In the world of Social Media, Forums, and Review Boards, it is very easy for people to post comments and opinions about their experiences with a certain business. In fact, consumers today rely on review boards to make decisions about whether they will chose to go with a certain business or use a product. However, at what point are comments left by people considered defamatory in content, abusive, and outright bullying? Courts have been very careful not to step on constitutional rights of individuals. Jo Glanville, editor of the Index on Censorship, stated that “the Internet has been a revolution for censorship as much as for free speech” (Source: Glanville, Jo (17 November 2008). “The big business of net censorship”. The Guardian (London). Retrieved 26 March 2014). But is our right to freedom of speech shadowed by the need to protect an individual, company, or entity form online defamation? How do courts define Defamation?
Defamation is defined as a defamatory statement, of or concerning an individual, which is published to a 3rd party, and causes damages to a Plaintiff’s reputation. Mere insults and opinions, “John Doe is a Jerk” do not qualify as defamation. The Defamatory statement must be an alleged statement of some fact, ” John Doe is a thief because he is stealing money from his employer “. The key here is that the statement must be such that a reasonable person hearing or reading the statement would know that the reference made is about John Doe. Third, this statement must be published to a 3rd party, i.e. internet forum, blog, or an article in a news paper etc. It is important to note, that the primary publishers of the defamatory statement will be liable as well as any secondary publishers , so long as they knew or should have known that the statement was defamatory. Lastly, there must be actual damages (unless its defamation per se , comments made about a person’s business dealings, crimes of moral turpitude, a woman’s chastity, and having a loathsome disease, in which case damages are presumed). Truth is a defense that can be used in defamation cases, however for the sake of this argument, we are strictly discussing FALSE defamatory statements.
So what happens when an anonymous poster, goes and leaves false defamatory content all over the internet as a malicious act? How about when a disgruntled competitor of a business, chooses to leave false negative reviews on forums, in order to hurt their competition? Where is the fine line drawn? In some cases, an individual can email websites, and blogs, and ask for the negative content to be removed. However, most sites will not remove the content, or release the identity of the individual unless there is a court issued subpoena. On one hand, you can understand that the sites are protecting the free speeach rights of the poster. However, how about the rights of the individual that is being defamed?
In Hadeed Carpet Cleaning v. Does, Yelp Inc. the Virginia Courts ruled that Yelp must reveal the identity of anonymous posters that had left negative defamatory content for a business. The right to be able to have an opinion is constitutional. However, the courts held that “there is no constitutional value in false statements of facts and that defamatory speech is not entitled to constitutional protection.” This was a huge win as far as defining the fine line between defamation and free speech .
More recently ,the Texas Supreme Court ruled in Kinney v. Barnes that a court can order an individual to delete a defamatory internet posting, but cannot stop him from reposting the same statements elsewhere. Since a permanent injunction to restrict future posts would be deemed as unconstitutional, the court’s award of damages to the victim is the right way to deter any future defamation.
As our world continues to change, some laws of the past will also need to be modified. The area of online defamation law is changing daily and as more courts set precedents in their rulings, we can only hope that the changes still allow people to voice their opinions, as long as they are 100% clear of the repercussions of posting false defamatory statements. Lets hope that the laws continue to improve so that online bullying, reviews posted to intentionally hurt businesses, and individuals are all met with equal consequences. Only then will people begin to be mindful of what they post. If you have been a victim of online Defamation, reach out to an attorney and evaluate your options, bearing in mind that the statute of limitations in California is one year from the date of the first posting (see California Code of Civil Procedure 340 (c) ).