What Is Online Defamation?
The internet has revolutionized communication, making it easier than ever to share information about people, businesses, and organizations. However, the ability to rapidly disseminate information also has its downsides, including the easy spread of false and damaging information online, which can cause long-lasting reputational, emotional, and financial harm to the subjects of the publications. This false information can be spread through social media (Twitter, Instagram, TikTok or Facebook), review websites (Google, Yelp, or Indeed), or a multitude of other platforms that allow the publication of user-generated content.
If you have been the subject of the publication of false and damaging information online, you may be the victim of online defamation. In this article, Buckingham provides basic information regarding online defamation, common scenarios in which online defamation occurs, preliminary steps for handling online defamation, and how to secure legal help to address the situation.
What is Online Defamation?
Generally speaking, online defamation – also known as “internet defamation” or “cyber-libel” – is the online publication of one or more false statements of fact about a third party, which causes reputational damage to the subject of the publication.
Like “traditional” forms of defamation (such as the publication of libelous statements in a newspaper or utterance of a false statement during a television broadcast) to prove online defamation in court, the plaintiff must produce evidence establishing the following elements:
- The defendant published a statement about the plaintiff to a third party.
- The statement was false and capable of being proven false (i.e., not an opinion or hyperbole).
- The statement was not privileged and made with the requisite degree of fault (negligence or actual malice).
- The statement was either inherently damaging (defamatory per se) or caused economic damages.
Of course, the precise requirements for pleading and proving the elements of an online defamation claim will depend upon the what (state) law that the court applies, which often requires a careful legal analysis if the parties reside in different jurisdictions.
From a purely legal perspective, online defamation differs little from other forms of defamation. Indeed, in some respects, online defamation can be easier to prove because the publication of a statement to the internet typically removes any question that the statement has been seen by third parties.
However, as a practical matter, cases involving online defamation are distinguishable in terms of severity of harm that can be suffered by the victim, as well as the legal challenges attendant to prosecuting a claim.
For the victim, the detrimental impact of the defamation can be more severe, as the false statements can spread much more quickly and to a broader audience than in traditional defamation cases. A damaging post or review can be rapidly circulated to thousands of individuals within a matter of hours through reposts, “likes,” or shares. Sometimes, significant damage has already been done by the time the victim is made aware of the defamatory content, leaving the victim feeling overwhelmed and helpless.
Pursuing online defamation claims in court also present unique practical and procedural challenges, especially where the perpetrator is anonymous or otherwise unidentifiable due to the use of a pseudonym. While it is certainly possible, through legal proceedings, to unmask these nefarious actors and hold them accountable, it requires the use of specific procedural mechanisms that not all attorneys – or even courts – are familiar with.
Additionally, it can be difficult to establish the full extent of the harm caused by online defamation. For example, unless specific individuals reach out to a business and indicate that they decided not to engage with that business due to a (false) negative review online, the business may struggle to show the financial impact of the defamatory publication. Knowing how to demonstrate the extent of the damage caused to a plaintiff in an online defamation case can be crucial to securing a remedy sufficient to address the harm that has been caused.
Who Can Fall Victim to Online Defamation?
From celebrities and Instagram influencers with millions of followers to small business owners and private citizens with a limited internet presence, online defamation can happen to anyone.
Several recent high-profile cases involving online defamation have captured the attention of the media due to the public figures involved. For example, in early May 2023, a jury found Donald Trump liable for the publication of false statements about advice columnist E. Jean Carroll on Trump’s own social media platform Truth Social. The jury clearly understood the devastating impact of Trump’s defamation statements, awarding Carroll several million dollars to compensate her for past damages ($1 million), as well as damages to facilitate reputation repair ($1.7 million).
Similarly, last year, the media was captivated by the defamation lawsuit initiated by Grammy-winning rapper Cardi B against YouTube blogger Tasha K – another case that ultimately resulted in a multimillion dollar jury award to the plaintiff and that was recently upheld by the U.S. Court of Appeals for the Eleventh Circuit.
Cases like these – involving high profile litigants and large jury verdicts – receive the most attention from the media and are often what come to mind when the terms “online defamation,” “internet defamation,” or “cyber-libel” are invoked. Without question, the publicity given to such cases helps to highlight that online defamation is a serious matter and that those suffering reputational harm from false statements online are entitled to a remedy.
However, the overwhelming majority of victims of online defamation are not celebrities or public figures – rather, they are private individuals, professionals and business owners who wish to remove themselves from the unwelcome attention created by the false and defamatory statements of the perpetrators.
