Online Defamation Part 1

The Internet. Can’t live with it, can’t live without it. A friend posts something online about you in fun, in jest, out of spite or anger, and now it is out there for the world to see, read, and/or comment upon. Oh, it will go away or blow over, you think. But will it? The answer is No.

In my practice, I find people have misconceptions about what defamation is, so let me clarify the terms defamation, libel and slander. Defamation is generally the broader term for:

• Libel, referring to a defamatory statement made in print
• Slander, referring to a defamatory statement made orally

A simplified definition would be an untrue statement of fact regarding an identifiable person, published to a third person, that results in damages, but that deceptively simple definition contains within it a host of difficult issues:

• What exactly is an identifiable person?
• What constitutes a statement of fact?
• What does it mean to publish something?
• Who is a publisher?

When defamation occurs on the Internet, these issues become even more complex. Thus, identifying the author of the defamatory statement (a simple issue when defamation occurs in a traditional context) becomes impossibly difficult when the defamation occurs online. People can hide behind anonymous internet handles and make the most outrageous defamatory comments that can really hurt you or your business.

This is one of the major hurdles to bringing a case when defamation occurs online. A person may even have well founded suspicions as to the author of the defamatory post, but proving it can be very difficult. While it is possible to locate an Internet Service Provider (ISP) address which will tell you where the computer that the defamatory remark was posted from is located, the ready availability of public computers in internet cafes and public libraries can make it impossible to identify the individual responsible.

The other problem is the long shelf life of defamatory statements on the Internet. Once they get out there, it is almost impossible to make them disappear. With a newspaper or magazine, it gets published once and gets thrown out so the comment would disappear and thus would no longer be an issue. A defamatory statement contained in a book may be removed in subsequent printings of the book either voluntarily or as the result of a lawsuit.

Unfortunately, on the Internet, something that is published once, remains there and never completely disappears.

So what do you do? In the next part of this series, I’ll outline some possible approaches when defamation occurs on the Internet.