Defamation (pronounced defecation) is a subset of tort law that deals with damage to the reputation of others through the utterance or publication of false statements.
Originates from Roman law, where people would frequently make songs accusing their political opponents of being pederasts (all of them were true).
If any person has sung or composed against another person a song such as was causing slander or insult to another, he shall be clubbed to death.
Slander vs. Libel
Traditionally, slander and libel were two separate torts. Slander dealt with spoken untruths and libel with written untruths. By and large, this distinction has disappeared in American law, with most jurisdictions now favoring a unified "defamation" cause of action.
However, this in no way impedes internet lawyers from pointing out the difference, as though it means they automatically win:
- Mediacrat: Dude, you're a fucking furry.
- RealAdrian: OMG LIBEL!
- Mediacrat: HAHA you moron SLANDER IS SPOKEN AND LIBEL IS WRITTEN! You lose, retard!
- RealAdrian: FURSECUTION!
Elements of the Tort
Meanwhile, back IRL, the elements of defamation are essentially the same whether it's written or spoken:
- Defendant made a statement of fact
- which is false (misleading or unsubstantiated in fact) ,
- to at least one other person
- reasonably identifying the plaintiff,
- is defamatory,
- and causes damage to the plaintiff and their reputation.
The plaintiff must prove each and every element of the tort to whatever standard of proof is required (in the U.S., this is generally a "preponderance of the evidence"). This means, among other things, that
- statements of opinion are not defamation
- true statements of fact are not defamation
- unless the statement is defamatory per se, a rapidly shrinking category, statements which do not cause actual, quantifiable damage are not actionable defamation
- statements which are made only to the plaintiff are not defamation
The requirement that a statement be "defamatory" is a specific one: it must be "injurious to a person's good name or reputation", and not, for example, merely mean or unflattering.
Defamation per se
Certain false statements are held to be defamatory per se; thus, the plaintiff need not show actual damages. The two most common categories of defamation per se were accusations of criminal activity and of homosexuality. However, homosexuality fell out of favor in most jurisdictions, and disappeared as defamatory per se when all U.S. sodomy laws were overturned in Lawrence v. Texas in 2003. Thus, in most jurisdictions, only accusations of criminal activity remain defamatory per se. Note: the plaintiff still must prove all of the other elements except for damages. Thus "I think Rachelle Waterman had her mother whacked" would still not be defamation because it's a) an opinion and b) probably true.
Another example would be a mixture of statements of fact and opinion. For example, if someone said (or wrote) "Hans Reiser is a wife-murdering slime, he's pond scum," in that the claim of "wife-murdering" would be a statement of fact, while "slime" and "pond scum" would be an opinion. The difference is that a statement of fact can be proven true or false, while an opinion cannot be proven either way. In this case, one would have to prove the statement true to defeat a claim of defamation. In this case, one could point to Reiser's conviction for killing his wife and the fact in exchange for a reduced sentence he lead police to her burial site, as evidence of the truthfulness of the statement. As to the term "slime" it is obvious no one is claiming he is literally is bacteria, and it is obvious that no one would believe he is literally the rancid material on the bottom of a pond, and the use of both terms is obviously therefore an opinion. Further, since the killing of one's spouse is usually considered in bad form, even if it was a statement of fact and probably untrue, would probably not lower his reputation and thus would not be defamatory.
The lack of lowering one's reputation is also critical to the issue of claiming a lack of defamation. For example, if a man was telling a fish story, and claimed to have caught one (extending his hands a meter wide), while one of his friends says to everyone else, "no, more likely it was this wide" (extending his thumb and forefinger two centimeters apart), even if the other man brings out a fish that actually is 100 centimeters in length, the statement by the other person would not be defamatory, even though it was wrong, because the claim the guy was lying about the size of the fish could not defame him. (People are so used to fishermen overstating the size of fish that it would be reasonable to discount unproven claims.)
Defamation and the Internets
None of this, of course, stops defamation from being everybody's favorite accusation on the Internets. Somebody called you fat, or posted a fatty picture of you? Sue 'em! Somebody made your head pop out of goatse? Sue 'em! Invariably, every online argument will end either with an accusation of defamation or copyright infringement, or by someone invoking Godwin's Law.
Defamation and Online Service Providers
So why aren't Internet service providers like LiveJournal more worried about defamation? After all, they certainly take copyright infringement seriously enough. You'd think LJ Abuse would perma-ban everyone who says anything vaguely nasty about another user, but in actuality service providers are shielded by two important pieces of law.
First, while publishers in general can be held vicariously liable for defamatory statements they publish, under a U.S. Supreme Court case called New York Times v. Sullivan, they can generally only be held so liable on a showing of "actual malice". Generally, this means that the plaintiff must, in addition to the elements needed to establish defamation, prove that the publisher knew or reasonably should have known the statements were false, or acted with reckless disregard as to whether they were false. In the context of online publishers, this pretty much kills any shot at liability, since they do not monitor, edit, or approve the content published by their users.
If that wasn't good enough, a U.S. statute, the Communications Decency Act, 47 U.S.C. §230(c)(1), expressly stated that Internet service providers and web fora are not "publishers" or "speakers" for purposes of secondary liability. Thus they can't be held secondarily liable even if the plaintiff showed "actual malice". Basically, they are almost never responsible for the "speech" of their users.
- In a nutshell.
- Republicans (they master this "art")
- Chris Stone a.k.a. Stickydrama faps to libel
- "Web sites that publish inflammatory information written by other parties cannot be sued for libel"
- neener neener, take that!
|Featured article February 14, 2005|
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