Blogger Defamation: An Introductory Legal Guide
Increasingly, online authors are being sued for libel. Sometimes it’s justified; sometimes it’s not. To help sort through the fact and fiction of blogger defamation, we created this FAQ. Don’t see your question listed? Please, get in touch.
Blogger Defamation Frequently Asked Questions (& Answers)
- What is defamation?
- Are bloggers considered journalists?
- Are bloggers considered public figures?
- I’m a political blogger, am I considered a public figure?
- Are corporations considered public figures for the purposes of a cyber defamation lawsuit?
- If I omit names from a blog post, can I still be sued for cyber defamation?
- Is it illegal to link to a defamatory statement?
- What happens if a third-party post on your website is defamatory, are you liable?
- What about paid/fake reviews, are they allowed or can they result in a cyber defamation lawsuit?
What is Defamation?
Slander (spoken defamation) and libel (written defamation) statutes are nuanced, and vary from jurisdiction to jurisdiction, but the basic definition is as follows:
defamation, n. (14c) 1. The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault. 2. A false written or oral statement that damages another’s reputation. See LIBEL; SLANDER. Cf. (Black’s Law Dictionary, Ninth Edition)
Defamation falsity must be provable. You won’t get far suing an adversary for calling you “a sorry excuse for a blogger” because morality is subjective and one person’s “sorry excuse” could be another person’s “hero.” Now, if someone said you “stole money to finance your blog” – and you didn’t – there’s a good chance you’d win a defamation lawsuit.
The definition of “privilege” and whether or not it’s considered protected speech largely depends on jurisdiction. The general rule of thumb: Private communications, including confidential litigation proceedings or doctor-patient discussions, typically don’t qualify as defamation.
Public Figures v. Private Figures
If the plaintiff in a slander or libel lawsuit is a public figure, he or she must prove their respective defendants acted with actual malice — the intentional publishing of false information, to inflict reputational harm.
The definition of a public figure differs from jurisdiction to jurisdiction. Generally, celebrities (local or famous), public office holders, or anybody who thrusts themselves into a public debate, are deemed “public figures” and must meet “actual malice” standards. In some regions, teachers and government workers also qualify as public figures.
Private figures, on the other hand, only have to convince a judge or jury that a reasonable person wouldn’t have published the material in question.
Are Bloggers Considered Journalists?
Are bloggers considered journalists? Yes. The United States Supreme Court ruled that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”
But don’t fool yourself into thinking that the First Amendment will protect everything you publish. Engage in rigorous journalistic ethics and quadruple check everything for accuracy before posting. Cite sources and be careful with wording. Because remember, the same well-funded, in-house legal teams going after big media are the same ones going after bloggers.
Are Bloggers Considered Public Figures?
As discussed above, United States defamation law differentiates between public and private figures. Public figures must meet the actual malice standard; private citizens only have to prove negligence.
In many cases, bloggers are deemed public figures, because, by posting, they’re willing involving themselves in a conversation or issue.
I’m A Blogger Who Focuses on Local Government. Am I Considered A Public Figure Since I Willingly Inject Myself Into Matters Of Public Interest?
In some jurisdictions, anybody who willingly enters in a public discourse about a matter of government or public interest can be considered a limited-purpose public figure. Some states, though, legislatively protect citizens who comment on public proceedings. For example, in California, you can make “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.”
Are Corporations Considered Public Figures in Defamation Lawsuits?
Whether or not a company will be viewed as a public figure depends on the case details. The general rule of thumb: Corporations are people and held to the same standards as individuals.
If I Start Every Sentence With ‘IMO,’ Can It Be Viewed As Defamatory? What If I Don’t Use Names?
Even if you omit names from articles, if the target can be reasonably inferred from surrounding content, it may be ruled defamatory.
Judges apply the “reasonable person” test. In other words, if a reasonable person thinks the blogger attached a weak qualifier to an obviously defamatory statement, the blogger can still be held liable.
Or, to put it bluntly: Saying, “In my opinion,” in front of a defamatory statement isn’t going to save you.
Is It Illegal To Link To Defamatory Content?
Yes, according to United States legal precedence, in certain circumstances, you can be held liable for linking to defamatory content — especially if the surrounding context discusses the material.
Plenty of defenses work in hyperlink defamation cases, but if you want to play it super safe, avoid linking to material that may be defamatory. The more salacious/outrageous the material, the greater the chance it’s defamatory.
What Happens If Someone Posts Something Defamatory On My Site? Can I Be Held Responsible?
Section 230 of the Communications Decency Act absolves Internet service providers from being held responsible for defamatory user content. So, if someone leaves a defamatory comment under one of your posts, you probably won’t be held responsible for their missive. In rare occasions, though, you may be.
Is it defamatory to post a negative online review of a product or service? What if it’s a phony review?
Simply stated, it’s never OK to post fake product or service reviews on the Web. Not only could you be brought up on defamation charges, but Lanham act violations as well, which renders illegal any action that “misrepresents the nature, characteristics, or qualities of his or her or another person’s goods, services or commercial activities.”