A Legal Primer for Bloggers, Part 3 – Defamation

This post continues a series dealing specifically with the legal issues that bloggers should be thinking about.  Part 3, Defamation, will explore your options when somebody has posted something false and damaging about you, including some common defenses.

Consider the following scenarios: You’re out surfing the internet one day and come across a false and damaging statement that someone has written about you on their blog or website.  Maybe you’re the one writing a scathing review about a new hit movie, including unsavory stories about its lead actress.   Or maybe you wrote a glowing review but someone else leaves a libelous comment to your post.  In all of these situations, you’ll want to be aware of your rights and obligations under defamation law.  Don’t think so? Check out this recent case where a blogger was sued for defamation by a Chinese game developer for his critical review of their product.

What is defamation?

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves spoken defamatory statements. Libel involves the making of defamatory statements in a printed or fixed medium, such as a newspaper, book or blog.

Defamation laws vary from state to state.  Indiana has the following laws:

IC 34-15-1-1
Allegation; burden of proof
Sec. 1. In an action for libel or slander, it is sufficient to state generally that the defamatory matter published or spoken was about the plaintiff. If the defendant denies the allegation, the plaintiff must prove at trial the facts showing that the defamatory matter was published or spoken about the plaintiff.

IC 34-15-1-2
Truth; mitigating circumstances; evidence
Sec. 2. In an action for libel or slander, the defendant may allege:
(1) the truth of the matter charged as defamatory; and
(2) mitigating circumstances to reduce the damages;
and give either or both in evidence.

Indiana does have a retraction statute that provides protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement according to prescribed guidelines. The retraction must be published within three days and in as conspicuous a place and type as the original item was transmitted. It’s important to note that retraction affects the calculation of damages, not liability.  Few courts have addressed retraction statutes with regard to online publications like blogs, but a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board.

IC 34-15-4-3
Retraction mitigates damages
Sec. 3. The plaintiff … may recover only actual damages if:
(1) it appears at the trial of the action that:
(A) the article was published or transmitted in good faith; and
(B) the falsity of the article was due to mistake or misapprehension of the facts;
(2) a full and fair retraction of a factual statement alleged to be false and defamatory was … transmitted to its members or subscribers by the news service.

What about defamatory statements that someone else makes in my comments?

The ability to comment on a blog is one of the key features of the blogosphere. Usually it promotes interactivity and civil discourse.  Of course, sometimes a comment will include defamatory statements.  Generally, anyone who repeats someone else’s statements is just as responsible for the defamatory content as the original speaker if they knew, or had reason to know, of the defamation.  That seemingly would put a very large burden on bloggers to carefully monitor and censor comments.  Fortunately, the Communications Decency Act, Section 230 provides a strong protection against liability for Internet “intermediaries” who provide or republish speech by others.

Section 230

(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
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.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

Are there any defenses to defamation?

Truth

Truth is an absolute defense to a defamation claim.  Defamation law does not prevent someone from publishing true information about you, no matter how damaging (although you might have a different cause of action).

Opinion

Opinions are not considered defamatory.  But make sure you’re actually stating an opinion and not asserting a statement of fact.  To determine whether a statement is an opinion, courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are more likely to be opinions or hyperbole.  For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.

Public vs. Private

A private figure claiming defamation – your neighbor, your mom, the cute girl who works at the bar down the street – only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement.  On the other hand, a public figure must show “actual malice” – that you published with either knowledge of falsity or in reckless disregard for the truth.  This is a much more difficult standard for a plaintiff to meet. A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter.  So a statement that is defamatory when made about your neighbor might not be defamatory if made about the lead actress in a new box office hit.

Practical Tip

Once you’ve concluded that someone has made a defamatory statement about you, what next?  Consider consulting an attorney to discuss your options.  But know that there are some very good reasons why actions for defamation may not be a good idea.  First, a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.  The media may cover the initial filing of a lawsuit and all the gory, illicity details of the complaint, but not follow through to the case’s ultimate resolution.  The net effect could be that large numbers of people hear the false allegations but never learn how the litigation was resolved.

Second, damage awards in defamation lawsuits tend to be small.  The fees expended in litigating even a successful defamation action can exceed the total recovery.  There’s often a substantial price to pay to clear your name in the court of law.

If you’re interested in learning more about this topic, check the Electronic Frontier Foundation’s FAQ on Online Defamation Law.

Next up in the series will be A Legal Primer for Bloggers – Anonymity.  It will discuss what you should know about blogging anonymously and keeping your identity secret, including the duty of your internet service provider to protect your identifying information.

A Legal Primer for Bloggers

Part 1: Introduction

Part 2: Intellectual Property

Part 3: DEFAMATION

Part 4: Anonymity

Part 5: Privacy