Defending yourself against internet libel

The law of defamation does apply to the Internet, although it is harder to apply for various reasons. First, you have the difficulty of probably having to tracking down the real identity of an anonymous blogger, which just became more difficult, legally. Then you must make sure the law where you can get the case heard is amenable to the claim. Then you have to decide if you want the hassle of a court case. The following questions will help you decide what your best options are: What is Libel? I Believe I Have Been Libeled Online, What Should I Do Next? Can I Sue a Blog? What Evidence Do I Need to Sue? What Are the Defenses to Internet Libel? Are There Better Options Than Suing?

With a new blog being created every second and those admitting they visit a blog daily in the tens of millions in the U.S., and undoubtedly in the hundreds of millions worldwide, of course there are bound to be a few problems. This article addresses the question of what a person should do when the worst-case scenario materializes – that of being falsely accused of some bad act and the false claim getting spread across the Internet.

The law of defamation does apply to the Internet, although it is harder to apply for various reasons. First, you have the difficulty of probably having to tracking down the real identity of an anonymous blogger, which just became more difficult, legally. Then you must make sure the law where you can get the case heard is amenable to the claim. Then you have to decide if you want the hassle of a court case. The following questions will help you decide what your best options are: What is Libel? I Believe I Have Been Libeled Online, What Should I Do Next? Can I Sue a Blog? What Evidence Do I Need to Sue? What Are the Defenses to Internet Libel? Are There Better Options Than Suing?

What is Libel?
A few basic facts will illuminate libel. First, libel is the written form of the law of defamation, so a false comments about someone, typed and posted on a blog, would be an example. But bear in mind, when dealing with the Internet, that with the modern trend towards making videos, a person can also easily be defamed by Internet slander, which is spoken defamation

Generally, defamation is the publication, or spreading of a false fact, regarding another, without privilege, through carelessness or malice, harming the subject.

To prove Internet libel, you need,
1) a publication to at least another person outside the subject;
2) a false fact;
3) understood as [a] being of and about plaintiff; and [b] harming the plaintiff’s reputation.
4) For a “public figure,” actual malice necessary. To successfully sue for Internet Libel, these elements must be proved.

I Believe I Have Been Libeled Online, What Should I Do Next?
This is an extremely fact dependent question. A number of issues need to be addressed by you or your legal counsel, if one has been retained. The first is to put aside feelings of being wronged, and look at the facts of the purported defamation. Asking a friend to help pick through the issue might be a good idea, if a lawyer has not been consulted.


Questions to ask: Are you a “Public Figure”? Does the statement violate one of the classic four slander per se categories (regarding false claims about professional reputation, loathsome diseases, unchastity, or crimes of moral turpitude.)? What is the exact statement you feel is libelous, and does the statement violate the previously listed definition of defamation? Is it portrayed as a fact, or opinion? Are you sure it is libel & not simply an insult? Where is the site hosted, and does the location have a law to help you? Is the poster known, or anonymous?

Can I Sue a Blog?
The question of whether a blog can be sued has several answers. First, the courts have consistently ruled that blog owners are held harmless, even when their blogs contain libelous material. In the recent Pennsylvania case “DiMeo v. Max,” May 2006, the court ruled that the pre-emption clause of Section 230 of the Communications Decency Act protects blog owners from defamation.


But, a person who posts upon a blog is fair game for a lawsuit, should they commit clear defamation of a private person.

What Evidence Do I Need to Sue?
Many of those who attack others, online, do so anonymously, which goes without saying, since it reduces the risk of any retribution. The standard for discovering the identity of an anonymous online writer has recently changed. Previously, all a person needed to find who anonymously posted disputed information, was for the plaintiff to convince the court they were operating in “Good Faith.” But the court realized this low threshold was being abused by persons who were simply trying to find the identity of their secret critics so they could intimidate them into removing the material, without any showing that the posted claims were false.


But this Good Faith standard changed in a recent key case, “John Doe Number 1 v. John Cahill,” in October 2006, decided for the defendant at the Delaware Supreme Court. The court voided the low level of proof Good Faith standard and also said it was consciously skipping a mid-level standard to embrace the most exacting level of initial proof, the Summary Judgment standard.


Now, plaintiffs must pass the Summary Judgment rule, meaning that they must prove to the court that they have the evidence that would stand up for a court case deciding the matter of online defamation. This means the evidence will be shown to like pass the previously mentioned four-part definition of defamation, and includes a demand for presentation of all supposedly libelous quotes.


Beyond this, the plaintiff must signal their intention to go to court by making a good-faith effort to contact the person & let them know their intention of suing. For a blog, this would probably be satisfied by posting a statement to that effect in the very same blog space where the harm occurred.


Then, when the court contacts the blog to turn over the accused blogger’s IP address, the Internet Service Provider (ISP) for the accused must alert him or her of the request, so they can decide if they want to try to block the release of their identity.

What Are the Defenses to Internet Libel?
There are six potential defenses of Internet libel:

1. Truth;

2. Fair comments on a matter of public interest, relegated to “opinion,” not false facts.

3. Privilege. Privilege may be absolute or conditional.

4. Consent.

5. Innocent dissemination.

6. Plaintiff's previous poor reputation.

Kelly O'Connell, IBLS Editorial Department