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Defamation and Slander on the Internet

As social networking sites and Internet blogs continue to increase in popularity and usage, the opportunities for defamatory and slanderous actions increase commensurately. Libel, sometimes called “defamation of character”, is words spoken or written that falsely and negatively reflect a living person’s reputation. Slander is usually spoken defamation, while “defamation” is written. Blogs or social networks in which defamatory statements are written or recorded present several potential sources of liability and recovery for the person whose character has been defamed. In cases where defamation is proven, damages are presumed and often enforced liberally.

Blog operators are generally released from liability for defamatory statements posted on their websites, so long as they have not contributed to the posting. In 2003, the Ninth Circuit Court of Appeals ruled that a mailing list moderator and website operator who allegedly posted defamatory statements provided by a third party was eligible for immunity under the Communications Decency. Act (CDA). Batzel v. Smith, 2003 US App.LEXIS 12736 (9th Cir. 2003). However, if the online service provider takes an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the application of the Communications Decency Act (CDA) safe harbor. The defendant in this case operated a matchmaking website called matchmaker.com. As part of its service, the defendant collected profiles of single people based on a detailed questionnaire. The plaintiff sued Metrosplash because of a fake profile of her that an unknown user had posted on the website. The court found that in creating the detailed questionnaire, Metrosplash had played an active role in developing the information that had been published. Additionally, the court ruled that Metrosplash was an information content provider and therefore not eligible for the CDA’s safe harbor granted to “interactive computer services”. Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) CD Cal. 2002) (subsequently reversed by the Court of Appeal). While operators of blogs and services are generally immune from this liability, the more active the service is with its members, the greater the likelihood of potential liability as a publisher of defamatory material.

Another potential source of liability is the person who actually posted the defamatory material. As with more general defamatory statements or materials, a poster can be held personally liable for anything posted that falsely and negatively reflects a living person’s reputation. The publication of false and explicit statements about a person will generally be considered defamatory for the purposes of liability. However, other issues arise regarding the anonymity of the person posting the information and, if known, the jurisdiction to which it is subject.

Jurisdictional issues can arise in situations where the poster had no reason to expect the effect of the poster to be felt in a certain jurisdiction. However, in defamation cases, jurisdictional disputes are largely resolved in favor of the victim. In Griffis v. Luban, the Minnesota Court of Appeals ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. The defendant repeatedly posted messages on an Internet newsgroup attacking the plaintiff’s professional credentials. Plaintiff originally obtained a default judgment of $25,000.00 in Alabama, which she sought to enforce in Minnesota. The Minnesota court ruled that the Alabama court properly exercised its jurisdiction because the effects of the messages were felt in Alabama and the defendant should have expected to be sued there. An important factor in the decision was that she had actual knowledge of the effect of the defamatory statements on the defendant. Therefore, the Minnesota court executed the default judgment of $25,000.00. Griffis c. Luban, 633 NW 2d 548 (Minn Ct. App. 2001).

However, there are cases where courts have refused to allow the exercise of personal jurisdiction on the basis of defamatory statements. In a Pennsylvania case, the court declined to exercise jurisdiction over a New York defendant who posted defamatory comments about a defendant on an offshore betting website. The court held that since the comments did not specifically target Pennsylvania, the court could not exercise personal jurisdiction over the defendant. English Sports Betting, Inc. v. Tostigan, CA No. 01-2202 (ED Pa. 2002).

The problems with defamation actions based on Internet postings lie largely in proving that the defendant actually published the posting. If that link can be made, a much stronger case can be presented and the jurisdictional issues can be resolved. A lawyer experienced in cyber law and Internet business can improve your chances of winning in such a case. Without the help of a lawyer who can find and connect the evidence, most Internet defamation cases will fail due to lack of evidence sources and experience.

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