# Q: What is defamation? # Q: What are the elements of a defamation claim? # Q: What defenses may be available to someone who is sued for defamation? # Q: Can an opinion be defamatory? # Q: Is there a difference between reporting on public and private figures? # Q: Who is a public figure? # Q: What is libel? # Q: What is slander? # Q: What is libel per se? # Q: What is the "publication" of a defamatory statement? # Q: May someone other than the person who originally made the defamatory statement be legally liable in defamation? # Q: What is Malice or "Actual Malice"? # Q: Can an ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board? # Q: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party? # Q: What are the rules about reporting on a public proceeding? # Q: What is a "fair and true report"? # Q: What if I want to report on a public controversy? # Q: If I write something defamatory, will a retraction help? # Q: What if I change the person's name? # Q: What's the statute of limitation on libel? # Q: What are some examples of libelous and non-libelous statements? # Q: What is a "false light" claim? # Q: What is a SLAPP suit? # Q: What is trade libel? # Q: What are "special damages"? When are they awarded? # Q: How do courts look at the context of a statement? # Q: Do blogs have the same constitutional protections as mainstream media? # Q: What are the privacy torts? # Q: Can I be sued for publishing somebody else's private facts? # Q: What are private facts? # Q: What is offensive to a reasonable person? # Q: How do I know if a private fact is "newsworthy"? # Q: What is "intrusion into seclusion"? # Q: What is a right of publicity claim? # Q: What is a statement of verifiable fact? Question: What is defamation? Answer: 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. Question: What are the elements of a defamation claim? Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements: 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. Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content. Question: Can an opinion be defamatory? Answer: 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"). Question: Is there a difference between reporting on public and private figures? Answer: 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. Question: Who is a public figure? Answer: 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. Question: What is libel? Answer: Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What are the elements of a defamation claim? Question: What is slander? Answer: Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. Actual damages must be proven for someone to be held liable for slander. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing. Question: What is libel per se? Answer: 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. Question: What is the "publication" of a defamatory statement? Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken. Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation? Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law. Question: What is Malice or "Actual Malice"? Answer: Malice is often defined as, "the intent, without justification or excuse, to commit a wrongful act." It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. "Actual malice" is a legal term of art that is mainly relevant to defamaton claims. "Actual Malice" is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity-- a "should have known" standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with "actual malice". Question: Can an ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board? Answer: Not in the United States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws. Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party? Answer: No, they are not required to delete. 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law. Question: What are the rules about reporting on a public proceeding? Answer: 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. Question: What is a "fair and true report"? Answer: 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. Question: What if I want to report on a public controversy? Answer: 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." Question: If I write something defamatory, will a retraction help? Answer: 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. Question: What if I change the person's name? Answer: 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. Question: What's the statute of limitation on libel? Answer: 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. Question: What are some examples of libelous and non-libelous statements? Answer: 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. Question: What is a "false light" claim? Answer: 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. Question: What is a SLAPP suit? Answer: SLAPP stands for Strategic Lawsuit Against Public Participation, or lawsuits aimed at squelching speech and involvement in government. Many states, including California, have anti-SLAPP statutes allowing one who has been targeted by a SLAPP to sue back. Online, SLAPP suits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. Many SLAPPers stop after discovering their critic's identity, using the tactic to intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment. Question: What is trade libel? Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true). Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages. Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage. Question: What are "special damages"? When are they awarded? Answer: "Special damages" are awards made to plaintiffs to compensate for actual monetary losses. In a libel case, the "special damages" would be awarded to compensate for specific losses caused by the libelous speech. The plaintiff would be required to show the specific monetary losses were caused by the libelous speech, in addition to showing that the speech was libel, in order to be awarded special damages. Question: How do courts look at the context of a statement? Answer: 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). Question: Do blogs have the same constitutional protections as mainstream media? Answer: 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." Question: What are the privacy torts? Answer: Much privacy law is state law, and may differ from state to state. As general categories, states may recognize interests in: # unreasonable intrusion upon the seclusion of another; # appropriation of the other's name or likeness; # unreasonable publicity given to the other's private life; and # publicity that unreasonably places the other in a false light before the public. (from the Second Restatement of Torts, ? 652A) Question: Can I be sued for publishing somebody else's private facts? Answer: Some jurisdictions allow lawsuits for the publication of private facts. Question: What are private facts? Question: What is offensive to a reasonable person? Question: How do I know if a private fact is "newsworthy"? Question: What is "intrusion into seclusion"? Question: What is a right of publicity claim? Answer: The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you're using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. Here are a few examples of cases where the right of publicity was at odds with the Constitution. * A newspaper's 900 number survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member's name * A newspaper's sale of a poster reproduction of its front page depicting Joe Montana was determined to merit protection under the First Amendment * A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity Question: What is a statement of verifiable fact?