You sleep in one morning and wake up to find 30 messages on your phone. Rubbing the sleep from your eyes, you grope for an explanation. It is not your birthday, and there are no reports of terror attacks on your newsfeed. When you open the first message, though, you discover that it is your reputation that’s attacked: “Did you see the awful things they are saying about you on the internet?” friends and family members write.
What has happened to you is that you have become a victim of online defamation of character.
The legal term for getting one’s reputation dragged through the mud is “defamation of character.” Verbal defamation is known as slander. When defamation comes in written form, it is known as libel. In the era of the Internet, it is scarily simple for someone you do or don’t know to go online and cause lasting harm to your reputation. I have ample experience in online defamation cases. Below, I will tackle two big issues: What is online defamation of character and what can you do about it?
For a statement to qualify as online defamation, it must first of all be false. The truth is an absolute defense against online defamation. A factual statement is protected by law no matter how unflattering it may be or how much grief may cause you. If you are unable to find employment or to sell your business because someone online called you an ax murderer, there’s nothing you can do about it if you actually split someone’s head with an ax.
Resemblance To Real Persons
A defamatory statement must also clearly identify you as the target. It is to avoid defamation suits that film credits include the usual disclaimer:
“All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.”
The defamatory statement also has to be “published”—that is seen or heard by at least one other person beside you and the author. Finally, and most significantly, the statement has to have caused you real harm, either in your business or personal life. Proving harm can be the biggest hurdle in online defamation cases.
The framers of the constitution made it hard to pursue defamation cases. The First Amendment states that Congress shall make no law, “abridging the freedom of speech, or of the press.”
Courts have also put up barriers to defamation of character suits, especially for public figures—say politicians or celebrities. Well-known people not only have to prove that a statement was false and harmful, but they must also show the person made the statement with “reckless disregard for the truth” or “actual malice.”
Regulations governing the Internet add another layer of difficulty for online defamation suits. With the emergence of the web in the 1990s, regulators had to make a momentous decision about how much legal liability search engines, websites, message boards and blog hosting services had for the content they carried. If the law treated these Internet service providers like traditional publishers, say newspapers or magazines, they could face legal liability for defamatory statements appearing online.
If on the other hand, if the law treated Internet sites more like distributors, comparable to newsstands or bookstores, then they could not be sued. The politicians opted for openness, and as a consequence Section 230 of the Communications Decency Act (the “CDA’) treats Internet platforms more like distributors. The CDA has kept the Internet wide open for the exchange of information and opinion. However, that openness has come at the cost of hurting tens of thousands of people, ranging from businesses damaged by unjust product reviews to average Joes and Josephines who have been flamed by a blogger with a grudge.
The “Skank Blogger “
If you want to understand some of the difficult judgment calls that go into a defamation case, consider one of the most famous internet defamation battles, Cohen v. Google. The saga started in 2008 when Liskula Cohen, a successful New York City model, found herself the object of vicious attacks by an anonymous blogger. The posts featured photos of Cohen along with captions describing her as “skank,” “skanky,” “ho,” not to mention, a “psychotic, lying, whoring . . . . skank.” Cohen went to court to out the anonymous attacker, who posted on Blogger.com, which is owned by Google.
The blogger petitioned the court to preserve her anonymity, arguing that the words “skank” and “ho” were used in a “loose hyperbolic” manner. Those insults have become “a popular form of ‘trash talk’ ubiquitous across the Internet as well as network television and should be treated no differently than ‘jerk’ or any other form of loose and vague insults that the Constitution protects,” the blogger maintained. Blogs “have evolved as the modern day soapbox for one’s personal opinions,” the blogger argued. The insults about Cohen were obviously not intended as objective statements of fact, the blogger said, and a savvy online audience would clearly not view them as such.
The Supreme Court disagreed with the blogger, however. Consulting the American Heritage Dictionary, the court found “skank” defined as “one who is disgustingly foul or filthy and often considered sexually promiscuous.” The court similarly looked at the definition of ”ho,” which is slang for a “prostitute.”
The court ruled that the defamatory intent of those words was underscored by the context in which they appeared in the blog, set alongside sexually provocative photos of Cohen. In such a setting, calling Cohen a “skank” or “ho” wasn’t analogous to calling her a jerk, the court decided It was far worse and clearly defamatory. So the court order Google to give Cohen the name of the so-called “Skank Blogger.” It turned out the blogger was a casual acquaintance of Cohen’s. Cohen decided in the end against suing her harasser, but the blogger then turned around threatened to sue Google for $15 million for outing her. Nothing ever came of that, however.
