Must a website give up the name or email of an alleged anonymous defamer?
Does the First Amendment allow for negative, anonymous online speech?
Why do some judges grant subpoenas forcing ISPs to hand over identifying information, but other judges won’t?

We’ll answer these questions –- and more — below.

Free Speech v. Defamation

Sometimes, when an online defamation lawsuit makes news, the peanut gallery jumps on assumptions and free speech screeds spread like a zombie swarm – gaining force and riling emotions along the way.

Now, before you disagree, let’s be clear: Of course free speech is important! It’s THE essential component of a healthy society – 100%. We should – nay, must — be allowed to voice negative opinions about everything.

If we’re telling the truth.

The truth part is paramount. Once the honesty line is crossed, it’s no longer about free speech. Maliciously or negligently spreading lies about another person or company is unethical — and it’s also against the law. It’s called defamation (slander if spoken, libel if written) and engaging in the act can cost you – big time.

The Main Elements of Defamation

Each U.S. state has a set of slander and libel laws, and although the rules vary from jurisdiction to jurisdiction, overarching federal regulations outline the boundaries of defamation law.

1. Publication or Broadcast – Private gossip between two people doesn’t qualify as defamation, but if the “news” goes public, then it may. Information transmitted via emails, blog posts, comments on social media and other websites, newspaper articles, video segments, newsletters, TV spots, public speeches, SMS and text messages can be defamatory.
2. Identification – People and businesses can’t win defamation lawsuits if they can’t prove they’re the parties being defamed. Sounds silly, but consider the Internet; most people use online aliases. Which raises the question: how can potential defamation plaintiffs name a defendant if they only know the alleged defamer’s “Internet handle.” (Note: It is possible to pursue a defamation lawsuit against an anonymous defamer, it just requires an additional procedural step, which we’ll get to in a few minutes.)
3. Falsity – In the majority of cases, a true statement isn’t considered defamatory. (Go here to read about the exceptions to the rule.) To quote Dominick Dunne: “The law is not about the truth, it’s about the evidence.” If a given statement is, indeed, true, but the plaintiff has convincing evidence to the contrary – evidence that trumps the defense’s – a plaintiff has a shot at winning a defamation lawsuit, even if the statement at issue is true.
4. Negligence – Perhaps the most difficult aspect for defamation plaintiffs to prove is negligence or malice. It’s also the most nuanced component, because different rules apply to different people. If you’re a “public figure,” to win a slander or libel lawsuit, you must prove that the defendant knowingly lied to cause you harm. You can’t successfully sue someone for defamation if he or she can prove proper due diligence in disseminating the information. Who qualifies as a public figure depends on jurisdiction. Generally speaking, though, famous people, elected officials, local celebrities, and anybody in the news can qualify as a public figure for the purposes of a defamation lawsuit. If the plaintiff is a private figure, instead of proving actual malice, he or she only has to meet the negligence standard.
5. Harm – If a defamation plaintiff can’t prove harm, he or she can’t win. What constitutes harm depends on the alleged lie. It’s best to speak with an attorney to determine if your definition of “harm” meshes with the courts’ definition.

Other Legal Standards That Affect Anonymous Defamation Lawsuits

The above elements define the boundaries of United States defamation law. Below are common legal issues and standards that affect slander and libel cases. Think of the five elements above as the bowl, and these are the food that fill it.

Privilege

Essentially, privilege addresses protected relationships and conversations. Most people associate “privilege” – in the legal sense – with the confidentiality assurances enjoyed by doctors and their patients or attorneys and their clients. Reporters also enjoy source privileges. Various employment relationships also confer privilege protections, as does the reporting of suspicions (i.e., properly reporting a reasonable suspicion of child abuse to authorities).

Many Defamation Defendants Win On Privilege Grounds

Claiming privilege is a common – and often successful — defamation defense. Board meetings, employment reviews and other supervisory mandates fall under the privilege umbrella.

That said, it is an extremely nuanced aspect of defamation law. If you’re thinking about filing a libel, trade libel or slander lawsuit, speak with an attorney about your specific situation to determine if your case could easily be defeated on privilege grounds.

Substantial Truth

A common mistake is filing a defamation lawsuit over a slightly inaccurate statement. Those types of cases are almost always defeated using the “substantial truth” defense.

Substantial Truth Examples

Let’s say that John Q. Public stole $1 million from a hedge fund, and then a financial blogger inaccurately reported that he stole $2 million. Even though the information is wrong, the fact that Johnny Q. stole money is accurate, and the exact amount doesn’t change the overall perception – or message — of the blog post.

If, however, a small inaccuracy makes a big difference to the overall impression — or message — of a blog post, John Q. Public could have a viable defamation suit.

Pure Opinion v. Mixed Opinion

The difference between “pure opinion” and “mixed opinion” is a vital distinction in defamation lawsuits.

