Online defamation is a false statement made on the internet that harms someone’s reputation. This can be through social media posts, comments on websites, articles, or any other form of digital communication. Unlike in-person remarks, online statements can spread rapidly and have a lasting impact. Defamation can be classified into two types:

1. Libel: Written statements that are defamatory. Most online defamation falls under this category, given the written nature of internet communications.
2. Slander: Spoken defamatory statements. This is less common online but can occur in videos or audio recordings.

To be considered defamation, a statement must be:

• False: Truthful statements, even if harmful, are not defamation.
• Public: Shared with someone other than the person it’s about.
• Damaging: The statement must harm the reputation of the person or entity it’s about.

Explanation of its Significance in the Digital Age

In the digital age, the significance of online defamation has grown immensely due to:

• Wider Reach: Digital platforms can spread information globally in seconds, making defamatory statements more impactful.
• Anonymity: Online, individuals can often make statements anonymously, making it harder to hold them accountable.
• Permanence: Once something is published online, it can be difficult to completely remove, potentially causing long-term reputation damage.
• Speed: The rapid dissemination of information online means that defamatory statements can do significant harm before they are even identified and addressed.
• Accessibility: With the internet being so accessible, more people can publish content, increasing the chances of defamatory statements being made.

Legal Framework

Overview of Laws Governing Online Defamation

Online defamation is governed by a mix of traditional defamation laws and specific internet regulations, which vary from one country to another. In general, these laws aim to balance freedom of expression with the protection of individuals’ reputations. Key points include:

• Burden of Proof: In many jurisdictions, the person claiming to be defamed must prove that the statement is false and damaging.
• Public Figures: Public figures often have a higher burden to prove defamation, as they must usually show that the statement was made with actual malice or reckless disregard for the truth.
• Retractions and Apologies: Some laws provide a defense or mitigation if the publisher retracts the defamatory statement or offers an apology.

Differences in Legal Standards Across Countries

• United States: Emphasizes freedom of speech. Plaintiffs must prove the falsity of the statement and, in the case of public figures, malicious intent.
• United Kingdom and Commonwealth Countries: Tend to be more plaintiff-friendly, with the burden often on the defendant to prove the truth of the statement.
• European Union: Includes ‘right to be forgotten’ laws, allowing individuals to request the removal of personal information from search engines under certain conditions.
• Varied Internet-Specific Laws: Some countries have specific laws for online content, while others apply traditional defamation laws to the online context.

Challenges in Applying Traditional Defamation Laws to the Online Environment

• Jurisdiction Issues: Determining which country’s laws apply can be complex due to the global nature of the internet.
• Anonymity: Identifying anonymous online posters can be a significant hurdle.
• Rapid Spread of Information: The speed at which information spreads online makes it challenging to contain defamatory statements.
• Platform Liability: Determining the extent to which internet platforms (like social media sites) are responsible for user-generated content is a legal grey area.
• Evolving Nature of Online Communication: The constant evolution of online platforms and communication methods can outpace legal developments.

Identifying Online Defamation

Understanding what constitutes online defamation involves several key criteria and considerations:

Criteria to Determine if a Statement is Defamatory

To be considered defamatory, a statement typically must meet these criteria:

1. Falsehood: The statement must be false. True statements, no matter how damaging, are not considered defamatory.
2. Harmful: The statement must harm the reputation of the person or entity it’s about. This can include causing others to think less of them, avoiding them, or not doing business with them.
3. Publication: The statement must be made to someone other than the person it’s about. In the online context, this means it must be shared where others can see it, like social media, forums, or websites.

The Role of Context in Interpreting Statements

Context is crucial in determining defamation:

• How Others Perceive the Statement: A statement’s impact often depends on how others understand it, not just the intent behind it.
• Surrounding Information: The context in which a statement is made can change its meaning. For example, a statement made in a satirical article might be understood differently than the same statement in a news article.

The Importance of Distinguishing Opinion from Defamation

• Opinion vs. Defamation: Opinions are generally not considered defamatory, as they represent personal views rather than assertions of fact. However, if an opinion implies undisclosed damaging facts as its basis, it might be considered defamatory.
• Statement of Fact: A statement presented as a fact, rather than an opinion, is more likely to be considered defamatory if it is harmful and false.
• Context of Expression: The way a statement is presented can influence whether it’s seen as an opinion or a factual claim. For instance, a review on a blog might be more clearly opinion, whereas a statement on a news site might be perceived as fact.

