Your Internet Posts Can Get You Sued For Defamation

Foreword 

 I started posting on this WordPress site a year ago this month–102 posts and 296 approved comments in the first year.  Thanks to the readers and commenters for making this a great experience.

As circumstance would have it, the inaugural article for the second year is about the medium as opposed to a Petaluma story.

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MEMO TO: Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc.

 

From time to time, I have written about the use of the various forms of “new media” or “social media” –Blogs, Forums, Facebook, Twitter, etc.  The number of articles finally reached the point where I decided to create a new archive category–Legal & Personal Dangers–The Internet & New Media World

To date, I have tended to focus on certain privacy issues and what, to me, was a certain lack of decorum and civility in much of what is posted on the various social media outlets on the Web. I also touched briefly on liability issues for those posting comments or articles on the Internet.

Throughout this series, I tended to pull my punches, as I “know” that I am just “old & grumpy” and hence, my opinions are suspect.  However, I recently came across a book written by someone who is definitely not in the “old & grumpy” category, Amy Alkon. Two lines from her book really struck me and I share them here with her express permission…

There’s a meanness, a hostile self-centeredness, that’s overtaken our society since around the turn of the millennium…

Technology isn’t to blame.  It just allows rudeness to be spread farther, faster and to a wider audience.

 “I SEE RUDE PEOPLE: One woman’s battle to beat some manners into impolite society” by Amy Alkon (pages 4 & 6)

It was refreshing, if not invigorating, to read Alkon’s exploits in “fighting back” against the various forms of “rude behavior” that technology now spreads at the speed of light.

I caution practitioners of societal rudeness on the Internet that they may meet up with someone more formidable than the larger than life Amy Alkon–i.e.,  process-servers or police officers with arrest warrants.

In other words, instead of–or in addition to–being a chapter in her next book or the subject of one of her columns or blogs, they could end up in court paying lawyers to defend their words…

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I.

Anonymity is an illusion…induced by the glowing pixels on

your

screen

Manners and rudeness notwithstanding, individuals can get into serious legal trouble with posts on any of the social media outlets attacking or criticizing individuals, institutions, or corporations if the subjects of the posts believe they have been libeled. Some posters may learn hard lessons about the arcane elements of “tortious interference with business expectancy” and/or trade libel.

Therefore, you had better know what you are doing.  Moreover, even if you do, you still may encounter lawyers…or prosecutors, if there is a question of a crime caused by your posts.

In the online world, you have the ability to exercise your right to free speech on any number of news websites that permit blogs or public postings to news stories, online forums or other message boards. However…there is no absolute right to say or write anything you want without risking litigation or other consequences…

See Internet-Libel vs. Free Speech

As a general caution, I remind everyone to be generally aware of copyright laws as well as the general rules of libel when posting on the Internet…

  • It is one thing to dump on a public figure or public official, but the legal standards are quite different when it comes to private individuals or businesses.
  • If you don’t understand the difference, perhaps you should learn something about New York Times vs. Sullivan. (1)
  • Finally, be aware of SLAPP –as in “slap you down”– suits (2)

Above all, please keep in mind that posting under a screen name will not protect you.

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II.

Anonymity’s cloak may be pierced by subpoena…

or a properly issued search warrant.

…It also may be lifted by the site administrator…

There is a raging controversy in Ohio over the recent disclosure of the identity of a regular poster to the Cleveland Plain Dealer’s web site.

Several posts had been made on the paper’s web site commenting on pending criminal cases.  They were traced, via the e-mail address used to register with the newspaper, to the e-mail account of the judge hearing the cases. Now there is a legal question as to whether this information should have been revealed by the newspaper and the Judge is suing the newspaper for $50 Million. (Click HERE  and HERE(3)   (For an update on how this particular case was resolved, Click Here.)

The more likely means of determining the identity of a poster is through the legal system by subpoena, discovery, or a properly issued search warrant. At this point, you will have to hire a lawyer to defend your words in court.

One commentator on NPR’s “On the Media” program suggested that everyone should have defamation coverage before posting on the various social media sites on the Internet. I think that this is perhaps a bit extreme and frankly, the cost of the insurance is not insignificant. It should also be noted that even with insurance, there is always the question of whether or not a particular publication is covered by the policy.

Given the sheer volume of postings on the Internet, it is my opinion that posts that cross the line will be ignored unless and until they become nearly viral.  But there is no question that anyone can be sued…at any time. (4) 

There are three articles I can recommend as a starting point for everyone who sends e-mails, blogs, or posts on the various social media sites…

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III.

Independent Journalists

Due to changes in the traditional media world (newspapers & television news), there is an increase in the number of professional journalists going it alone–freelancing. In addition, there is the rise of the so-called “citizen journalist” enabled and empowered by the tools provided by the Internet.

These freelancers or citizen journalists may post on their own sites or blogs or on Internet news sites.