Common Online Defamation Situations
There are innumerable scenarios in which online defamation can occur, but experience informs that certain scenarios are more common than others, such as:
- The publication of fraudulent, anonymous and negative (one-star) consumer reviews about a business to a review site, such as Google Business, Yelp, or the Better Business Bureau.
- False claims of employee mistreatment, corporate malfeasance, or on platforms such as Indeed or Glassdoor.
- False accusations of sexual harassment or assault by ex-partners on social media platforms like Twitter, Facebook, or TikTok.
- False statements or characterizations of products or services in YouTube “reviews” by the victim’s competitor.
- False allegations of malpractice against medical or legal professionals on industry-specific platforms.
No matter where the defamation occurs, the impact can be devastating to an individual or business and options for how to handle the issue should be explored.
How to Handle Online Defamation
If you are the victim of online defamation, it is important to consult with an attorney to understand your rights and obtain guidance about your options. This is particularly true when the defamatory content has already caused reputational, emotional or financial harm to your or your business.
However, if you are unable to consult with an attorney immediately or wish to try handle the matter personally before seeking legal advice, there are several steps you can take to mitigate the harm caused by the content and preserve your rights:
- Identify the person (or entity) publishing the content. Determine if the content is published by someone you know (e.g., a former co-worker, partner, or customer) or if the publisher is anonymous (or using a pseudonym). If you know who the person is and are confident you can have a calm, private conversation about the defamatory content, this may be an appropriate option.
- Resist the urge to retaliate or publish content about the defamation itself. Immediately posting a response to false and damaging online content is almost never the best course of action. It is likely to draw more attention to the negative content itself or provoke the original poster to publish additional damaging statements.
- Preserve the defamatory content. Take a quick screenshot of the content including the defamatory statement about you or your business, making sure to include the name/identity of the person who published it (if available) and the entirety of the publication where the defamation occurred. If you decide to seek legal assistance, you will want this crucial evidence to help prove your case.
- Report the content to the platform or website where it is published, if applicable. Many social media platforms and websites featuring user generated content contain Terms of Service regarding permissible content. If the defamatory publication is not only false, but violates the platform or website’s Terms of Service, you may be able to secure its removal through reporting to the website or platform.
- Document the impact of the defamation. This may be as simple as paying attention to how many people have “liked” or commented on a social media post or how many times it has been shared. If you receive any emails or text messages about a post, save these and also document any in-person or telephone conversations about the defamation.
Taking care to understand the full scope of the defamation, preserving evidence, and resisting the urge to act on emotion will help put you in a position to limit the harm caused by the defamation and make an informed decision with legal guidance if (or when) you decide to do so.
How to Prevent Online Defamation
While there is no surefire way to prevent online defamation, there are several ways that you can decrease the likelihood of becoming a victim. For example:
- Avoid engaging in public disputes online. Whether you’re a business or an individual, getting into public fights increases the likelihood that you will be targeted for attack online.
- Don’t post false accusations about others. As with the foregoing point, it is important to demonstrate good behavior online to help avoid becoming the victim of retaliatory defamation.
- Claim social media profiles. Sometimes online defamation can occur through impersonation accounts, such as a person creating an Instagram account pretending to be you and then publishing offensive content such that others think you are behind it. If you create social media profiles under your own name (or claim a business profile for purposes of review platforms) impersonation accounts will have less impact and are easier to report and get taken down through the platforms.
- Understand the features of platforms and websites where you post content. Some platforms allow you to turn off (or limit) comments or third-party reviews on their site. It is good to be aware of this option in the event that a former employee or customer threatens to tarnish your reputation on social media, for example. Limiting comments can also limit reputational harm.
Remember, there is nothing you can do to ensure that you will not become the victim of online defamation and, typically, the victims of the online attacks have done nothing wrong at all. While facing online defamation can be difficult, there are things you can do to address the issue and people who can help.
Find an Online Defamation Lawyer
If you are the subject of defamatory content published online, it is always helpful to speak to an experienced legal professional to discuss your options and make sure you are protecting your rights. Sometimes the effects of internet defamation are not immediately felt and victims wish to wait and see whether addressing the defamatory content through legal means is prudent. However, understanding your options – and the timeframe in which you must take legal action – is important in any case involving defamation due to the fact that defamation claims in many states have a relatively short statute of limitations.
If you have a matter involving online defamation, we welcome you to contact Buckingham to set up a complimentary consultation to discuss options for the handling of your specific matter. The attorneys in our Defamation Practice Group have a wealth of experience handling online defamation matters in both state and federal courts throughout the country.
If you are interested in speaking to one of our attorneys, please contact us via email at [email protected] or call 440.578.0905 .