Mad Online (part 1): Defamation Basics
Defamation lawsuits used to be mainly the domain of celebrities and the media companies that wrote or spoke about them. Thanks to the Internet (and social media in particular), though, everyone is now both a publisher and a potential subject of publication. As a consequence, if you spend any significant amount of time online, there’s a good chance you’ve encountered someone threatening to sue someone else over something they posted. Unfortunately, defamation law may have captured the imagination of many online communities, but it's often not well understood.
Knowmad Law has dealt extensively with defamation claims related to social media and other online speech. This week, we’ll introduce some basic defamation concepts that Internet users ought to know about. Next week, we’ll take a look at some issues particular to cyberspace.
First, terminology. “Libel” and “slander,” while often used interchangeably with “defamation," are in fact subspecies. Libel is simply written defamation, whereas slander is spoken defamation. However, in most jurisdictions, libel and slander are no longer separate causes of action. Even in states that maintain a distinction between slander and libel (such as California), the differences tend to be fairly minor and technical, and most lawyers who practice in this area tend to lump everything together as just “defamation.”
U.S. defamation statutes vary from state to state. However, these state laws are shaped by a strict upper threshold imposed by the First Amendment. The Supreme Court has long held that defamatory statements are one of the very few exceptions to the free speech guarantees of the U.S. Constitution. At the same time, it has constrained what state legislatures can constitutionally define as defamation.
Generally speaking, defamation is a false statement about someone, made to someone else, that results in some harm.
Fact and Opinion
Falsity is essential to defamation. If a statement is true, it's not defamatory.
By extension, defamatory speech must be capable of being proved true or false. In other words, there has to be a factual statement involved. It doesn't matter how offensive an insult is or how unwarranted someone's hostile opinion, unless it sets forth some objective fact it's not defamatory.
The form of a statement matters less than its content. You can’t loophole your way through a defamation claim by framing your false factual assertions as opinions, tacking on empty qualifiers like “I think” or “In my opinion.” Similarly, even genuine expressions of opinion can be actionable if the author implies that the opinion is based on certain undisclosed facts, which themselves are false.
The reverse is also true. Opinions don’t become defamatory just because they’re framed as facts. Things that, taken out of context, could conceivably present factual assertions—for example, stating that someone is a “thief” or “philanderer”—are often no more than what defamation caselaw has come to term “rhetorical hyperbole.” By the same token, just as opinions based on false undisclosed facts might be defamatory, assertions based on true disclosed facts are usually not defamatory, even if the assertion itself isn’t technically accurate (such as where the dishonest actions of a purported “thief” might not meet the legal definition for theft).
In addition, depending on the state, certain types of statements are sometimes subject to additional protections called “privileges.” Common privileges include those for statements made about public figures, made about matters of public concern, made in the course of official proceedings (like court cases), or made to warn others of harm. Privileges can be “absolute,” in which case the statements cannot legally be defamatory, or “qualified,” in which case they’re not defamatory as long as the author reasonably thought the statements were true (without “malice” in legal jargon).
Despite these barriers, there has traditionally still been a concern in the United States about frivolous defamation lawsuits being used to chill legitimate free expression. Such lawsuits were given the acronym-friendly label “strategic lawsuits against public participation” (SLAPPs).
In response, many states passed laws called Anti-SLAPP—or sometimes SLAPPback—statutes. Anti-SLAPP laws vary, but they generally provide authors of certain types of statements (usually those made about public issues or in exercise of the author's civic rights) with a tool to more quickly dismiss a defamation suit and/or recover legal costs if they win.
Defamation claims are thus much more easily threatened than vindicated. But that hasn't stopped defamation law from looming as a constant shadow over all sorts of Internet activity, from SEO and reputation management for businesses to parents' rising concerns over cyberbullying to the pettiest of Twitter feuds. Next week, we’ll take a look at some issues specific to online discourse, including anonymous speech and liability for user-generated content.