Blogger's Guide to Online Defamation
The internet can be a cruel place. For instance, maybe one day you're minding your own business, doing your job and you realize someone has written a completely made up story about you that damages your reputation.
Or, maybe the roles are reversed and you write an article online but get accused of defaming another person in it, resulting in a potential lawsuit. Basically, not good all around.
Since the internet provides an extraordinary amount of access to an audience, defamation cases have become a bit scarier. Think about it. Even if you're a completely innocent victim, people often make up their minds based on the first story they read.
That's why knowing what to do as a victim or accuser is imperative to righting the wrong.
Defamation, slander, and libel are often confused. While they all reside in the same category within the law, it's essential to understand the differences between the three:
Defamation: this is the overarching term used when talking about both slander and libel. It covers instances where a false statement online leads to problems for an individual or company.
Slander: this is a type of defamation that is committed through the spoken word. For example, if you make a false claim through a podcast, audiobook or video, it could be considered slander.
Libel: whether through an online review, blog post, editorial, comment, or forum post, libel is a type of defamation that occurs when a false statement is written.
Considering written content is all over the Internet, it's worthwhile to understand the ins and outs of both slander and libel.
What Exactly Is Defamation?
Defamation law varies depending on the country you live in, but we're going to focus mainly on defamation in the US.
Strictly speaking, defamation is more than just making a false statement. Defamation arises when the statement is both false, unprivileged, and made to seem like it's fact.
Furthermore, the publisher must show some sort of "fault," also known as malice or negligence. (Note that in some countries like the UK, the standard is far looser, so you need to understand the local law.)
Since we now know what defamation means, we can now put together what elements make a viable defamation claim.
This is what must be proven:
- The plaintiff must go about proving that the defendant made some sort of defamatory statement about the plaintiff.
- The defamatory statement is seen as:
- A statement that pertains to the plaintiff.
- A statement that harms the reputation of that plaintiff.
- A statement that pertains to the plaintiff.
- The defamatory statement is seen as:
- The plaintiff then needs to show that the defendant made an unprivileged publication.
- The plaintiff must prove that the defendant acted negligently or with malice.
Lawmakers have established that you can't sue for defamation if the statement in question is considered privileged.
Although this definition depends entirely on the judge or mediator, the best example is someone testifying on the witness stand for a trial.
Anything you say on the stand is considered privileged (so you can't sue someone for lying on the stand) because we don't want witnesses holding back information for fear they'll get sued.
Opinion vs Fact
Is it defamation if you state your opinion online? Not at all. That's the main reason there's an actual Opinion section in newspapers.
However, claiming that what you said is your opinion and it actually being portrayed as an opinion is a completely different story. In short, you can't just label a statement as opinion after you've been sued for defamation.
For example, if you were to say "I think you're a liar," the courts would most likely see this as a statement of opinion. On the other hand, saying "You are a liar," would make it sound like you're trying to pass it off as fact, therefore making it defamation worthy.
One of the best defenses to a defamation claim is truth. This means that if you absolutely believe that the statement you made is true, it can get you out of trouble.
However, proving that you're telling the truth can end up costing you lots of money and time in court. It all depends on who's making the claim that you defamed them.
How Do the Courts Determine Fact from Opinion?
The courts take the statement and try to figure out whether or not a reasonable reader or listener could view that statement and understand that it's a statement of verifiable fact.
A verifiable fact is one that can be proven true or false. So some vague statements may not be verifiable. Such as "He was driving too fast," may be considered unverifiable, since it depends on the purpose in which the person was driving the car.
For example, driving over 100 mph on a highway is far too fast, but cruising around a NASCAR track at that speed is completely normal.
As you may have assumed by the NASCAR example, it often depends on the context of the statement. You would assume that the writer or speaker would continue talking about where the person was driving, making the fact verifiable.
Public vs Private Figures
This is where it gets a little tricky, because public figures get talked about all the time. And one might argue that a significant portion of the blog posts and other publications printed about them are, in fact, untruthful.
However, the idea that any press is good press actually holds some weight in terms of the law.
Why? Because a complete lie about a celebrity or politician could boost their popularity. Also, an article or podcast making false accusations about a public figure might not do any harm to that person at all.
Overall, a public figure could most likely go online and find thousands of potential defamation cases. So, in order to protect the legal system from all of these cases, the public figure must prove actual malice.
As we discussed a little earlier, a private person needs to only prove negligence. Since negligence occurs when the publisher fails to complete a reasonable amount of care, it's actually not as hard to prove as malice.
Malice, on the other hand, is when the defendant had some sort of knowledge that the information being published was indeed false, or that the defendant recklessly disregarded whether or not the statement was false or not.
