Defamation Law FAQ: International & Internet Issues
Which English-speaking countries have the most plaintiff-friendly defamation laws?
Commonwealth countries — like The United Kingdom, Australia and Canada — are widely considered to have the most plaintiff-friendly defamation laws. As such, they’ve fielded their fair share of “libel tourism” cases — meaning residents of other jurisdictions find tenuous, but legal, links to their preferred jurisdiction, and then file the case there. All that, however, may change soon, as the UK is currently in the midst of updating their libel laws; one of the goals is to reduce the number of libel tourism cases filed in their country.
I’m a U.S. citizen who has lost a defamation lawsuit in Canada or the UK; do I have to pay it?
In 2010 the SPEECH Act was passed. In short, the SPEECH Act protects American citizens from having to remit damages in slander and libel cases filed in foreign jurisdictions that don’t have equivalent free speech protections as the United States.
I’m a business owner who has been given a terrible online review by a disgruntled customer; can I sue for defamation?
Yelp! TripAdvisor and other online review websites cause a great deal of heartache for small business owners. Over the past several years, due to the growth of review sites, the number of Internet defamation lawsuits has increased.
In these types of cases, if the reviewer only gives their opinion or a truthful retelling of their experience, it’s difficult for the business owner to win a defamation suit. However, if the reviewer exaggerates or lies in their review (which could include leaving out pertinent information), a strong argument for defamation is present.
What happens if someone publishes something true, but deeply personal, about me? Can I sue them for defamation?
In order for a statement to be considered defamatory in the United States, the comment in question must be a “false statement of fact.” However, If another individual distributes information about you that is true, but personal, you do have options. A lawyer will help determine the best tort to usein your claim, but some common legal tort that can also be argued for cases of this nature is false light.
Is It Illegal To Link To Defamatory Content?
United States legal precedence makes it clear that in some situations you can be held liable for linking to defamatory content — especially if the surrounding context on your site discusses the material. While there are ways to defend against cyber defamation claims involving hyperlinks, it’s best to play it safe and avoid linking to material that may be libelous.
What Are Some Common Defenses For Defamation?
If you’re sued for libel, you’ll have to mount a defense. If you hire an attorney, they’ll most likely craft a cogent argument on your behalf; if you’re representing yourself, here are a few defense options:
- Truth — Since Andrew Hamilton secured a win for Peter Zenger in 1733, truth has been recognized as a defense for defamation. The plaintiff must submit evidence that your statement is provably false; so in order to win, you must be able to disprove their points.
- Not Negligent — Whether the plaintiff is a public or private figure, some form of negligence must be demonstrated in order to win a defamation suit. If the movant is a public figure, they’ll need to prove malice; if private, then they’ll only need to successfully argue that a reasonable person would not have posted the information in question. As such, if there is evidence that the defendant engaged in proper fact-checking, a judge or jury may determine that while the statement may be false, the author’s intent was not malicious, as they believed the statement to be true.
- Technicalities — Check the statute of limitations in your jurisdiction. You may be able to successfully argue yourself out of trouble on a technicality.
- Not Damaging — Under United States defamation law, a statement is not considered defamatory unless it causes harm. If you, as the defendant, can prove that your statements did not cause the plaintiff any harm, that should get you off the hook in many cases. However, in some jurisdictions, there are certain accusations that are considered inherently harmful; in legalese, these types of statements are called per se.
- Reasonable Comment — Satire and parody are not illegal, which means obviously hyperbolic statements are often not considered defamatory. Take, for example, the famous case of Falwell v. Flynt — the lawsuit immortalized in “The People vs. Larry Flynt.” In that now famous defamation lawsuit, Falwell argued that a salacious advertisement — in which he, his mother and an outhouse were featured — was defamatory. After many trials, though, the Supreme Court of the land came down with a different verdict: the accusations were so outrageous, the average person wouldn’t believe it anyway.
- CDA Section 230 –If you’re being sued for libel over a comment someone else made on your website, Section 230 of the Communications Decency Act grants you protection from third-party comments. Click here to learn more about Section 230.
Do famous people have a higher burden of proof when suing for defamation than private citizens?
Yes. Ever since the landmark defamation ruling in New York Times Co. v. Sullivan, public figures must prove “actual malice” when suing for slander or libel. Private citizens, on the other hand, only have to prove negligence, meaning they only have to demonstrate that a reasonable person would not have published or distributed the material in question.
Can I be held liable if someone posts a defamatory comment on the website I operate?
If you operate a website that allows users to comment or interact with the site in some way, there’s a chance a user could post defamatory content on your site. If you were not aware of the statement, you probably won’t be held liable thanks to Section 230 of the Communications Decency Act, which provides protection for website operators against third-party content published on their sites.
That being said, if you, in some way, promote or highlight the defamatory content, Section 230 may not save you.
Are bloggers considered journalists?
Whether or not bloggers are treated as journalists varies from case to case. In many online defamation lawsuits, bloggers have escaped unscated because they were viewed by the court as a journalist. In other lawsuits, like the Crystal Cox case, bloggers are not afforded the same protections of journalists and are often ordered to pay significant damages.
That being said, as media moves online, bloggers are commonly recognized as journalists in a court of law.
Is there such thing as defamation insurance?
Yes, you can get defamation insurance. Most insurance firms call it “media liability insurance” and if you’re a serious blogger, it is worth acquiring.
Umbrella insurance is a type insurance that protects property not covered in your homeowners insurance. For example, an umbrella insurance policy may provide protection for bodily harm, intellectual property damage or lease disputes. You can also get an umbrella insurance package that kicks in if you are sued for defamation – or need to sue for defamation.
Media liability insurance is a form of protection that kicks in when you are sued for defamation or need to sue some for defamation. In most cases, after the deductible is paid, your lawyer’s fees and any actual damages ordered by the court will be covered. Punitive damages, however, may not covered. In addition, any website with advertising may be exempt from receiving protection. So, make sure you talk to your insurance agent about the fine print.