When Does a Communication Over the Internet Constitute Defamation?

In today’s tech-savvy society, consumers increasingly rely on the Internet to find information concerning businesses, entertainment, sporting events, politicians, and a myriad of other topics. See Kraig J. Marton et. al., Protecting One’s Reputation — How to Clear A Name in A World Where Name Calling Is So Easy, 4 Phoenix L. Rev. 53, 67 (2010) (“More Americans now get their news from the Internet than from old–fashioned newspapers.”). Further, with the mere click of a “post” or “send” button, Internet users have the ability to post all sorts of information to the world at large in a relatively unrestrained environment. See, e.g., Sanders v. Walsh, 219 Cal. App. 4th 855, 863, 162 Cal. Rptr. 3d 188, 195 (Cal. Ct. App. 2013)(“[T]he relative anonymity afforded by the Internet forum promotes a looser, more relaxed communication style.

Users are able to engage freely in informal debate and criticism, leading many to substitute gossip for accurate reporting and often to adopt a provocative, even combative tone. . . . The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that ‘anything goes,’ and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world.” (quoting Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1162–63, 72 Cal. Rptr. 3d 231, 237–38 (Cal. Ct. App. 2008)); Carolyn Kelly MacWilliam, Individual and Corporate Liability for Libel and Slander in Electronic Communications, Including E-mail, Internet and Websites, 3 A.L.R. 153 (6th ed. 2005) (“Computer access enables any individual to send or post electronic communications to individuals, Web sites, and Internet chat rooms basically stating anything that the user pleases.”). 

The public’s strong reliance on the Internet coupled with an “anything goes” structure and the informal nature of social media generates a broad forum for potential defamation liability and presents intriguing questions concerning negative and often disparaging Internet postings. See Indep. News. Inc. v. Brodie, 407 Md. 415, 457–58, 966 A.2d 432, 458 (Md. Ct. App. 2009) (“[T]he ‘anything goes’ mind set, coupled with the virtually unlimited circulation available to bloggers at minimal cost, heightens the danger of injury to the subject of the communication from false or exaggerated statements. [The court] would venture to guess that on the Internet, defamation occurs more frequently and is broadcast to more people than via any other medium, past or present.”). For example, at what point does an Internet posting or online business review turn into an actionable, libelous statement? Not surprisingly, whether liability arises depends on the actual statement itself and the totality of the surrounding circumstances. 

In seeking to tidy an area fraught with judgment calls and inherent uncertainty, this article provides a basic background on Internet defamation law.

As a written form of communication, Internet defamation is considered “libel,” as opposed to “slander.” “Libel is any malicious falsehood expressed by writing, printing, or by signs or pictures, which tends to bring any person into disrepute, contempt or ridicule, or to blacken the memory of one who is dead; or any malicious defamation expressed by writing, printing, or by signs or pictures, which tends to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.” Cent. Ariz. Light & Power Co. v. Akers, 45 Ariz. 526, 535, 46 P.2d 126, 131 (Ariz. 1935); see 53 John R. Kennel et. al., C.J.S. Libel and Slander, Injurious Falsehood § 3 (2010) (same). Conversely, slander is “the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those [that are libel].” Restatement (First) of Torts § 568(2) (1938). Generally, it is easier for a person to recover for libel than for slander because “the written word leaves a more permanent blot on one’s reputation,” “the written word is capable of wider circulation than that which is communicated orally,” and “reducing a defamation to writing evidences greater deliberation and intention on the party of the one who records it.” Spence v. Funk, 396 A.2d 967, 970 (Del. 1978).

To succeed on a claim for Internet defamation, a plaintiff must prove the same general elements as other forms of libel. See, e.g., Marton et. al., supra, at 60 (“Generally, courts have, and should, treat Internet defamation the same as defamatory statements published in other mediums.”); Alyssa J. Long, Internet Defamation, 73 Tex. B.J. 202, 203 (2010) (“[T]he law of Internet defamation is no different from for other types of potentially defamatory communication.”). 

Accordingly, the plaintiff must prove: 1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication to a third party; 3) fault by the defendant amounting at least to negligence if not malice or reckless disregard on part of the publisher; and 4) either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication. Restatement (Second) of Torts § 558 (1977) (hereinafter “Restatement”); see, e.g., Peagler v. Phx. News., Inc., 114 Ariz. 309, 315, 560 P.2d 1216, 1222 (1977); WFAA TV-Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); U.S. Mission Corp. v. KIRO TV, Inc., 172 Wash. App. 767, 772, 292 P.3d 137, 141 (Wash. Ct. App. 2013).

