud, stating in a printed
memo, or writing in a Letter to the Editor. Perhaps words shot into cyberspace are viewed
as more ephemeral than those typed on a printed page. After all, they’re only bits,
bytes and electrons, so they can’t come back to bite the writer, or can they?
While general principles of defamation
law are well-settled, their application in the on-line world is just now being tested. In
the past couple of years, there have been a small but increasing number of defamation
lawsuits brought by on-line users alleging their reputations have been damaged by the
false statements of others posted or "published" on-line. This article describes
a few of those cases and highlights the principles of defamation law.
One of the more recent notable examples
is William Slater v. Paolini, filed in November, 1994, and pending in the Court of Common
Pleas, Cuyahoga County, Ohio. In this case, the plaintiff and defendant were participants
in a forum on CompuServe relating to technical aspects of Borland’s Paradox software
product. The filed Complaint alleges that the defendant published a forum message
accessible by innumerable other subscribers accusing the plaintiff of having had child
molestation charges pending against him. The plaintiff vehemently denies in the Complaint
that there have ever been any such charges filed or pending against him and claims that
his personal and business reputation has been irrefutably damaged by the defendant’s
statements. The plaintiff currently participates in discussions on CompuServe’s Legal
Forum relating to on-line defamation, candidly discussing his case and the reputational
damage that has been done by what he describes as the defendant’s entirely false and
mean-spirited allegations.
Another case filed in the Court of Common
Pleas, Cuyahoga County, Ohio, is Suarez Corp. Industries v. Brock N. Meeks, 267513. In
this case, the plaintiff had alleged defamation against the author of an on-line
newsletter who had criticized the plaintiff’s marketing methods in an article posted
on the Internet. This case has been settled out of court by sealed agreement.
In what is remarkably the only published
court opinion in an on-line defamation case, the plaintiff in Cubby v. CompuServe, 776
F.Supp. 135 (SDNY 1991), had attempted to hold CompuServe liable for disseminating or
republishing the defamatory statements of a subscriber. The plaintiff believed he had been
defamed by a periodical publication that the subscriber had uploaded onto
CompuServe’s system. The material was widely accessible by other subscribers and
CompuServe had no opportunity to review it prior to its dissemination. The court held that
CompuServe was not liable for republishing the defamatory material because its role was
analogous to a bookseller with no editorial control over the periodical’s content,
and it did not know or have any reason to know that the material was defamatory. This case
is significant in that it appears to establish a clear rule for determining service
provider liability for republishing defamatory statements, holding further that once a
service provider becomes aware, or has reason to be aware, of illegal activity being
conducted on its system, it must take steps to stop it.
Defamation is a matter of tort law, which
deals with injuries to persons or property and varies from state to state. Defamatory
statements can be written (libel) or oral (slander) and may be treated differently
depending on state law. In all states, however, both individuals and business entities can
be defamed and sue for monetary damages. Generally, a statement is defamatory, and thus
actionable (i.e., someone can be sued for it), if it is (i) false; (ii) made or
"published" to a third party; and (ii) tends to injure the reputation of the
person about whom it is made by lowering the respect, esteem or goodwill in which they are
regarded in their community, exciting adverse or derogatory feelings against them, or by
dissuading others from dealing or associating with them. A defamatory statement need not
be direct. Defamation can result from the overall context in which a statement was made or
from inference, insinuation or innuendo. Even a joke can be defamatory if it is not
obviously meant or understood as such.
Determining whether a statement is
defamatory requires analysis of all the surrounding circumstances by a judge or jury. For
example, a statement that is merely unflattering, annoying or embarrassing is generally
not considered defamatory. Additionally, a statement of opinion which is incapable of
being proven true of false, such as one containing hyperbole, will not generally give rise
to an action for defamation. The issue of whether an allegedly defamatory statement is one
of opinion or fact is one of the more difficult and common questions in a defamation suit.
Courts have held that merely prefacing an otherwise defamatory statement with the words
"I believe..." is not enough to eliminate the implication that the statement was
intended to communicate facts.
Some states’ laws consider certain
types of statements to be defamatory per se, i.e., so presumptively damaging that the
plaintiff need not prove that he or she was actually injured by them. Examples include
accusing someone of having committed a crime, being unfit or incompetent in their
profession, having a communicable disease, or being unchaste or having committed sexual
misconduct. Truth, however, is generally a complete defense in a defamation action. In
fact, it is the plaintiff’s burden to prove the falsity of the defendant’s
statement.
A plaintiff in a defamation action may
need to prove the "fault" of the person publishing the defamatory statement. The
level of fault which must be proved varies depending on whether the plaintiff is a
"private person" or a "public figure." Generally, a private person
plaintiff need not prove any fault on the defendant’s part if the defamatory
statement concerns a private matter. If the defamatory statement against a private person
concerns a matter of public concern, the plaintiff must usually prove that the
defendant’s statement were made at least negligently.
Plaintiffs who are public figures or
officials have a much higher burden of proof in establishing defamation. They must show
that the defendant’s statements were not only false, but were made with knowledge of
their falsity or with reckless disregard for whether they were true or false. The
rationale for the higher standards required to prove fault in defamation actions involving
matters of public concern or statements against public figures is two-fold: first, the
public has a First Amendment interest in receiving information about public issues; and
second, public figures such as celebrities, government officials and other high-profile
personalities have usually thrust themselves into the limelight and are thus deemed to
have assumed a greater risk of adverse comment or publicity than private individuals.
While the law of on-line defamation
continues to evolve, it is clear is that the same degree of caution must be exercised with
respect to statements about others published or disseminated on-line as in any other
context. Authors and other individuals should consult an attorney knowledgeable in this
area if there are any doubts as to whether their on-line communications could result in
liability.
Attorney Eric Freibrun specializes in
Computer law and Intellectual Property protection, providing legal services to information
technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrun.com.
Copyright © Eric S. Freibrun, Esq., Law Offices of Eric S. Freibrun, Ltd. All rights
reserved.
