Mad Online (part 2): Online Defamation
Last week, we took a basic look at libel and slander laws and the types statements that can and can’t be defamatory. This week, we continue to talk trash talk with an overview of some legal issues particular to online speech.
Sock Puppets and the Anonymous Troll
Even if what someone posted about you is genuinely defamatory (see Part 1), it’s tough to do anything about it if you don’t know who the author is. Anonymity remains a hallmark of online discourse, especially of the mud-slinging variety, and it’s not uncommon for victims of reputational attacks to find themselves weighing a defamation suit against antagonists known only as @zenger_420 or Comment #27. Sometimes, they may not even know how many attackers they face, as a single or handful of individuals can easily wage an incessant smear campaign through dozens of proxy accounts (so-called “sock puppets”).
The anonymity of online speech presents a practical hurdle to acting on a defamation claim, but it’s not necessarily the end of the road. In most states, it’s possible to file suit against unidentified defendants. Once the case is filed, you can generally petition the court to allow you to issue early discovery requests (the method by which the parties to a lawsuit discover relevant evidence). In an Internet defamation case, this would usually take the form of a third-party subpoena issued to the owner of whatever online platform is hosting the defamatory statements, requesting any information in their possession about the author’s identity.
Generally, the platform will at least have a record of the user’s Internet Protocol (IP) address, a set of unique numbers that devices use to communicate with one another over the Internet. Public databases can be used to look up whom an IP address is assigned to. If it’s an entity that keeps records of who uses its network (like a residential Internet Service Provider such as Comcast), a second set of third-party subpoenas can then be issued, hopefully resulting in disclosure of the identity of the individual who had access to the offending IP address at the relevant time. Of course, if the anonymous defendant wrote their defamatory post from a public, uncontrolled network (think Starbucks) or used a proxy server or other means to disguise their IP address, all this effort might be for naught.
In addition to the practical difficulties of identifying anonymous defamers, there’s a legal hurdle to overcome as well. Various courts have held that the right to anonymous speech is protected to some extent by the First Amendment (something to do with the Federalist Papers). Therefore, in order to unmask the defendant, a plaintiff may need to demonstrate (either at the court’s own insistence or, more often, in response to a motion filed by a defendant who’s been alerted to the third party subpoena by the website or ISP) that they have a plausible defamation case.
What about suing the website?
Given the difficulty (and sometimes impossibility) of identifying the author of a defamatory post, people seeking legal recourse for damage to their online reputation often wish to explore the possibility of holding responsible the website, social media platform or other entity hosting (and often profiting from) the libelous content. Most are disappointed to learn that federal law effectively shields these companies from liability.
Section 230 of the Communications Decency Act (CDA) has an odd history. The CDA was originally a Congressional effort to regulate pornography, and Section 230 was added as a last-minute concession to Internet Service Providers. However, whereas much of the rest of the CDA has since been invalidated as unconstitutional, Section 230 remains and has arguably helped shape the development of the Internet as we know it.
CDA 230 says, simply, that Internet companies (including ISPs, websites, social media platforms, etc.) cannot be treated as the publisher of content provided by someone else (i.e. their users). This has implications for all sort of media-related laws, but Section 230 has been especially vigorously litigated in defamation cases. For the most part, courts have found that the law is unequivocal. Defamation requires publication, and merely hosting another’s content online is by definition not publication under Section 230.
Section 230 has allowed businesses which rely on user-generated content to flourish without needing to police what’s published using their services. It also arguably has a dark side. At its most extreme interpretation, the law permits an online media company to host a damaging publication indefinitely, whether or not they know about it or even encouraged it. There are numerous examples of less-than-scrupulous website operators who directly profit from providing a forum for anonymous reputational attacks. Some even leverage their user-generated defamatory content by charging victims a fee to have the publications removed.
If you’re concerned about something written about you online or if you’ve been sued (or notified of a subpoena seeking your identity) in connection with something you wrote, schedule a free consultation with Knowmad Law, and we’d be happy to discuss your situation.