This basically means that regular (non-public) figures can prove malice or negligence, where negligence could almost be considered a mistake by the publisher.
However, a public figure needs to show that the defendant had hard knowledge that the information was false, or they thought it might be false and decided to publish anyway.
Difficulty for Public Figures
It's worth noting that public figures have it tough. The whole point of the "actual malice" clause is to make it more difficult for public figures to make defamation claims, who are most definitely talked about all the time in the media.
It does happen on occasion, however. A good example of how a public figure proved actual malice was when Hulk Hogan successfully sued Gawker.
Blogging vs Journalism
Some people think that blogging isn't exactly the same as journalism. Although some may see blogging as less reputable, the courts don't see it that way.
In fact, the US Supreme Court says that the rights of the institutional media are no more or less than that of regular individuals or small organizations blogging online. Therefore, bloggers have just as many rights as the Wall Street Journal; but they can also be sued for the same reasons.
One area to consider is message board discussions. Courts generally take posts on message boards — and often social media as well — as opinions. However, if they feel like the context is enough to make everyone else think the statement is true, you could get in trouble for a post.
Once again, this becomes increasingly difficult for a public figure to monitor, and the average person is most likely never going to know about a post about them deep in a message board or forum. It's all just very hard to keep track of.
Is it Possible to Get Insured Against Defamation?
Many insurance companies now offer packages to protect media companies that might be at risk of defaming an individual or organization. Most of the insurance plans only cover libel, and they can get rather pricey.
As an example, an annual premium minimum can come out to around $2,500. This includes a minimum deductible of around $5,000 and a premium limit of $1 million.
In addition, you receive reviews and guidance on what measures to take to minimize your risk, along with steps to take if a defamation case is taken up against you.
A common practice in the blogging world is to repeat what someone has said online or to republish an excerpt or entire article.
But what happens if that republished statement was defaming another person or organization?
You are just as responsible for those statements because you decided to publish them on your own blog or website. In fact, if you get sued, there's a chance that both you and the original writer or speaker is getting sued as well.
That said, it all depends on whether or not the republisher knew the content they shared was false or defamatory.
Seeing as how we're talking about the Internet, it becomes increasingly difficult to find all of the intermediaries (publishers) that might have republished a defamatory statement.
In addition, some courts have argued that the intermediaries should not be liable for what the original person said. Overall, it's still pretty much up to the court that's handling each case.
Because it's so difficult to hunt down intermediaries online, Congress put together Section 230 of the Communications Decency Act, which gives some strong protection to all intermediaries. Since Section 230 is a federal law, it can technically overrule any state laws that say something to the contrary.
In terms of running your own blog and publishing content, it all depends on the type of content being distributed.
When it comes to comments, guest posts, emails sent in, and anything that has been created and published by a third party, the courts have pretty much shown that you are not the creator of this content, so you're not liable.
On the other hand, no court has made a ruling on cases where a blogger actively goes out and searches for such content to share.
For example, if you located a defamatory statement yourself, knew it to be such, then published it, there is no guarantee that you have any protection with Section 230.
Resources About Online Defamation
Guide to Libel Insurance: learn about the full coverage, along with what types of defamation are covered with most insurance.
Hustler v Falwell: this is the case where actual malice was defined.
Legal Elements of Libel and Slander Cases: these are the basic elements you need to open your own defamation case.
Vogel v Felice: here's a case that was paramount in determining what a verifiable fact was.
Section 230: all the information you need to know about Section 230 of the Communications Decency Act.
Privileges and Defenses in Defamation Cases: a solid look into the possible defamation case defenses.
The Cost of Internet Defamation: interested in seeing how expensive a defamation case can get? This is the article to read.
International Standards: this is a great resource for defamation in countries outside the US.
Now You Can Better Protect Yourself
The world of defamation is a complex one, and it has become far more complicated with the Internet.
However, having the knowledge and resources to prepare for defamation (whether you're accused of it or a victim of it) is essential for your survival as an online publisher.
Further Reading and Resources
We have more guides, tutorials, and infogragphics related to copyright, security, and running a website:
Secrets of a Killer Blog Post: this short video explains how to create great blog posts.
7 Reasons People Don't Trust Your Website: our infographic on how to improve your online credibility.
Freelance Writer and Blogger Career Information and Resources: learn all about becoming a professional writer or blogger.
Ultimate Guide to Copyright
Bloggers really need to understand copyright, so we've created a great resource, The Ultimate Guide to Copyright.
And it really is the ultimate guide; it will tell most of what you need to know. After that, you'll probably need a lawyer.