Cohen’s case reveals an important lesson about what legal tactics work when fighting defamation. Often, an online defamation victim’s best recourse is suing to obtain the identities of anonymous perpetrators by subpoenaing ISPs.
The Law And Its Limits
Trying to use the police and criminal law to fight defamation is fraught with problems, according to a paper by the Fordham Center on Law and Information Policy. “When victims contact local law enforcement for help, it seems that they are rarely taken seriously,” the Fordham paper said. “Many law enforcement personnel face limited resources and lack technical expertise. Issues with state jurisdiction also make successful prosecution difficult, as victim and perpetrator are often in different states, if not different countries. While there are state laws for harassment and defamation, few cases have resulted in successful prosecution.”
However, when you retain legal counsel, many times you can find out valuable information about the identity of the individual who may be doing the online defamation of character campaign against you. That information you may use to remove the information from Google, take to law enforcement and pursue a lawsuit against the individual.
If you want to fight online defamation, time is of the essence. Many states have statutes of limitations which limit the window of opportunity for a lawsuit. The first date of publication of the allegedly defamatory material is typically when the clock starts ticking on the deadline to file a lawsuit. That is why it is crucial to look for qualified assistance as soon as possible.
One vital, but often overlooked step, is preserving evidence, in case the author moves quickly to remove or conceal the defamatory post. It is best to maintain the evidence in electronic form, with a screenshot, PDF printout, or a screen video.
Consequences Of Internet Defamation: The $11.3 Million Verdict
In some cases, internet defamation has resulted in significant jury verdicts. In 2006, Sue Scheff, a Florida woman who runs a service offering information and resources to parents of young people with behavioral problems, won an $11.3 million award from a Florida jury in an online defamation suit.
The conflict started when Scheff began getting attacked on an internet site dealing with services troubled teens. She was called a “crook,” a “con artist” and a “fraud.” Scheff went to court against her antagonist, a woman named Carey Bock. Brock was unhappy after seeking and Scheff’s assistance, which led her to post the allegations. A jury set the amount of the large award and Scheff went on to write a book about the case.
Defamation Of Character On Facebook
In a more recent case, a man was awarded $25,000 in damages by a Wisconsin Circuit Court after being attacked on Facebook by someone he’d never even met. John Beckett created a bogus Facebook account using the name and photo of his victim, Stephen Laughland. Beckett then filled the page with scathing comments about Laughland that were falsely attributed to Laughland himself, Wisconsin courts found. “It is nice being a loser and taking advantage of banks and credit card companies,” one of the entries on the false page said. “I am not sure why more people have not caught onto the fact that I am a low life manipulative person.”
The Court found that Beckett defamed Laughland in an attempt to win favor with Laughland’s ex-girlfriend because of an ongoing child custody battle between the two. Laughland sued Beckett. Beckett presented multiple arguments in his defense, saying the statements were substantially true and also fell within the bounds of opinion protected by the First Amendment.
Wisconsin courts saw it differently and ruled against Beckett. An appellate court noted that calling Laughland a “low life loser” might have qualified as opinion, but that Beckett crossed a line by making specific false statements that Laughland had defrauded banks, manipulated banks and credit card companies and engaged in “underhanded” business practices. The Milwaukee County Circuit Judge assessed $15,000 of general damages and another $10,000 of punitive damages. “There was one and only one motivation for this,” the circuit judge wrote, noting Beckett’s effort to woo Laughland’s ex-girlfriend. That was “an attempt to impress her and an attempt to run down in her eyes Mr. Laughland. You put all of that together and you’ve got the ill will, you’ve got the malice, you’ve got the defamatory statements, et cetera.”
Cyberbullying And Doxing
Besides online defamation, there are other forms of abuse on the Internet that you may need legal help coping. “Cyberbullying” is a growing problem for young people who endure electronic harassment in a connected age. A study suggested that there are links between cyberbullying and depression and poor academic performance. Another form of internet abuse is “doxing,” revealing private records about someone online. Doxing is a tactic that can be used to extort or simply embarrass a target and often leads to court battles
If you think you might have suffered online defamation or another form of abuse on the internet, don’t hesitate to call the Internet attorneys at the law firm of Meyers Roman Friedberg & Lewis, LPA to discuss your matter further. The firm has vast experience in cases of online defamation and will talk to you about your situation with empathy. Fill out this form, or contact Attorney Aaron Minc at (216) 831-0042.
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Source: Aaron Minc