Welcome to Defamation Law Radio. Internet defamation of character is as easy to perpetuate as a blog post, Facebook update, rating submission, or a forum comment. Your online reputation is measured by the websites return as Google search results. Do you know what people are saying and writing about you? Has someone posted a defamatory statement about you on the internet?
Welcome to Defamation Law Radio. My name is Internet Law Attorney Enrico Schaefer. My law firm specializes in internet defamation claims litigation both in representing plaintiffs who have been the subject of a defamatory statement and also defendants who’ve been accused of defamation of character. Typically, our law firm specializes in defamation that occurs on the internet. That is, blog posts, websites, review sites, these types of things where people provide information and communication about a variety of things, including other people and other companies.
Previously, we’ve had shows that dealt with the issue of what is a defamatory statement and what is publication. Today, I want to talk about the third element of defamation, the third general element of defamation under most state defamation law. The third element that any plaintiff who files a claim or lawsuit alleging defamation on the internet. The third thing they’re going to have to prove is that the defendant knew or should have known that the statement that they made, the alleged defamatory statement, was false.
Proving a false statement is probably the most challenging aspect of proving defamation, and the reason is, because, number one, is a statement a statement of fact or statement of opinion? This is a threshold issue that every plaintiff who is contemplating having their attorney send a threat letter to a defendant alleging defamation needs to deal with. If it is a statement of opinion, then it typically is not actionable. So, what’s a fact and what’s an opinion? Most defamation lawyers will explain it this way.
If something is provable as true or false, then it is more likely a statement of fact. If something is not provable as true or false, then it is more likely a statement of opinion. Opinions are typically not defamatory. So, let’s give you a concrete example.
If I say, as the defamation defendant, or the alleged defamation defendant, if I say, about the plaintiff, that they were at the bar on Tuesday night and got in a fist fight and went to jail as a result of that fist fight. Well, that’s either true or false. I can prove that either happened, or it didn’t. There is a time component, a place component. There are specific actions that are provable as true or false. If it turns out that, in fact, the plaintiff wasn’t at the bar, did not get in a fight and did not go to jail, then that is a potentially defamatory statement. Then, under defamation law, that claim is going to at least meet the element of a false statement of fact.
Now, let’s say that the plaintiff, in fact, was at the bar and did get in a fight but did not go to jail. Well, that’s, still, the fact that I said that the plaintiff went to jail as the alleged person who’s defamed someone else’s character. If I say that they went to jail and, in fact, they didn’t, then it’s provable as true or false. Therefore, again, is a worthwhile of analysis in terms of whether or not there might be an action for defamation which could support defamation litigation or at least a defamation threat letter.
Now, what is a statement of opinion? If I say I was at the bar the other night with the plaintiff, and I saw them interacting with a group of people, and thought they were rude, that the plaintiff was a jerk. Well, whether or not someone is rude, and whether or not someone is a jerk, is not a statement which can be proven as true or false. Maybe in the plaintiff’s mind they are not jerk, but it is not provable as true or false. Therefore, it is a statement of opinion and is not actionable under defamation law.
In many instances, defamation is occurring on the internet. People are writing things on the internet about third persons that may or may not be true. Internet defamation is a little bit more complex in a variety of ways, and it’s much more prolific. There is a lot more commentary going up on the internet where people are reviewing or rating third parties, making comments on blogs, sharing their life story, and posting onto Facebook. Defamation on Facebook is a very common thing. Defamation on Twitter is a very common thing.
So, let’s talk a little bit more about proving that a communication is not only false, but that defendant knew or should have known that the communication is false. So, what is the standard for known or should have known? Typically, in most states, it’s similar to a negligence standard. If I write on the internet “I saw plaintiff at the bar on Friday, and they got into a fight and went to jail” but I was in Minnesota and had no reason to know whether or not they were at the bar on Friday night, then that would be very negligent of me to publish that when I have no reason to know that it’s true. If, on the other hand, I read on another website, that plaintiff was at the bar, that got in a fight and gone to jail, and I republished those statements, then the question is going to be, well, if I read it somewhere else, was I negligent in repeating it on my website? And that’s probably going to be a fact issue, and it’s probably going to come down to what was this other website that I read it on? Was it reputable? Was it a newspaper website where you know information is vetted? Or was it a spammy website where people are constantly being defamed and false information abounds? These are the types of things that are going to come into play.
The other aspect of this third element, which is really important, is how false is false, you know. The test of whether or not a defamatory statement is true or false really has a lot of gray area. Because rarely are statements 110% true, Okay? Sometimes, they’re shades of gray. So, even if a statement is not literally is true, but is, overall, the substance of it is true, that it’s substantially true, okay, that whatever inaccuracies are minor, then the defendant is still going to be able to prove that, in fact, the statement was not a false statement, that the statement was a true statement. So, just because a little bit of the statement is false, doesn’t mean that I’m going to be able to meet this burden as a defamation plaintiff suing for defamation of character, that I’m going to be able to meet this element.
Let me give an example, let’s go back to the bar example. If, in fact, I say that the plaintiff went to a bar, got in a fight and went to jail, and it turns out that the plaintiff did get in a fight and go to jail but was at the mall not the bar, well, the fact that, you know, that’s provable as true or false, they weren’t at the bar, but the substance, the overall substance of my statement, is still true, and that minor technical detail, that minor technical falsity, isn’t going to help me as a defamation plaintiff, and my attorney should tell me that is not going to be colorable as a claim.
So, that’s all for today, we’ve now covered all three general elements of defamation. It has to be a defamatory statement, it has to be published to third parties, and it has to be a statement which the speaker or publisher of the statement knew or should have known was false at the time that they made the statement.
We’ll see you next on Defamation Law Radio. This is Defamation Attorney Enrico Schaefer signing off.
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