As social networking sites and Internet blogs continue to increase in both popularity and usage, the opportunities for defamatory and libelous actions increase proportionately. Smears, sometimes called “character smears,” are spoken or written words that falsely and negatively reflect the reputation of a living person. Slander is generally spoken libel, while ‘libel’ is written. Blogs or social networks in which defamatory statements are written or recorded present several potential sources of liability and recovery for the person whose character was defamed. In cases where defamation is proven, damages are presumed and often liberally enforced.
Blog operators are generally exempt from liability for defamatory statements posted on their websites, as long as they did not contribute to the posting. In 2003, the Ninth Circuit Court of Appeals ruled that a list server moderator and website operator who allegedly posted defamatory statements provided by a third party was entitled to immunity under the Communications Decency Act (CDA). ). Batzel v. Smith, 2003 US App. LEXIS 12736 (9th Cir. 2003). However, if the online service provider plays an active role in requesting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the safe harbor enforcement of the Communications Decency Act (CDA). The defendant in that case operated a matchmaking website known as matchmaker.com. As part of his service, Respondent compiled profiles of singles based on an extensive questionnaire. The plaintiff sued Metrosplash over a false profile of her that an unknown user had posted on the website. The court ruled that by creating the lengthy questionnaire, Metrosplash played an active role in developing the information that had been published. Additionally, the court ruled that Metrosplash was an information content provider and therefore ineligible for the CDA safe harbor provided to “interactive computer services.” Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) CD Cal. 2002) (subsequently reversed by appellate court). While blog and service operators are generally immune from such liability, the more active the service is with its members, the greater the likelihood of potential liability as a publisher of defamatory materials.
Another possible source of liability is the person who actually posted the defamatory materials. As with more general defamatory statements or materials, a poster may be personally liable for anything posted that falsely and negatively reflects the reputation of a living person. Posting false and explicit statements regarding a person will generally be considered defamatory for purposes of liability. However, other issues arise related to the anonymity of the person posting the information and, if known, the jurisdiction to which it is subject.
Jurisdictional issues may arise in situations where the cartel had no reason to expect that the effect of publication would be felt in a given jurisdiction. However, in defamation cases, jurisdictional disputes are liberally resolved in favor of the victim. In Griffis v. Luban, the Minnesota appellate court ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. Defendant repeatedly posted messages on an Internet newsgroup attacking Plaintiff’s professional credentials. The plaintiff initially obtained a $25,000.00 default judgment in Alabama, which he sought to enforce in Minnesota. The Minnesota court ruled that the Alabama court had properly exercised jurisdiction because the effects of the messages were felt in Alabama and that the defendant should have expected to be sued there. An important factor in the ruling was that she had actual knowledge of the effect of the defamatory statements on the Defendant. Therefore, the Minnesota court enforced the default judgment of $25,000.00. faucet v. Luban, 633 NW 2d 548 (Minn Ct. App. 2001).
However, there are cases where the courts have refused to allow the exercise of personal jurisdiction on the basis of defamatory statements. In a Pennsylvania case, the court refused to exercise jurisdiction over a New York defendant who had posted defamatory comments about a defendant on an offshore gambling website. The court held that since the comments were not specifically directed at Pennsylvania, the court could not exercise personal jurisdiction over the defendant. English Sports Betting, Inc. v. Tostigan, CA No. 01-2202 (ED Pa. 2002).
The problems with bringing defamatory actions based on Internet postings lie largely in proving that the defendant actually made the post. If that connection can be made, a much stronger case can be made and jurisdictional issues can be addressed. An attorney with experience in cyber law and Internet cases can improve your chances of prevailing in any of those cases. Without the help of an attorney who can find and connect the evidence, most Internet defamation cases will fail due to lack of experience and sources of evidence.