Bloggers' FAQ - Online Defamation Law

The Bloggers' FAQ on Online Defamation Law provides an overview of defamation (libel) law, including a discussion of the constitutional and statutory privileges that may protect you.

What is defamation?

Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

What are the elements of a defamation claim?

The elements that must be proved to establish defamation are:

1. a publication to one other than the person defamed;
2. a false statement of fact;
3. that is understood as

a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.

4. If the plaintiff is a public figure, he or she must also prove actual malice.

Is truth a defense to defamation claims?

Yes. Truth is an absolute defense to a defamation claim. But keep in mind that the truth may be difficult and expensive to prove.

Can my opinion be defamatory?

No — but merely labeling a statement as your "opinion" does not make it so. 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 highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database").

What is a statement of verifiable fact?

A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. To illustrate this point, consider the following excerpt from a court (Vogel v. Felice) considering the alleged defamatory statement that plaintiffs were the top-ranking 'Dumb Asses' on defendant's list of "Top Ten Dumb Asses":

A statement that the plaintiff is a "Dumb Ass," even first among "Dumb Asses," communicates no factual proposition susceptible of proof or refutation. It is true that "dumb" by itself can convey the relatively concrete meaning "lacking in intelligence." Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use "dumb" in isolation, but as part of the idiomatic phrase, "dumb ass." When applied to a whole human being, the term "ass" is a general expression of contempt essentially devoid of factual content. Adding the word "dumb" merely converts "contemptible person" to "contemptible fool." Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. ... If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

This California case also rejected a claim that the defendant linked the plaintiffs' names to certain web addresses with objectionable addresses (i.e. www.satan.com), noting "merely linking a plaintiff's name to the word "satan" conveys nothing more than the author's opinion that there is something devilish or evil about the plaintiff."

Is there a difference between reporting on public and private figures?

Yes. A private figure claiming defamation — your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop — only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement.

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 difficult standard for a plaintiff to meet.

Who is a public figure?

A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures — a government employee, a senator, a presidential candidate — someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure — for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.

Examples of public figures:

• A former city attorney and an attorney for a corporation organized to recall members of city counsel
• A psychologist who conducted "nude marathon" group therapy
• A land developer seeking public approval for housing near a toxic chemical plant
• Members of an activist group who spoke with reporters at public events

Corporations are not always public figures. They are judged by the same standards as individuals.

What are the rules about reporting on a public proceeding?

In some states, there are legal privileges protecting fair comments about public proceedings. For example, in California you have a right to make "a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued." This provision has been applied to posting on an online message board, Colt v. Freedom Communications, Inc., and would likely also be applied to blogs. The California privilege also extends to fair and true reports of public meetings, if the publication of the matter complained of was for the public benefit.

What is a "fair and true report"?

A report is "fair and true" if it captures the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but should not deviate so far as to produce a different effect on the reader.

What if I want to report on a public controversy?

Many jurisdictions recognize a "neutral reportage" privilege, which protects "accurate and disinterested reporting" about potentially libelous accusations arising in public controversies. As one court put it, "The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them."

If I write something defamatory, will a retraction help?

Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting "special damages" — the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff's failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)

If you get a reasonable retraction request, it may help you to comply. The retraction must be "substantially as conspicuous" as the original alleged defamation.

What if I change the person's name?

To state a defamation claim, the person claiming defamation need not be mentioned by name — the plaintiff only needs to be reasonably identifiable. So if you defame the "government executive who makes his home at 1600 Pennsylvania Avenue," it is still reasonably identifiable as the president.

Do blogs have the same constitutional protections as mainstream media?

Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."

What if I republish another person's statement? (i.e. someone comments on your posts)

Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker — if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others. See the Section 230 FAQ for more.

The vast weight of authority has held that Section 230 precludes liability for an intermediary's distribution of defamation. While one California court had held that the federal law does not apply to an online distributor's liability in a defamation case, the case, Barrett v. Rosenthal, was overturned by the California Supreme Court (EFF filed an amicus brief in this case)

Can I get insurance to cover defamation claims?

Yes. Many insurance companies are now offering media liability insurance policies designed to cover online libel claims. However, the costs could be steep for small blogs — The minimum annual premium is generally $2,500 for a $1 million limit, with a minimum deductible of $5,000. In addition, the insurer will conduct a review of the publisher, and may insist upon certain standards and qualifications (i.e. procedures to screen inflammatory/offensive content, procedures to "take down" content after complaint). The Online Journalism Review has an extensive guide to libel insurance for online publishers.

Will my homeowner's or renter's insurance policy cover libel lawsuits?

Maybe. Eugene Volokh's the Volokh Conspiracy notes that homeowner's insurance policies, and possibly also some renter's or umbrella insurance policies, generally cover libel lawsuits, though they usually exclude punitive damages and liability related to "business pursuits." (This would generally exclude blogs with any advertising). You should read your insurance policy carefully to see what coverage it may provide.

What's the statute of limitation on libel?

Most states have a statute of limitations on libel claims, after which point the plaintiff cannot sue over the statement. For example, in California, the one-year statute of limitations starts when the statement is first published to the public. In certain circumstances, such as when the defendant cannot be identified, a plaintiff can have more time to file a claim. Most courts have rejected claims that publishing online amounts to "continuous" publication, and start the statute of limitations ticking when the claimed defamation was first published.

What are some examples of libelous and non-libelous statements?

The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false):

• Charging someone with being a communist (in 1959)
• Calling an attorney a "crook"
• Describing a woman as a call girl
• Accusing a minister of unethical conduct
• Accusing a father of violating the confidence of son

Not-libelous:

• Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
• Calling a TV show participant a "local loser," "chicken butt" and "big skank"
• Calling someone a "bitch" or a "son of a bitch"
• Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.

How do courts look at the context of a statement?

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.

Context is critical. For example, it was not libel for ESPN to caption a photo "Evel Knievel proves you're never too old to be a pimp," since it was (in context) "not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment." However, it would be defamatory to falsely assert "our dad's a pimp" or to accuse your dad of "dabbling in the pimptorial arts." (Real case, but the defendant sons succeeded in a truth defense).

What is "Libel Per Se"?

When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se:

A statement that falsely:

• Charges any person with crime, or with having been indicted, convicted, or punished for crime;
• Imputes in him the present existence of an infectious, contagious, or loathsome disease;
• Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
• Imputes to him impotence or a want of chastity.

Of course, context can still matter. If you respond to a post you don't like by beginning "Jane, you ignorant slut," it may imply a want of chastity on Jane's part. But you have a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact.

What is a "false light" claim?

Some states allow people to sue for damages that arise when others place them in a false light. Information presented in a "false light" is portrayed as factual, but creates a false impression about the plaintiff (i.e., a photograph of plaintiffs in an article about sexual abuse, because it creates the impression that the depicted persons are victims of sexual abuse). False light claims are subject to the constitutional protections discussed above.

What is trade libel?

Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in you're a particular company's chili (if it isn't true).