If you have ever been defamed or accused of or actually defamed another on the Internet – you will understand the need to know more about online defamation - preferably before you ‘need’ to. Here are some of my favourite findings when I was defamed (in my opinion) in November 2009.
Defamation Laws & the Internet
The Electronic Frontiers Australia site has a great section on Defamation Laws and the Internet.
The following snippets of wisdom are adapted from information available on the EFA site and links to additional information may lead you to the EFA site or other sites of authority recommended by EFA.
Defamers Are Not ‘Safe’ Just Because They Are In A Different Country
- Defamation laws in Australia (as well as other countries) enable a defamation action to be brought under their laws if material was published in their jurisdiction. This means that persons who publish/distribute material on the Internet may find themselves facing defamation action under the laws of a country other than their country of residence.
Australian Bloggers Are Protected by American Nasties
Disclaimer:
Okay, if you are an American blogger who has said the wrong thing, beware if you attack an Aussie….If you are an Aussie, then you have protection against those American nasties…If you are an American blogger who has never defamed anybody knowingly, I don’t mean to offend – just merely making an example of the laws of your country and how the laws of another country, Australia in this example, do not offer you protection if you do the wrong thing.
- In relation to material published on the Internet, there have been a few Australian court decisions to date addressing where or when material made available via the Internet is “published”. Hence, a plaintiff may choose to commence a defamation action in the State or Territory with laws most favourable to the plaintiff’s case, that is, irrespective of the location of the server/system used to make the material accessible or the location of the defendant/s or plaintiff.
- Court rulings on the Internet – for example one in Australia and the other in the USA – demonstrate that Judges reach different decisions, depending in which jurisdiction they sit, even when the cases before them are very similar.
- In Australia, for instance, the High Court ruled that in defamation cases, an article posted on the Internet is considered to be published at the location of the reader and not of the publisher. See Dow Jones & Company Inc v Gutnick [2002] HCA 56. Check out the references at the end of the case notes for fantastic resources relied upon by the winning side.
- A publisher must demonstrate that they have grounds to make an application to the court to stay the proceedings on the basis of “forum non-conveniens” (this involves showing that the jurisdiction in which the proceedings have been been instituted is “clearly inappropriate”). To show this in an Australian court, the defendant must “satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious” to the defendant (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197).
Electronic Frontier Foundation
Another great site for legal advice specifically aimed at bloggers is Electronic Frontier Foundation.
The Bloggers’ FAQ on Online Defamation Law provides a good overview of defamation (libel) law.
My favourite extracts include:
- …When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se:
- A statement that falsely charges any person with crime, or with having been indicted, convicted, or punished for crime; or tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits.
- …Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff…who demands and receives a retraction, is limited to getting “special damages”—the specific monetary losses caused by the libelous speech.
- If you get a reasonable retraction request, it may help you to comply. The retraction must be “substantially as conspicuous” as the original alleged defamation.
Mr Abbott’s site summarises a lot of information about defamation, with some Minnesota examples.
Extracts of some of my favourite quotes include:
- A statement is defamatory if it “tends to injure the plaintiff’s reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation.”
- Defamatory statements must be communicated to a third party…
- … a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false… if it [defendant] “knew or should have known in the exercise of reasonable care” that the defamatory statement was false….that is, liability arising from failure to take due care.
- The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. However, the test is not the author’s mere characterization of the statement as “opinion.”
- A statement is an opinion when… (1) the statement addresses matters of public concern; (2) the statement expressed in a manner that is not provably true or false; and (3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.
- …Practical Methods of Reducing Liability for Defamation…Due Diligence…Investigate the Facts…Even basic investigations can go a long way towards reducing defamation liability. Publishing material as “fact” without doing any investigation by itself might amount to reckless disregard for the truth… you should do enough to satisfy yourself that the facts alleged are probably true in your reasonable judgment.
- … Retain Records of Your Investigation. In order to defeat a claim of recklessness, it is extremely helpful to document the facts and procedures of the investigation. The main way of doing that is to preserve the notes, records, and other material related to an investigation…Keep the records until the statute of limitations on defamation runs out.
- …Confirm the Identity of the Subject of Your Article. Many defamation problems may be headed off by calling the subject of the article for confirmation or denial… Certainly you can claim a good faith effort to determine the truth if you contact the subject.
- …Avoid Conclusory Language. Report facts, not conclusions…For example, suppose a public official has committed several acts which tend to show that they might be dishonest. DO NOT REPORT that the public official is “dishonest” without qualification. Even though that might be a reasonable conclusion based on the facts, it is not a fact itself.
- … Retain Records of Your Investigation. In order to defeat a claim of recklessness, it is extremely helpful to document the facts and procedures of the investigation. The main way of doing that is to preserve the notes, records, and other material related to an investigation…Keep the records until the statute of limitations on defamation runs out.
Cyber-Bullying
Cyber-bullying is when unsavoury and cowardly individuals use the Internet to publish text and possibly even images intended to damage another individual’s reputation and cause mental and emotional anguish – anywhere from mild embarrassment to full-on emotional breakdown.
Cyber-bullies may also resort to sending text messages and emails to get their nasty and false accusations out there. If somebody is going to judge you falsely and put it on the Internet where it is generally permanent – unless you take steps – then they are a cyber-bully and they are engaging in cyber-bullying.
You might be a victim of cyber-bullying when you try and engage in business on the web, your children might become victims when their school peers decide to crucify them publicly, and sometimes it might just be a case of mistaken identity, flaming or random trolling.
The Urban Dictionary sums up trolling the best:
Being a prick on the internet because you can. Typically unleashing one or more cynical or sarcastic remarks on an innocent by-stander, because it’s the internet and, hey, you can.
Take action against cyberbullying by adhering to Internet safety measures and be in control of defamatory acts online.
Defamation on YouTube
Finally, two great videos on YouTube to start you off if you are interested in defending yourself against someone who has defamed you or your site or if you are protecting yourself from doing the wrong thing in the future ‘inadvertently’.
If you believe you have already defamed somebody, accidentally or purposefully, whether you have been identified as doing the wrong thing or not, then these videos may be a wake-up call.
Videos by Dozier Internet Law – Visit their site http://www.cybertriallawyer.com/
Dozier Internet Law (Part One) on Online Defamation
Dozier Internet Law (Part Two) on Online Defamation
{ 3 comments… read them below or add one }
This is the information I’m looking for, this is timely because I experience to to be defamed over the internet. Thanks for sharing this thought.
.-= Ca Mortgage´s last blog ..Los Angeles Ca Homes – Los Angeles Ca Foreclosures- Los Angeles Homes- Los Angeles Foreclosures =-.
It’s so hard to get back your reputation online, there’s just no accountability for these sites, and once data is up their it doesn’t go away.
You are right to some extent. As soon as their is Data online care has to be taken that the Information is correct and does not break any ones Privacy Violations and vice versa.