Pure Opinion

Pure opinion is a statement based on non-secret, non-defamatory facts. For example, let’s say John Q. Public, who was found guilty of stealing $1 million from a hedge fund in 2005, is running for president in 2016. Reporter Jane X. Doe writes an opinion piece for the WSJ saying she doesn’t think that, on account of his thievery, Q. Public is a good choice for chief executive. In this scenario, John Q. Public probably wouldn’t win a defamation suit against Jane X. Doe because she published her “pure opinion” of his candidacy based on verifiable facts. It’s free speech protected by the First Amendment.

Mixed Opinion

A “mixed opinion” statement is a declaration or judgment based on private, implied or unsubstantiated false facts. For example, let’s say our old buddy, John Q. Public, decides to become a plastic surgeon after being drummed out of the finance world for his $1 million hedge fund theft. Jane X. Doe goes to Q. Public for a nose job and hates the outcome. So, she goes to Yelp! and leaves a nasty review saying:

“I should have checked his record before I chose him as a doctor. John Q. Public used to work for a hedge fund and supposedly he was fired for sexual harassment!”

Since Johnny boy wasn’t fired from the hedge fund for sexual harassment, he’d have a great shot at winning a defamation lawsuit against Ms. Doe in this scenario.

Popular Defamation Defenses

What are some oft-used defamation defenses?

Too Late

Defamation statute of limitations is between one and three years, depending on the jurisdiction. If you miss the deadline by just one minute, you’re out of luck — no matter how egregious the violation. In several jurisdictions, if the statement in question is on a website, the statute of limitations resets every time it’s republished.

It’s The Truth!

As the saying goes: it’s not defamation if it’s true. To be fair, this adage is only accurate 95% of the time. Truthful statements can be deemed defamatory if the facts and context of the case are just so.

It wasn’t Me

Due to the nature of the Internet, there’s been an uptick of anonymous defamation lawsuits – which correlates to an increase in the “it wasn’t me” libel defense plea. Shared IP addresses have caused havoc in many a current day defamation lawsuit.

(Unsolicited advice: If you’re moving forward with an Internet defamation lawsuit, find an attorney that has already handled Internet libel cases. Aspects of the Web make online defamation cases a bit different than traditional ones.)

It Wasn’t You!

In order to win a defamation suit, plaintiffs must prove that they’re the persons being disparaged. If defendants can prove that they weren’t “talking about you,” they’ll likely win.

I Believed My Statement Was True!

The most difficult hurdle for a defamation plaintiff is proving negligence (if the plaintiff is a private citizen), or actual malice (if the plaintiff is a public figure) on the part of the defendant.

In order to win a slander or libel lawsuit, the plaintiff must prove that the defendant either knowingly or negligently published or broadcast the statement under review. For example, if reporters get stories wrong, but prove sufficient due diligence, it’s not defamation.

No Harm

Defamation plaintiffs must prove material or reputational harm to win. Businesses defamed on review websites must show that their bottom lines tanked near or on the date of publication. Individual plaintiffs usually have to provide evidence of a lost job, severe emotional harm or reputational damage.

Does The Nature Of The Internet Make Online Defamation Impossible?

What was once a playground for programming geniuses and risk-welcoming ne’er-do-wells, is now a viable, thriving, global marketplace. The Internet is the new Promised Land; a digital Dickensian street, where scammers and honest merchants are yelling, selling and gesticulating for your attention.

And only a smattering of regulations govern online conduct and business.

So, with the way the Internet is, where does defamation fall into the mix?

In a New York Law Journal article, Richard Raysman and Peter Brown weigh in:

Prof. Lyrissa Barnett Lidsky has noted in the Duke Law Journal that the poor grammar, caterwauling, hyperbole, and frequent name-calling associated with anonymous Internet posts has created a “First Amendment doctrine” that “cannot hold John Does to the standards of … factual accuracy, because part of what gives the Internet such widespread appeal, is the fact that it allows ordinary citizens to have informational conversations about issues of public concern.”

Is Prof. Barnett Lidsky saying that information on the Internet can never be interpreted as fact? Well, yeah, she sorta/kinda is. But nearly twenty years into the Digital Age, is that still a fair assumption? Sure, hacker collectives and loose assemblies may pull a prank to make a point, but the days of “Where’d you learn that? Wikipedia. Oh, well, you can’t believe anything you read on there,” are over. We do EVERYTHING online these days. Legally speaking, are we still supposed to view the entire Internet as a sea of cynicism and misinformation?

Bad Clients Happen

What if it was you? What if an impossible-to-please client decided to spread lies about your services online? Sure, we’re all old enough to know that life isn’t fair, but “not fair” and “illegal” aren’t the same. We live in a democracy, not an anarchy – and lying about a competitor to gain a market advantage is against the law.

