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Internet Defamation Guide - 10 Questions to Spot or Avoid Online Defamation

As internet speech grows, so do internet defamation cases. It is easier today to ruin names, brands, and reputations with online negative statements. Yet it is also easier today to raise issues and advocate change before a widespread audience connected by the internet. 

These 10 questions should help an online company spot or a blogger avoid online defamation.

1. Is the statement defamatory in character?

A defamatory statement (written, oral, or visual) hurts another’s reputation. Accusations that another committed a crime or engaged in immoral or unprofessional conduct are per se defamatory, which can lead to automatic damages. An embarrassing or annoying statement is not defamatory.

2. Is the statement false?

A defamatory statement must be false. Minor or technical inaccuracies, however, do not count as false in defamation cases. Conversely, truth is a defense—many times the best defense—to defamation. Examine the “gist” or meaning of the statement to determine if it is true or false.

3. Is the statement damaging?

A defamatory statement must result in actual or economic harm. Actual harm means someone thought “the less of” the person, even if short lasting. Economic harm means dollar damages—sales or opportunity losses, as well as costs to fix the damage. Harm must connect in some way to the statement, and for some “libel-proof” persons with already damaged reputations, the statement may not cause harm at all.

4. Was the statement made with fault?

A defamatory statement must be made negligently or maliciously, depending on the target of the statement. A public figure/official must prove that the statement was made maliciously—with knowledge of its falsity or in reckless disregard of its truth. Threats, other negative statements, hostility, competitive rivalry, and reliance on anonymous sources may reflect maliciousness. A private person need only prove that the statement was made negligently or carelessly.

5. Is the statement an opinion?

A defamatory statement is a factual statement, not an opinion. Ask whether the language and context of the statement conveys factual assertions that could be proven true or false. Exaggerated language, sarcasm, photos or headline captions, or the internet forum itself (social media) may give the impression of an opinion, not a factual statement. Although cautionary phrases such as “in my opinion” or “I believe” may do the same, they are no guaranty of an opinion.

6. Is the statement protected (privileged)?

A defamatory statement may be protected as privileged. For example, the fair report privilege protects accurate statements on or from official public documents or proceedings. The judicial privilege protects statements made in court. The wire service defense protects re-published statements from certain media. But altering otherwise privileged statements, or sending them outside the protected zone—to family, friends, competitors, or the internet at large—may destroy any privilege.

7. Does the statement cover products or services?

A defamatory statement may also target one's products or services. As such, the statement may be disparaging (“trade libel”). A disparaging statement must be made maliciously and result in dollar damages. It may also violate unfair trade practice or false advertising laws (Lanham Act) if, for example, the statement is made in the commercial advertising context.

8. Did others help make the statement?

If others helped make or publish a defamatory statement, they too could face liability as co-conspirators or aiders and abettors. Even re-publishing a defamatory statement (follow-on bloggers or re-tweeters) could subject one to liability. Be aware of the consequences in helping to create or publish negative statements.

9. Is there an applicable anti-SLAPP law?

Anti-SLAPP laws weed out weak defamation suits. If the defamation plaintiff cannot establish an early likelihood of winning, the suit may be tossed. The plaintiff could then face payment of attorneys' fees and costs to the defendant. Over half the states have some type of anti-SLAPP law. Consider the audience and placement of the defamatory statement—they factor into the location of a defamation suit and what laws govern.

10. Is it worth pursuing / making the statement?

Going after an online defamatory statement may be important to defend one's name, reputation, or brand. But the pursuit can be expensive and time consuming. It can also backfire, drawing unwanted attention to the statement or exposing the underlying facts. On the other hand, making the statement may be important to bring issues to the forefront via the internet. But losing a defamation fight could cost one’s credibility—a blogging career may be over. In short, it is sometimes best to let things go—for everyone.

This guide is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views expressed herein are those of the author(s) under general defamation principles, and are not necessarily the views of any law firm client(s).