Steps to Address Online Defamation

A. Documentation and Evidence Gathering

1. Collecting Evidence:
   • Take screenshots of the defamatory statements, including the URL and the date and time they were posted.
   • If comments or reactions contribute to the defamation, document these as well.
2. Preserving Evidence:
   • Save copies of all evidence in a secure location.
   • Consider using digital tools that can officially timestamp and verify the authenticity of your screenshots or digital records.

B. Legal Considerations

1. When to Seek Legal Advice:
   • If the defamation is severe or causing significant harm, consult a lawyer specializing in defamation law.
   • A legal expert can provide guidance on the viability of your case and the appropriate steps to take.
2. Understanding Cease and Desist Letters:
   • These are formal requests to stop harmful activities, in this case, the spreading of defamatory statements.
   • They are often the first step before legal proceedings, serving as a warning.

C. Contacting Websites and Platforms

1. Guidelines for Requesting Content Removal:
   • Contact the website or platform hosting the defamatory content. Most have policies and procedures for handling defamation complaints.
   • Be clear, concise, and provide evidence to support your claim.
2. Dealing with Non-Responsive Platforms:
   • If a platform does not respond, consider escalating to higher authorities within the organization.
   • As a last resort, legal action against the platform may be considered, although this comes with its own complexities.

D. Legal Actions and Remedies

1. Filing a Lawsuit: Pros and Cons:
   • Pros: Can result in the removal of defamatory content, monetary compensation, and public vindication.
   • Cons: Costly, time-consuming, and may bring more public attention to the defamatory statements.
2. Alternative Dispute Resolution Methods:
   • Mediation or arbitration can be faster and less confrontational ways to resolve defamation issues.
   • These methods often involve a neutral third party to help reach a settlement.

Preventive Measures and Best Practices

Tips for Individuals and Businesses to Avoid Defamation

1. Think Before You Post:
   • Always consider the potential impact of your online statements on others’ reputations.
   • Avoid posting or sharing unverified or potentially harmful information.
2. Understand the Law:
   • Familiarize yourself with the basics of defamation law to understand what constitutes defamatory statements.
3. Implement Policies:
   • For businesses, establish clear guidelines for employees regarding social media and online communications.
   • Encourage responsible and respectful online behavior.
4. Regular Monitoring:
   • Monitor what is being said about you or your business online. This can include social media mentions, reviews, and forum discussions.
   • Set up Google Alerts or use reputation monitoring tools to stay informed.
5. Responding to Negative Comments:
   • Address negative comments professionally and constructively, avoiding escalation into defamatory exchanges.
6. Educate and Train:
   • Educate yourself and your team about the importance of maintaining a positive online presence.
   • Offer training on effective communication and online etiquette.

The Role of Online Reputation Management

• Proactive Monitoring and Management:
  • Continuously monitor your online presence to catch any potentially harmful content early.
  • Use reputation management tools to keep track of your digital footprint.
• Building a Positive Presence:
  • Actively work on creating a positive online image through regular, positive content, such as blog posts, social media updates, and community engagement.
  • Encourage satisfied customers or clients to leave positive reviews and testimonials.
• Dealing with Negative Content:
  • Develop a plan for responding to negative or defamatory content.
  • This can include direct responses, correction of misinformation, or seeking removal if the content is defamatory.
• Seeking Professional Help:
  • In cases of severe reputation damage, consider hiring professionals specializing in online reputation management.

Additional Resources

1. Legal Information Institute (Cornell Law School): This resource offers a comprehensive overview of defamation, including the definition, legal elements, and variations in state laws. It also discusses the differences between libel and slander, the criteria for proving defamation, and the role of truth as a defense. Visit the page for in-depth information: Defamation at Legal Information Institute​​​​​​​​​​​​​​​​.
2. Florida State University Law Review: For scholarly articles and in-depth legal analyses on defamation, you can refer to articles published in the Florida State University Law Review. These articles may provide a more academic perspective on defamation law. Access their articles here: Florida State University Law Review​​.
3. Syracuse Law Review: Another excellent source for detailed articles on defamation is the Syracuse Law Review. This can be particularly useful for understanding specific case studies and legal interpretations. Explore their articles at: Syracuse Law Review​​.
4. Harvard Law Review: The Harvard Law Review provides a prestigious platform for legal scholarship, including discussions on defamation law. Their articles often include analysis of recent legal developments and theoretical perspectives. Visit their site for more information: Harvard Law Review​​.