Believability Matters

Believability is a big factor in libel cases. To win defamation rulings, plaintiffs must prove that a “reasonable person” would most likely perceive the information as “factual truth”– not one person’s hyperbolic, opinionated rant. This last part presents a quandary when it comes to the Internet. Because as one judge recently put it, since the Internet is “a repository of a wide range of casual emotive and imprecise speech,” users “do not attribute the same level of credence to the statements they would accord to statements made in another context.”

In other words (and of course, we’re paraphrasing here): everybody knows not to believe everything they read online because the World Wide Web is just a cauldron of opinion and nothing more.

But, as we approach the 21st century’s third decade, the “pish-posh Internet” attitude may be as misguided as former Digital Equipment Corporation CEO Ken Olson’s 1977 prediction that “there is no reason anyone would want a computer in their home.”

The Internet is no longer a novelty platform used solely for porn and the polemics of unstable people (those still exist, of course). Nowadays, we — nearly everyone — lives online. We use the Internet to shop, research, pay bills, communicate with friends and get news.

The reason traditional print media outlets are downsizing and shuttering at alarming rates is directly related to the rise of the Internet.

We no longer rely on big media for “truth.” These days, we turn to websites we trust for daily doses of news and views. And let’s be honest: we tend to trust outlets that parrot our personal views.

But in this environment, where do we draw the ondefamation line? It’s a question the courts are still trying to answer.

When Is A Judge Likely To Grant An Identity Revealing Court Order

Case law regarding identity revealing court orders is all over the map. Some judges will grant discovery subpoenas for the purposes of unearthing an accused anonymous defamer; other judges are more reticent to do so. Generally speaking, judges are more likely to force an ISP to hand over information to would-be defamation plaintiff if:

1. The statement at issue is a statement of fact, and the plaintiff can convincingly plead it’s inaccuracy;
2. The plaintiff can prove that the statement caused him or her demonstrable harm;

Defamation Cases Where A Judge Granted A Plaintiff An Identity Revealing Court Order

New York Case

Whether or not judges grant anonymous defamation discovery orders has a lot to do with their personal views of the Internet. This subjective reality was recently made crystal clear by a New York judge. In granting a court order, which forced an ISP to hand over identifying information to an anonymous defamation plaintiff, he stressed:
“Maliciously spreading false statements of fact about another person or business is against the law in every corner of the United States.”

And then acquiesced:

“case law across jurisdictions supports the proposition that the forum … of an Internet message board, chat room or blog is a factor that weighs in favor of finding that a reasonable reader would not read a statement as a factual assertion…”

But then ultimately reasoned:

“[the] mere fact that a statement is made on the Internet” does not automatically render it hyperbolic.

Yelp v. Hadeed Carpet Cleaning

An anonymous online defamation case out of Virginia – Yelp, Inc. v. Hadeed Carpet Cleaning — exemplifies a case in which the plaintiff was granted a “subpoena duces tecum” forcing Yelp to reveal the names of seven anonymous posters.

In Hadeed, the judge sided with the plaintiff because he was able to satisfactorily argue, using business records, that the negative reviewers had probably never even used his carpet cleaning service. As such, the judge said that “’factual statements made to support or justify an opinion’” can be the basis of a defamation claim.

In other words, since the alleged Yelp defamers didn’t shop at Hadeed’s carpet store, the case could continue.

When Is A Judge Unlikely To Grant An Identity Revealing Court Order

When judges don’t grant identifying court orders, it sometimes has to do with personal perceptions of the Internet.

Take, for example, the decision in Nanoviricides (NANO) v. Seeking Alpha. NANO, a pharmaceutical company, tried to sue a SeekingAlpha.com user, “Pump Terminator”. According to Nano, Pump’s inaccurate post about the company caused a steep decline in its stock price. But, the judge wouldn’t grant the order. Why? Because of three main factors:

1. The web page on which the statement was posted had the following disclaimer in clear view: “the thoughts expressed therein were an expression of the author’s opinion. “
2. The judge reasoned that “the author proffered his opinion subsequent to a clear recitation of the ‘facts’ under-girding the opinion.”
3. The judge decided that the statement’s appearance on a public online forum automatically qualifies it as an opinion. He reasoned: “[the] fact that the article appears on an internet message board also supports a finding that the article must be an expression of the author’s opinion.”

Speak With A Defamation Attorney

We’ve covered the basics of defamation — specifically online defamation — but it’s an extremely nuanced area of law. If you’re dealing with a situation, and it’s time to speak with a lawyer about the matter, get in touch with Kelly Warner Law. We’re a top-rated firm that’s handled hundreds of anonymous and Internet and trade libel lawsuits. Our track record is excellent, and we always aim to get issues resolved as quickly as possible.

Get in touch today to being a conversation about your online defamation situation.