What is Online Defamation and What Are Its Most Common Forms?
The two types of online defamation are libel and slander. Libel is defamation in writing and slander is oral defamation. Both libel and slander may occur online. Libel typically occurs through defamatory online postings, articles, comments, or reviews. Slander may occur through the uploading of defamatory videos and audio files.
Because the internet now dominates how we do business and spend our personal time, online defamation has risen to a rampant level. The big challenge, however, is that online defamation can be highly damaging and difficult, if not impossible, to retract or remediate.
The many common forms of online defamation include:
- Blog posts, including comments, updates and rebuttals;
- Posts on social media, including Facebook, Instagram, LinkedIn, Twitter, etc.;
- Posts on internet directories and review websites, e.g., Ripoff Report, Avvo, Angie’s List, etc.
- Posts on list-serves; and
- Letters to the editors of magazines and newspapers.
One of the major problems with defamation in the online forum is legal immunity from suit. Under the Communications Decency Act, 47 U.S.C. ‘ 230, the online forum cannot be held liable for a post that another party has authored on the online forum. For example, Facebook cannot be held liable for a defamatory post that a user makes about another person in a Facebook post.
The inability to assert a legal claim against the online forum makes obtaining legal relief for the defamed party more difficult, particularly when most defamatory posts are made online anonymously or through a pseudonym. Such immunity does not necessarily apply, however, to prevent a discovery subpoena to the online forum that seeks to identify the author who made the defamatory statements.
When seeking redress for online defamatory posts, several additional challenges also exist. First, some online forums have strict policies against retracting defamatory statements absent the defamed party obtaining a court judgment that meets specific criteria. Moreover, the online forum may, in its discretion, still only post the judgment as a rebuttal instead of removing the defamatory statement from its website. Second, because of free speech considerations, the laws of many states, including Florida, do not permit injunctive relief to stop future online defamation. Third, the traditional defenses to defamation apply to online defamation, including a) the statements were true, b) the statements were matters of pure opinion, or c) the statements were protected by an absolute or qualified privilege. Fourth, many parties who commit online defamation are not collectable if a judgment is issued against them for defamation, compounding the problem that no injunctive relief is available.
Because of the many hurdles in online defamation cases, it is important for a party who has suffered online defamation with meaningful damages to retain competent counsel to investigate the matter and bring suit, if necessary.
If you would like a free consultation for your online defamation situation, please call the attorneys at McCabe Rabin, P.A. at 561-659-7878 or 877-915-4040.