** Our originally published article in 2008 below **

Defamation And Its Rise On The Internet

• Please remember to consult an attorney. This should not be considered legal advice.

The Internet has had a massive impact on many areas of personal and professional life. Defamation laws and libel lawsuits are one such area and many individuals, businesses, and website owners have fallen foul of the belief that they can write anything about anybody when they are online. In light of the increase in libelous comments governments, judges, and courts around the world have extended their own laws and regulations to include comments made online as well as in other more traditional forms of media.

While defamation, in the shape of slanderous and libelous comments, has been around for many decades, the problem has been exacerbated by the advance of the Internet as a reporting and social tool. While comments made in newspapers and even on the TV have a limited shelf life, those made on the Internet can remain on the website where they were first added as well as on other blogs and websites and even in the cache of search engines for many more years.

Fortunately, this same problem also leads to a possible resolution. While successfully trying an online defamation case can prove difficult, positive comments and good SEO can be used to beat defamatory comments by consigning them to lower search engine positions. This may not be an absolute solution but it can certainly help to rebuild character and improve online branding following a defamatory attack.

What Is Defamation?

The publication or broadcast of any libelous or slanderous statement about an individual or business that can be proven to be false and published with the intention of harming that entity’s reputation is considered to be defamation. Online defamation is the publication of such statements made on any Internet based media including blogs, forums, websites, and even social networking websites. While many Internet users believe that they are free to say and do as they like while on the Internet, this is untrue and the same defamation laws and regulations stand for online defamation as they do in any form of media.

Acts And Laws That Govern Online Defamation

As social networking and blogging have become popular tools for Internet users to voice their opinion and get involved in discussions, online defamation cases have also been on the rise. While there are very few or no specific online defamation acts, libel lawsuits that cite the Communications Decency Act have been successfully been tried in courts around the world. Also, there are rumors that some countries around the world, especially the UK, are set to release specific online defamation laws that deal specifically with these laws.

The Communications Decency Act Of 1996

The Communications Decency Act of 1996 (CDA) was actually established to try and deal with the publication of pornography and other adult content freely and widely available on the Internet. However, it was also created in a bid to combat any indecent and defamatory content found on websites and other online publications.

Section 230 of the CDA is the section that is perhaps most relevant to online defamation. It attempts to deal with the question of an ISP’s liability to content that is stored on their servers. Although it does not specifically outline all instances, it does contend that an ISP is not responsible for the information published by their users unless and until they are informed of any infringement; at this point, the ISP should act to remove the content or face legal action themselves.

The Communications Decency Act of 1996 can be viewed in full at the FCC website – http://www.fcc.gov/Reports/tcom1996.txt

The Difficulties With Proving Defamatory Comments

Much of the difficulty that surrounds successfully winning an online defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statement is false and written with the intention of causing damage.

Tracing an individual that has posted a defamatory comment can prove very difficult. It is certainly possible to find out the details of a computer that was used to publish a statement or post content. However, if this is a public computer then it is almost impossible to narrow down the search in order to find the culprit. With Internet access being afforded to computers in Internet cafes, libraries, businesses, and other public areas, this makes it very difficult to find the source of the illegal content.

Section 230 Of The CDA And The ISP’s Responsibility

ISPs are no longer considered to be responsible for the information that their users publish online. However, numerous court cases and other actions have led to ISPs being forced to remove content from their servers and even provide personal details including the IP address of known offenders. Some ISPs will act quickly to remove defamatory content from their servers because once informed of its existence they are also considered guilty of defamation to some degree.

For all the difficulties involved with successfully trying an online defamation case, many plaintiffs have been successful in their cases although varying degrees of success have been reported. A list of some of the cases that deal with Section 230 of the CDA can be viewed at the Internet Library of Law and Court Decisions – http://www.internetlibrary.com/topics/comm_decency_act.cfm

Successful Lawsuits Gone Bad

The court case results only show a partial picture of the level of success that can be achieved. The ability to publicly recant a statement online is not the same as it is through other media and the libelous claims can still remain on the original website or blog. The statements may have also been published on other blogs and references on numerous other websites as well as being found in the cache of search engines. Success in court does not help to alleviate these problems and in some cases the problem has actually worsened.

