This post continues a series dealing with the legal issues that bloggers should be thinking about. This post covers defamation issues, and will explore your options when somebody has posted something false and damaging about you, including some common defenses.
Consider the following scenarios: You’re out surfing the internet one day and come across a false and damaging statement that someone has written about you on their blog or website. Maybe you’re the one writing a scathing review about a new hit movie, including unsavory stories about its lead actress. Or maybe you wrote a glowing review but someone else leaves a libelous comment to your post. In all of these situations, you’ll want to be aware of your rights and obligations under defamation law. Don’t think so? Check out this recent case where a blogger was sued for defamation by a Chinese game developer for his critical review of their product.
What is defamation?
Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves spoken defamatory statements. Libel involves the making of defamatory statements in a printed or fixed medium, such as a newspaper, book or blog.
Defamation laws vary from state to state. Oregon has the following laws:
31.200 Liability of radio or television station personnel for defamation. (1) The owner, licensee or operator of a radio or television broadcasting station, and the agents or employees of the owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in a radio or television broadcast, by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator, agent or employee failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.(2) In no event shall any owner, licensee or operator of a radio or television broadcasting station, or any agent or employee thereof, be liable for any damages for any defamatory statement published or uttered by one other than such owner, licensee, operator, agent or employee, in or as part of a radio or television broadcast by any candidate for public office, which broadcast cannot be censored by reason of federal statute or regulations of the Federal Communications Commission. [Formerly 30.150]
31.205 Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical. Except as provided in ORS 31.210, in an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff may recover any general and special damages which, by competent evidence, the plaintiff can prove to have suffered as a direct and proximate result of the publication of the defamatory statement. [Formerly 30.155]
31.210 When general damages allowed. (1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless:
(a) A correction or retraction is demanded but not published as provided in ORS 31.215; or
(b) The plaintiff proves by a preponderance of the evidence that the defendant actually intended to defame the plaintiff.
(2) Where the plaintiff is entitled to recover general damages, the publication of a correction or retraction may be considered in mitigation of damages. [Formerly 30.160]
31.215 Publication of correction or retraction upon demand. (1) The demand for correction or retraction shall be in writing, signed by the defamed person or the attorney of the person and be delivered to the publisher of the defamatory statement, either personally, by registered mail or by certified mail with return receipt at the publisher’s place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. The demand may also refer to the sources from which the true facts may be ascertained with accuracy.
(2) The publisher of the defamatory statement shall have not more than two weeks after receipt of the demand for correction or retraction in which to investigate the demand; and, after making such investigation, the publisher shall publish the correction or retraction in:
(a) The first issue thereafter published, in the case of newspapers, magazines or other printed periodicals.
(b) The first broadcast or telecast thereafter made, in the case of radio or television stations.
(c) The first public exhibition thereafter made, in the case of motion picture theaters.
(3) The correction or retraction shall consist of a statement by the publisher substantially to the effect that the defamatory statements previously made are not factually supported and that the publisher regrets the original publication thereof.
(4) The correction or retraction shall be published in substantially as conspicuous a manner as the defamatory statement. [Formerly 30.165]
31.220 Effect of publication of correction or retraction prior to demand. A correction or retraction published prior to notice of demand therefor shall have the same effect as a correction or retraction after demand, if the requirements of ORS 31.215 (2), (3) and (4) are substantially complied with. [Formerly 30.170]
31.225 Publisher’s defenses and privileges not affected. Nothing in ORS 31.205 to 31.220 shall be deemed to affect any defense or privilege which the publisher may possess by virtue of existing law.
Oregon’s retraction statutes provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement according to the prescribed guidelines. The publisher has two weeks after receiving a demand for retraction to investigate the demand and determine whether to publish a correction or retraction. The retraction must appear in the first issue published, or first broadcast made, after the expiration of the two-week deadline. The content of the retraction should substantially state that the defamatory statements previously made are not factually supported, and that the publisher regrets their original publication. Finally, the correction or retraction must be published in substantially as conspicuous manner as was the defamatory statement. Oregon courts have held that the retraction statute does not violate the Oregon constitution and that it applies only to publishers and broadcasters, and not to individual defendants whose statements happened to be published or broadcast.
The statutes conspicuously leave out defamatory statements made on the internet. Therefore, the statutes are to be amended in 2009 to stipulate that noneconomic damages may be awarded against the host or operator of a website for a defamatory statement published on the site only if a demand for correction or retraction is made and the host or operator does not publish a correction or retraction. Few courts have addressed retraction statutes with regard to online publications like blogs, but a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board.
What about defamatory statements that someone else makes in my comments?
The ability to comment on a blog is one of the key features of the blogosphere. Usually it promotes interactivity and civil discourse. Of course, sometimes a comment will include defamatory statements. Generally, anyone who repeats someone else’s statements is just as responsible for the defamatory content as the original speaker if they knew, or had reason to know, of the defamation. That seemingly would put a very large burden on bloggers to carefully monitor and censor comments. Fortunately, the Communications Decency Act, Section 230 provides a strong protection against liability for Internet “intermediaries” who provide or republish speech by others.
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
Oregon House Bill 2389 provides that a host or operator of a website is not liable for a defamatory statement published on the site by another person unless the host or operator failed to exercise due care to prevent publication of the defamatory statement.
Are there any defenses to defamation?
Truth is an absolute defense to a defamation claim. Defamation law does not prevent someone from publishing true information about you, no matter how damaging (although you might have a different cause of action).
Opinions are not considered defamatory. But make sure you’re actually stating an opinion and not asserting a statement of fact. To determine whether a statement is an opinion, courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are more likely to be opinions or hyperbole. For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.
Public vs. Private
A private figure claiming defamation – your neighbor, your mom, the cute girl who works at the bar down the street – only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement. On the other hand, a public figure must show “actual malice” – that you published with either knowledge of falsity or in reckless disregard for the truth. This is a much more difficult standard for a plaintiff to meet. A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. So a statement that is defamatory when made about your neighbor might not be defamatory if made about the lead actress in a new box office hit.
Once you’ve concluded that someone has made a defamatory statement about you, what next? Consider consulting an attorney to discuss your options. But know that there are some very good reasons why actions for defamation may not be a good idea. First, a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. The media may cover the initial filing of a lawsuit and all the gory, illicity details of the complaint, but not follow through to the case’s ultimate resolution. The net effect could be that large numbers of people hear the false allegations but never learn how the litigation was resolved.
Second, damage awards in defamation lawsuits tend to be small. The fees expended in litigating even a successful defamation action can exceed the total recovery. There’s often a substantial price to pay to clear your name in the court of law.
If you’re interested in learning more about this topic, check the Electronic Frontier Foundation’s FAQ on Online Defamation Law.
Next up in the series will be anonymity. It will discuss what you should know about blogging anonymously and keeping your identity secret, including the duty of your internet service provider to protect your identifying information.
See related: Copyright and Trademark Issues for Blogs