Online Defamation and Libel

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The State of New York and the United States Federal Government both offer legal protections for the victims of online defamation and libel.  However, there are limitations to these laws, both legally and factually.

“the making of a false state-ment about a person that ‘tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right think-ing persons, and to deprive him [or her] of their friendly intercourse in society.’” Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, cert. denied, 434 U.S. 969 (1977).

The cases in New York further break down defamation into two distinct categories:

• Slander – Defamation through spoken word. 
• Libel – Defamation through written word.

Libel is almost always the type of defamation which occurs on the internet.

Defamation per se describes a situation where the false statement itself is harmful to another.

Defamation per quod describes a situation in which the defamation may not seem harmful itself, but in the context of other information could be harmful to a specific situation. See Ava v. NYP Holding Co., 64 A.D.3d 407, 885 N.Y.S.2d 247 (1st Dep’t 2009).

In order to have a valid case of online defamation and libel in New York, your case must prove 4 essential elements.  These elements are:

1. a false and defamatory statement of fact
2. regarding the plaintiff,
3. which is published to a third party and
4. results in injury to the plaintiff.

As you can see, these requirements eliminate many situations where a victim of online defamation and libel may be injured, but no cause of action exists.

The first requirement is that the statement must be false.  Any true statement, whether harmful or not, does not meet the definition of defamation in New York.

The element of “publishing to a third party” is met if someone posts something about you on the internet.  If you know that the information posted about you is false, you should speak to an attorney about whether or not you have an actionable claim for defamation.

Online forums, comment sections, news articles, social media sites, photo sharing websites, and chat applications are just some examples of the numerous places where communications are published online.

Legally, the United States Government has established a policy of openness and the fair exchange of ideas and information through the internet.  The right to free speech and opinion is often an impediment to establishing online defamation and libel. 

While the right to free speech and liberty protect a wide variety of activities and communication, it does not universally protect all speech and acts.

For example, the most common example of this is that you cannot yell “fire” in a crowded movie theater.  Such speech can cause harm to others and the laws will not protect someone from such speech.  In the same manner, not all speech online is protected, particularly when it causes harm to the person it is directed towards, as discussed in this article.

New York has established some statutory protections for victims of online defamation and libel.  These laws are found in the New York State Consolidated Laws Article 7. 

Article 7 is most commonly known as the “Civil Rights” protections in New York.

While the law was developed prior to the advent of online internet communications, it still provides some guidance on defamation which occurs online. Mostly though, the law provides protections for specific situations to exclude from a defamation cause of action.

Section 74 of the New York Civil Rights law provides that a lawsuit for defamation will not be successful against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”

Similarly, section 75 states, “The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by any legally qualified candidate for public office whose utterances, under rules and regulations of the federal communications commission may not be subject to censorship by such owner, licensee or operator of such visual or sound radio broadcasting station or network of stations, or their agents or employees.”

The defenses available to online defamation and libel are very fact specific, so it is important to know if such facts exist which will result in an unsuccessful lawsuit.As with most legal cases, it is important to know the exceptions and defenses to a claim.  By understanding the defenses you and your attorney can evaluate whether your claim will be successful if brought before a court of law.

Counter-suits for defamation are also very common when there is a back and forth interaction online, so ensure you are aware of your own comments and ensure they themselves don’t meet a cause of action for defamation and libel.  Or if they do, ensure that your statements are protected by one of the following defenses.

The most important defense to defamation (and often the one issue most contested in a defamation cause of action) is truth.  A fully truthful statement cannot be defamation or libel.  No matter whether the statement is harmful to a person, a truthful statement negates any chance of an action for defamation.  Usually though, statements may have some shades of truth to them but may not be 100% accurate.

The courts, however, have found that as long as the statement contains “substantial truth” that does not materially affect the substance or impact of the statement itself.  
An example of this may be the inaccuracy of a certain unimportant fact, such as posting online that a person robbed 10 banks, when really that person robbed 8 banks.  
The substantial truth of the statement is that the person robbed numerous banks.  The mistaken number of banks is not material to the impact of stating online and would therefore not be defamation.

Privilege is also an important defense to defamation claims. In certain instances, people may be given the privilege to make statements and claims that are protected from being defamation.  
One important example of this are statements made by the press regarding political stories.  The courts have found it important to provide immunity to the press to allow them to more freely report information and not to fear a lawsuit every time they state facts or opinions against certain groups.  
While this type of privilege grants a defense against defamation, it may not give complete freedom to make any type of statement.  Only statements made under a qualified position of privilege will be a proper defense.

Opinion is another defense which is often at issue in a defamation case.  A lawsuit for online defamation and libel requires that the published statement be a false statement of fact.

The Bottom Line: Opinions are not facts; they are instead a personal view or judgment which may be based on true facts or based on untrue facts.  There are no false opinions, only false facts.

Retraction of a statement may also be a defense against online defamation and libel.

For example, if someone accused another person of committing a crime against them, when in fact that crime did not happen, it is possible that the person could retract their statements and issue an apology, eliminating the damage to the person.

This defense is not always successful, as it is impossible to completely unring the bell of a statement, but mitigating the effects of a statement or correcting the incorrect facts to set the record straight may allow someone to avoid liability in a defamation case.

A claim for online defamation and libel may be successful at court, but damages must have occured in order for the claimant to be truly victorious.Two types of damages may be found by a court for defamation:

Special damages are exact economic damages that can be calculated.  For example, if someone is a victim of online defamation and as a result loses their job, a court may find the exact economic loss of that person’s lost paycheck and benefits.  Special damages are typically much easier to award, as it is a much easier proved fact.

Non-economic damages are a much trickier type of damages in a defamation case.  Non-economic damages may include emotional distress, anxiety, or loss of reputation.

These damages may certainly have been incurred from a defamed party, however one cannot have those damages replaced or undone.  

Instead, the court will attempt to place a dollar amount on what those non-economic damages are worth.  There is no set way to calculate these damages and often it is left to the opinion of a jury or judge to award such damages.

Tips for Proving Damages: In order to prove both types of damages, it is important to keep track of any financial losses with documentation and witnesses. 

For non-economic losses, it is important to document any visits to doctors offices, keeping track of witnesses who may provide testimony of your loss of reputation, and notes about your emotional state during the traumatic events of your defamation claim.