Alsher Usmanov And Craig Murray

One such case involved Alsher Usmanov, a well known Ukrainian businessman who owned shares in a successful English football club. Former UK ambassador to the Ukraine, Craig Murray, wrote a book and a blog on Usmanov’s alleged criminal activities and during an attempt to right the defamation, Usmanov’s lawyers sent “cease and desist” letters to host Fasthost. Following an unsuccessful attempt by Fasthost to have the content removed, Fasthost closed down all websites belonging to the site’s administrator including several high profile websites belonging to other individuals and organizations.

Murray’s blog was eventually republished elsewhere and rather than helping to combat the effects of the defamation, this action caused more negative press for Usmanov and simply brought greater media attention to the work of Craig Murray.

Combating Defamatory Comments Using The Internet

A knowledge of how the Internet works is critical to successfully combating online defamation and there are steps you can take either alongside or instead of legal action. It is also important to understand the readers of a particular post or viewers of other defamatory content online. While newspaper and magazine reporting is heavily regulated, citizen journalism and online commenting is not as easily enforced and many informed readers do understand this; at least to some degree.

Social networks are certainly one area of online publication that are rife with instances of online defamation. Posting considered and factual responses to any allegations can prove a fruitful first step. You can also post comments on your own site and through other publishing avenues that you regularly use.

Positive Results Using The Internet And SEO

One individual started a particularly vociferous hate campaign against the country’s largest dairy producer. He established hate sites using similar domain names and set about trying to bring down the company’s reputation. The company published their own versions of events on their website and encouraged employees to do the same. Not only has the hate content stopped being published but anybody that searches under the company’s name will find that their own content is listed far above the hate content posted by one disgruntled individual.

This use of SEO can extend beyond the borders of your own Internet real estate too. Social networking websites, blogs, forums, and other types of online publication can be created in order to combat online defamation. Positive posts and comments can be placed on pages that are intended to target the negative exposure that a company has received in order to consign these to the lower echelons of the search results. While the original content may not be removed, it can be beaten using this technique while also generating improved search results for your own website.

This type of hate or negative press campaign is usually short lived because continued efforts are required on the part of the individual or group that started it. While it is in the best interests of your business to counteract the defamatory comments, most individuals will eventually tire of posting these comments.

Personal Opinions

It should be noted that personal opinion on any topic can be posted on blogs, websites, and other sources but according to defamation laws and statutes, libelous comments cannot be thinly veiled as personal opinion and judges and courts will consider each statement or comment accordingly to ascertain whether or not it truly is an expression of personal opinion or is, in fact, a defamatory comment.

The Statute Of Limitations

Another point of note is that a statute of limitations does exist for online content, and while these statutes do differ in some states, the most common statute lasts for a period of twelve months. This period starts from when the comment is first posted online since claims that publishing on the Internet is the equivalent of continuous publication have already been rejected by most courts.

Protect Yourself And Your Business With Media Liability Insurance

Media liability insurance can be obtained through many insurance companies and these policies are created to specifically deal with the costs of defamation through online and offline sources. These can prove to be an inexpensive way to help counteract future problems but costs of around $3,000 and upwards per annum can make them too expensive for smaller blogs and websites. These often also include a considerable minimum deductible of twice the value of the annual premium (a minimum of $6,000 in some cases) to afford coverage of up to $1m.

The Ramifications Of Legal Action

Legal action should be considered a last resort because it can prove very costly and results can vary. However, if this does appear to be your final option then legal action can start with “cease and desist” letters and a number of other steps, eventually culminating in a lawsuit that involves damages and punitive costs. If all else fails then this may prove to be your only option at setting the record straight.

Know Your Rights With Regards To Online Defamation

To conclude, defamation and defamatory comments are as much a problem on the Internet than in other forms of media if not more so. However, the same rules govern online publications as newspaper and other forms of media so there are steps and actions that can be taken to remedy the situation. Ensuring that hate sites and defamatory comments appear lower down search listings by employing sound SEO and counteractive measures should be your first consideration but if legal action is necessary then there are records of numerous successful legal campaigns for you to take heart from.

Additional Resources

The Cyber Civil Rights Legal Project – This project provides resources and advocacy for victims of online harassment and defamation.

Electronic Frontier Foundation (EFF) – EFF has various resources on free speech online, which includes issues related to online defamation.

The Berkman Klein Center for Internet & Society at Harvard University – This center conducts research on internet and society, including online defamation.

The Internet Law Center – This center offers information on internet law, which covers aspects of online defamation.

FindLaw – It’s a comprehensive resource for legal information and has sections specifically about online defamation.