Of course, all of the legal constraints apply to them–and they don’t have the resources of a company legal department to back them up.

This situation is discussed in some detail by Alan Mutter in…

I encourage the “new” journalists to read Mutter’s articles. Remember what usually happens to messengers–they used to risk getting shot…today, they risk getting sued. I suppose that is progress of a kind.

As a sign of our times, take note of the following…

  • As a partial answer to the risks of going it alone as a journalist, one organization has set up a legal defense fund
  • In addition, the California Media Workers Guild has created a Freelancers Unit. (6)

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In Closing…

  • You Can Be Sued For Your Internet Posts…
  • Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc. should continue to exercise the right of free speech…
  • But be aware of the legal environment in which you operate. (7)

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NOTES

  • (1) The most famous case on libel insofar as journalism is concerned is New York Times v. Sullivan.  In that case, the U.S. Supreme Court held that public figures and public officials could not sue for traditional libel unless they could prove “actual malice” on the part of the person who created the alleged libel.  The reasoning was that public figures or public officials, being public, had to have thicker skins. Of course, this does not mean that they could not still initiate litigation, but the newspapers have legal departments and the money to defend.
  • (2) SLAPP Suit (Strategic Lawsuit Against Public Participation)–Litigation to shut down public comment and Internet postings.  Even though they may be without merit, they cost money to defend.  For more information, run a search on the Internet.  
  • (3) One aspect of this case that is not (as of yet) drawing that much attention is the allegation that some of the anonymous comments on pending litigation came from a computer at the courthouse.
  • (4) While I initially saw a place for anonymous posts, I am now opposed to them. I believe they encourage bad behavior on the part of some people. Some of this behavior, in my opinion, crosses the line into legal “actual malice” when it comes to public figures and officials. Here is an interesting article about anonymous posts: How to Identify Anonymous Bloggers  Also see Podcast: Rexxfield repairs online reputations
  • (5) While running a search, I happened to notice an advertisement for a law firm specializing in online defamation.
  • (6) Freelancers Unit 07 May 2009 California Media Workers
    The California Media Workers Guild voted last summer to form the freelancers unit, the first of its kind that is connected to a local office of The Newspaper Guild, which is part of Communications Workers of America. We intend to build a unit that uses the power of numbers to directly support the needs of independent writers and journalists in all media, including hundreds of workers laid off by Northern California media outlets this year. We also hope to build solidarity between staff journalists and freelancers. To contact us: freelance@mediaworkers.org
  • (7) While this article has focused on the use of the Internet by private individuals. freelancers, and citizen journalists, there is also the question of the use of social media by elected officials under their own name or under a screen name.  See Villa Park Council Weighs Member’s Facebook Post: Free Speech or Too Inflammatory? 
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11 thoughts on “Your Internet Posts Can Get You Sued For Defamation

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  2. You are right about being sued and it becomes a tangled mess when you consider the multiplicity of jurisdictions and laws you could be exposed to.

    Freedom of speech isn’t absolute and is to be balanced against the right to reputation under international human rights law.

    However, as you point out the reality is that for practical purposes it is usually well resourced interests that bring suits against those who cannot afford to defend them.

    • Excellent point about the myriad of potential laws and jurisdictions in which an action may be brought–it is not just a conflict of laws question in the US.

      What is odd for me is that I thought I would have reached some level of personal resolution as I was putting this article together. I did not.

      Thus, I am still left with the feeling that it is “Blog or post at your own risk!” One person suggested in an e-mail that the lesson from all of this is: “…it does teach one not to have an opinion.” I think that is an overreaction, but I understand it.

  3. Anonymous free speech is a wonderful privilege and should be preserved at all costs, however like all good things is subject to abuse.
    In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistle blowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.

    Benefits notwithstanding, you can’t make an omelette without breaking eggs and anonymous free speech on the Internet is one such omelette. There is no such thing as free speech; there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. However, often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people; in fact they are actually fueled by other people’s pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience….. is simply impossible.

    Let’s cut to the chase here, if a farmer has his livestock destroyed and his barns and fields burned by a vandal, not many people would struggle with the assertion that his livelihood has been utterly decimated. However, if Ms. Cohen, who relies on her reputation to obtain new, and keep existing modeling contracts in the fashion industry comes under attack in the way she has, most people that have not experienced this firsthand will probably dismiss her anguish and complaints as petty and not worthy of the legal system or our sympathies. Yet, in practice her livelihood may have suffered even more damage. At least the farmer can grow new corn and raise new cows.

    Respectfully submitted,
    Michael Roberts.
    Internet libel victim’s advocate
    http://www.Rexxfield.com

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  9. very interesting… esp the bit about the judge who was revealed and is sueing the newpaper… indeed, what is our world coming to when journalists are sued for revealing information in the public interest! Great article, thankyou.

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