Consequently, comments that are no more than “rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense have all been accorded constitutional protection.” Summit Bank v. Rogers, 206 Cal. App. 4th 669, 698–700, 142 Cal. Rptr. 3d 40, 62–63 (Cal. Ct. App. 2012) (citations omitted); see, e.g., Toledo Heart Surgeons, Inc. v. Toledo Hosp., 154 Ohio App. 3d 694, 798 N.E.2d 694 (Ohio Ct. App. 2003) (reasoning that an ordinary Internet user is attuned to a blend of exaggeration and hyperbole in the expression of opinions within the context of the Internet). Additionally, parody, ridicule, vituperation, and verbal abuse are usually not considered actionable defamatory statements. See, e.g., Victoria Square, LLC v. Glastonbury Citizen, 49 Conn. Supp. 452, 454–55, 891 A.2d 142, 144 (Conn. Super. Ct. 2006) (“Defamation is, by its nature, mutually exclusive of parody.”); Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. 2007) (holding that statements by a water conditioning business that its water would “attract women,” “cure severe facial disfigurement,” and “raise a low intelligence quotient to the level of a rocket scientist” were non-actionable parody). 

One of the common arguments against defamation is that the allegedly defamatory statement was asserting non-actionable “opinion” rather than actionable “fact.” See, e.g., Hammer v. Trendl, 2003 WL 21466686, *3 (E.D.N.Y. 2003) (“It is well settled that a statement of pure opinion is not actionable.”). “Because an allegedly defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability.” Sanders, 219 Cal. App. 4th at 864, 162 Cal. Rptr. 3d at 195–96. This does not mean statements of opinion enjoy “blanket protection.” Id. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. Id. Moreover, simply stating that a factual assertion is an opinion does not make it so. Milkovich, 497 U.S. at 19. 

Determining whether a particular communication is an actionable statement of fact can be difficult, and “what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole.” Summit Bank, 206 Cal. App. 4th at 698–700, 142 Cal. Rptr. 3d at 62–63 (quoting Gregory v. McDonnell Douglas Corp., 131 Cal. Rptr. 641, 552 P.2d 425 (Cal. 1976)). To that end, courts use a “totality of the circumstances test” and will “put itself in the place of an average reader and determine the natural and probable effect of the statement, considering both the language and the context.” Sanders, 219 Cal. App. 4th at 862–63, 162 Cal. Rptr. 3d at 195; Summit Bank, 206 Cal. App. 4th at 698–700, 142 Cal. Rptr. 3d at 62–63 (quoting ComputerXpress, Inc. v. Jackson,93 Cal. App. 4th 993, 1011, 113 Cal. Rptr. 2d 625, 641 (Cal. Ct. App. 2001)); see, e.g., Balzaga v. Fox News Network, LLC, 173 Cal. App. 4th 1325, 1338, 93 Cal. Rptr. 3d 782, 793 (Cal. Ct. App. 2009) (noting that when reviewing an allegedly defamatory meaning, the context in which the statement was made must be considered). The determinative question is not whether a statement is fact or opinion, but “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” Sanders, 219 Cal. App. 4th at 864, 162 Cal. Rptr. 3d at 195–96. 

Importantly, an omission of information can constitute Internet defamation if a plaintiff can prove the communication left a false impression that would be contradicted by the inclusion of omitted facts. Gilbert, 147 Cal. App. 4th at 27, 53 Cal. Rptr. 3d at 764. In Gwire v. Blumberg, a defendant posted incomplete information on a consumer-awareness web site concerning litigation involving the plaintiff by quoting from complaints filed against the plaintiff without noting the plaintiff had prevailed in several cases and that two cases were in small claims court. 2013 WL 5493399 (Cal. Ct. App. Oct. 3, 2013). The court reasoned by “omitting the litigation’s forum and outcome, [the defendant] ‘allowed readers to assume the worst.’” Id. (quoting Wilbanks v. Wolk, 121 Cal. App. 4th 883, 903, 17 Cal. Rptr. 3d 497, 510 (Cal. Ct. App. 2004)). Moreover, the court noted the defendant “sought to develop credibility with his audience as to these factual assertions by relying on evidence—in the form of unverified complaints—to support his comments.” Id. The defendant stated he performed a “search” for lawsuits and characterized his post as a “summary” to “help other innocent people,” which suggested he had “specialized knowledge” about the plaintiff. Id. Accordingly, because the circumstances suggested the post could reasonably have been perceived as containing actionable assertions of fact, the court held the complaint stated a valid claim for defamation. Id.  

