Tuesday, January 10, 2012

The Defamation Superhighway: Defamation on the Internet.

This blog post is about the civil action of defamation. I get questions about defamation quite frequently – typically because of something that someone said on the Internet. For a number of prime examples, feel free to check out the website "Topix." For those of you who are unfamiliar with the website, Topix is a place where people log on to anonymously defame each other.

To a degree, I say that in jest. The aforementioned website does have other uses, and it serves as a message posting board which could, in theory, provide for a quick dissemination of useful information.

It could also serve as a place to post what are essentially free local classified ads. But from my limited experience with the website, a good percentage of the postings have the purpose of spreading gossip.

That brings us to defamation. 

The question for today (submitted by an old buddy from high school) is, “If someone says something bad about me on the internet, does that count as ‘defamation?”  Ancillary issues will include how and when, if ever, does this involve criminal law.

You might be wondering: "Greg why are you writing about defamation?  I was under the impression that defamation was a civil case, not a criminal case?"  Defamation certainly is not in the realm of criminal defense. It is a civil action, generally brought when a plaintiff feels that it defendant has made (1) false, defamatory statements (2) about the plaintiff, (3) published to another person, and that said statements (4) caused damage the reputation of the plaintiff.*  As far as I know, the only remedy available for a plaintiff in a defamation suit, is money. There is no possibility that a civil defendant in a defamation suit could face jail time as a penalty in the civil suit.

*As lawyers, we refer to each of the parts of an action that the plaintiff must prove, as “elements” of an action.

So in short, defamation occurs when someone publishes false, defamatory statements about you, which injure your reputation.  Publishing can be anything from speaking the statements out loud to another, to videotaping the statements, to posting a statement on the internet for the world to see.  Slander is defamation that is only spoken.  Libel is defamation that is memorialized in some way, such as written, or taped defamation.  That brings us to some of the defenses.

Calling a Spade a Spade

If you call the town whore a “whore,” you have not committed the tortuous act of defamation.  First and foremost, TRUTH is a defense to defamation.  I don’t know why I put “truth” in all caps.  Or why I’m writing this instead of going back and putting it in lower caps.  Sorry.  I’m in a weird mood today.

Opinions are Protected

Opinions are not statements of fact which can be proven or disproved.  Thus, if you said, “I believe Becky is a skank.” you aren’t liable for defamation.  For everyone who has ever asked, finally we are answering the question “What is the difference between a skank and a whore?”  The difference is that “whore” refers to a prostitute who has taken compensation for sexual favors.  This is something that can be proven to be fact or disproven as false.  However, the idea that someone is a dirty “skank” is mere opinion.  Thus, to call someone a “whore” (if they are not, in fact a whore, and it damages her reputation) is defamation.  Calling someone a “skank” is not.

The Town Whore is Not Protected

If you ran around telling everyone that the town whore “had devious relations with the mayor” then you probably still aren’t liable for defamation.  At least not to the whore.  Maybe to the Mayor.  After all, the town whore’s reputation is such that it would be very difficult to smear.  And even if it were false that she had relations with the mayor, the dissemination of that type of statement may actually strengthen, rather than injure, her reputation.  Someone with no value to their reputation cannot be defamed.

The Answer to the Original Defamation Question

Yes, someone can commit defamation by saying something bad about you on the internet.  But it really depends on what they say.

Lastly, this whole defamation issue can, in fact, bleed into criminal law if the statements about someone are 1) repeated and for no purpose of real communication (in which case it may constitute harassing communications); or if they 2) threaten physical harm to someone (in which case it might constitute terroristic threatening).

P.S. Don’t call me for a defamation suit.

Questions answered in this blog post: Why do people think they can talk crap about me on the internet; is it defamation for somebody to post insults on topix; what are the defenses to defamation; what is the difference between slander and lible; if somebody calls me a skank on the internet, is that defamation; what is the difference between a skank and a whore; is it a crime to defame someone on the internet; where can I find a good Louisville criminal defense lawyer?

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