The basic principles of defamation are the same on the internet.
First, what is defamation? Injury to reputation — both libel and slander. The elements are statement (opinions not actionable; inducement and innuendo count); publication (repetition counts; distribution without knowledge doesn’t); “of or concerning” (identify plaintiff by name or colloquium, or by group or entity); injury to reputation (per se or per quod).
For public figures, there are two more elements — falsity and actual malice. These come from NY Times v. Sullivan. “Actual malice” means that the statement is made with actual knowledge of falsehood or with reckless disregard as to the truth or falsity of the statement.
Q: Are well-known bloggers public figures? A: It’s a fact-specific inquiry, so it’s hard to generalize. But some people are public figures for a limited purpose, so that might apply.
Defenses to defamation include truth, consent, privilege, and, in California, the anti-SLAPP procedure. One privilege is to accurately report on a government proceeding or the contents of documents distributed by the government.
Q: Should bloggers get journalists’ privileges? A: We’ll find out, but the distinction will probably turn out not to matter.
Q: Can consent be implied? A: I don’t know of any cases offhand. Don’t quote me. [Heh.]
Q: What about retraction statutes? Wisconsin or somebody said the retraction statute didn’t apply online. There’s a bar journal article on this. Nimmer: The Georgia supreme court says publication covers online activities.
Mitigating factors include retraction and anger.
Damages include money damages for emotional suffering and damge to reputation and actual pecuniary loss.
Inunctive relief is disfavored. That would be a prior restraint, and it doesn’t survive strict scrutiny. There’s usually an adequate remedy at law and doesn’t require equity. It’s hard to enforce, too, but may be available in partcularly egregious cases.
Q: What about defamation of a company? A: Nothing’s different. Q: But could a company ever be defamed per se? A: Well, they don’t have a loathsome disease. Usually. But you could say they had committed crimes or were dishonest in their business. Q: But what about a corporate blogger bashing a competitor’s products? A: That’s an opinion, and opinions aren’t actionable. Q: Say I’m the GC of a company with a corporate blog. Do I have to be concerned about blog defamation of competitors? A: Yes. Expressions of opinion are OK, but saying that another company is engaging in crimes could be defamation, if it’s false.
Q: In the context of blogging, injunctions may be granted in order to take down the information. A: If it’s deemed defamatory, it’s not a prior restraint to enjoin that particular statement.
Immunity under section 230 of the Communications Decency Act. In 1996, Congress changed the way liability can be allocated online. It immunizes providers of interactive computer services form liability for third-party content.
The first appellate case on the scope of the CDA was Zeran v. AOL. AOL was found immune from liability for defamatory statements posted anonymously on AOL’s bulletin boards.
The need for immunity before the CDA was recognized when Proiugy was held liable for defamatory postings after monitoring their bulletin boards in Stratton Oakmont v. Prodigy, a New York state trial court decision.
[He goes through some other cases.]
Q: What about comments on blogs? A: All of the precedents point to yes. We’ve yet to see any cases where a blogger is found liable for comments poster.
Q: If you see it and leave it there, aren’t you a secondary publisher? A: That’s exactly what the CDA was trying to prevent.
Q: What if the person being defamed pleads their case in detail before you? A: ISPs can stay out of it if they want.
Q: Section 230 of the CDA and section 512 of the DMCA are aimed at the same problem, but they take opposite approaches as to the encouragement of monitoring. A: The Batzel case talks about it. It would be nice to be able to send a notice to the ISP and get stuff taken down right away. [I sputter something about prior restraints.]
Q: What’s the prevailing approach internationally? A: I don’t know, but I think Britain has a CDA section 230-like law. Member of the audience: There’s no similar law in Australia.
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