Finally, whether a challenged statement conveys the requisite factual imputation is ordinarily a question of law for the court. Sanders, 219 Cal. App. 4th at 862–63, 162 Cal. Rptr. 3d at 195. After the court determines a statement is reasonably susceptible to a defamatory interpretation, it becomes a question for the trier of fact as to whether or not it was so understood. Id. ; see, e.g., Monique C.M. Leahy, Cause of Action for Internet Defamation, 32 Causes of Action 281, § 9 (2d ed. 2014) (“As a general rule, whether a statement is defamatory or not is a question for the jury to answer.”); Hayes Microcomp. Prods., Inc. v. Franza, 268 Ga. App. 340, 601 S.E.2d 824 (Ga. Ct. App. 2004) (holding that, as a general rule, whether a statement is defamatory or not is a question for the jury to answer).

To determine the meaning of words, courts look at the “natural and probable effect on the mind of the average [listener].” Yetman v. English, 168 Ariz. 71, 77, 811 P.2d 323, 329 (Ariz. 1991) (en banc) (citing Phx. News., Inc. v. Church, 103 Ariz. 582, 587, 447 P.2d 840, 845 (Ariz. 1968)). To determine whether a communication is defamatory, a court will review the communication as a whole and in context. Phx. News., Inc. v. Choisser, 82 Ariz. 271, 276, 312 P.2d 150, 153 (Ariz. 1957). The process used to determine whether a communication is defamatory is different than determining whether a plaintiff can ultimately recover damages as no actual harm is necessary to make a communication defamatory. Restatement § 559, cmt. d.

If the plaintiff is a private person, her burden will be mere negligence, i.e., a “reasonable person” would not have published the defamatory statement. See Restatement § 580B (When the target of the statement is a private person, liability will attach if the publisher “acts negligently in failing to ascertain them.”).

If the plaintiff is a public official or a public figure, or if the statement is made on a privileged occasion, the degree of fault is “actual malice.” See, e.g., Klein & Assocs. Political Relations v. Port Arthur Indep. Sch. Dist., 92 S.W.3d 889, 897 (Tex. Ct. App. 2002); Lewis v. Oliver, 178 Ariz. 330, 337, 873 P.2d 668, 675 (Ariz. Ct. App. 1993). A party proving actual malice must show that the party publishing the statement had knowledge of its falsity or acted with reckless disregard of the statement’s falsity. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S. Ct. 710, 725 (1964). 

As is true with defamation in other media, a defendant in an Internet defamation action will not be liable if: 1) the statement is true; 2) the statement is privileged; 3) the statement was the result of a mistake or negligence or was consented to; or 4) there is a lack of proof. See, e.g., Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (Ariz. 1984) (en banc); Read v. Phx. News., Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (Ariz. 1991) (en banc).

While the elements remain the same, defamation over the Internet is acutely different from defamation through other media and provides new legal hurdles to overcome. See Marton et al., supra, at 60 (noting four new issues with Internet defamation: 1) anonymous communication; 2) difficulties when establishing jurisdiction over the statement’s author; 3) the Communications Decency Act insulates the owners of websites from liability for defamation; and 4) the use of alternative legal theories to remedy reputations).

The mode and extent of a publication are particularly noteworthy in the Internet context. Such communication is instantaneous, seamless, interactive, blunt, borderless, and far-reaching. See Marton et. al., supra, at 60 (“Unlike traditional mediums, however, the Internet enables the publishers of statements to broadcast their messages to much wider audiences, usually at no cost.”). The Internet’s impersonal and anonymous nature can create a greater risk that defamatory remarks are believed. “Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation.” Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 863–64 (2000) (citations omitted). 

Indeed, one potentially fatal barrier is ascertaining the person hiding behind the veil of anonymity. See Erik P. Lewis, Unmasking “Anon12345”: Applying an Appropriate Standard When Private Citizens Seek the Identity of Anonymous Internet Defamation Defendants, 2009 U. Ill. L. Rev. 947, 948 (2009)(noting that “[o]nce posted [online, defamatory] speech is readily available for the online world to read, but in many cases the speaker is nothing more than an anonymous username”). In Arizona, to compel production of an anonymous Internet speaker’s identity, the requesting party must show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request; (2) the requesting party’s cause of action could survive a motion for summary judgment on elements not dependent on the speaker’s identity; and (3) a balancing of the parties’ competing interests favors disclosure. Mobilisa, Inc. v. Doe, 217 Ariz. 103, 112, 170 P.3d 712, 721 (Ariz. Ct. App. 2007).

The informal, seemingly un-regulated nature of the Internet often leads Internet users to believe their statements will be lost in cyberspace, immune from defamation liability. However, this misguided perception is far from the truth. See Leahy, supra, at § 1 (“Defamation occurring over the Internet on websites, in emails, on bulletin boards, or even during chats in chat rooms may be actionable.”); McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006) (holding that as a general rule, anonymous speakers should not be able to use the Internet to freely defame individuals). The following cases provide examples of defamation occurring over the Internet.

Claiming in a website posting that an individual has been convicted of a felony, committed felonious acts and dishonorably discharged from the military can constitute actionable defamation. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (E.D. Va. 2005).

To be sure, the allegedly defamatory statements must be statements of fact that are capable and likely of a defamatory meaning. See Doe v. Cahill, 884 A.2d 451, 33 Media Rep. (BNA) 2441 (Del. 2005) (holding that an Internet posting referring to a “Mr. Cahill” as “Mr. Gahill” did not constitute a defamatory statement because using a different first letter of a name was as likely a typographical error as an intended insult and no reasonable person would have interpreted the statement to indicate that the plaintiff had an extra-marital same-sex affair); Kim v. IAC/InterActive Corp., 2008 WL 3906427, *5 (Cal. Ct. App. Aug. 26, 2008) (holding that “worse dentist,” “don’t go there,” and “do not use this dentist” were not actionable statements because they were “value-laden opinions”).

An e-mail will be libelous per se if it attacks the integrity and moral character of a public official. See Kiesau v. Bantz, 686 N.W.2d 164 (Iowa 2004) (holding that an altered photograph of a deputy sheriff, standing with her K-9 dog in front of her sheriff’s vehicle, in uniform, with her breasts exposed, could be reasonably understood to attack the integrity and moral character of the deputy sheriff). Notably, if a statement is defamatory per se, the plaintiff need not prove actual damages to his or her reputation in order to recover. See Eberhardt v. Morgan Stanley Dean Witter Trust FSB,2001 WL 111024 (N.D. Ill. Feb. 2, 2001).

Sending e-mails to third parties that a plaintiff was “pretty unstable” and “being investigated for harassment and sexual stuff,” coupled with postings on Internet websites catered to homosexuals that the plaintiff was a homosexual desiring homosexual relations constituted an actionable claim for defamation. Scott v. LeClercq, 136 S.W.3d 183 (Mo. Ct. App. 2004). In Scott, the court awarded the plaintiff $100,000 in actual damages and $50,000 in punitive damages. Id.

In Massachusetts, the defendants created a Facebook page claiming that a car dealership fired their sister because she had cancer. Clay Corp. v. Colter, 30 Mass. L. Rprt. 536, 2012 WL 6928132, *1–*3 (Mass. Super. Ct. Sept. 12, 2012). The Facebook page also claimed the dealership had fired other cancer patients in the past and had discriminated against employees with cancer. Id. At a preliminary injunction hearing, the court reasoned the defendants had no factual basis for making the claims and that the dealership had demonstrated a reasonable likelihood of success on its defamation claim. Id. at *6. Thus, the court ordered an attachment of $1.5 million against the defendants’ assets. Id. ; see Miss Universe L.P. v. Monnin, 952 F. Supp. 2d 591 (S.D.N.Y. 2013) (awarding $5 million to the Miss Universe organization after a past participant posted on Facebook that the competition was rigged and that the finalists were determined before the judging even began).

In addition to the traditional defamation cause of action, plaintiffs may be able to sue for other torts including invasion of privacy, intentional interference, or intentional infliction of emotional distress.

In summary, regardless of the medium in which a publisher disseminates defamatory information, a plaintiff must plead and prove the traditional elements of defamation to prevail. Internet defamation is a new and intriguing area of the law as information is communicated over the Internet in enormous volumes at historical speeds.