Pornography is not the only thing you need to worry about on the World Wide Web. Far from it. Although the Internet is perhaps the most significant technological development of the late 20th century, like most everything in life, it has its dark side.
The Good... and the Bad
The Internet provides many wonderful things, such as instantaneous communication (most of the time); virtually unlimited access to information (some unfortunately inaccurate); and a platform for business, social networking, virtual communities, recreation, shopping and so on. You can surf the Net, send and receive email, converse using webcams and instant messaging, build sophisticated intranets and websites, create online communities and forums, explore virtual worlds (think of World of Warcraft and its millions of subscribers), conduct business, advertise, stream music and video, and even watch many of your favorite TV shows (hello Hulu).
Marvelous indeed is the Internet. But it has its dangers as well, including one that is often overlooked by companies and individuals when they post information on the Web, whether on a blog, via one of the popular social networking sites (such as YouTube, Facebook, Twitter and LinkedIn) or through countless other means. That danger is called defamation, and it is a double-edged sword that can potentially harm both the targets of defamatory statements and those who make them.
Defamation (loosely defined as harming the reputation of a person or a business) has long been with us, dating back to the early English common law on which the American legal system is based. Defamation is a claim that, at its core, has always been at odds with our fundamental right of free speech, a war that continues to this day and is being fought especially hard on the Internet. People and companies are regularly being sued for posting allegedly defamatory statements on the Internet. So before you twitter or find yourself the object of a tweet that you do not like, it is wise to get a better understanding of what constitutes defamation on the Internet.
There are really two related types of defamation in this context: ordinary defamation and trade libel. According to an Illinois appellate court in Anderson v. Beach, ordinary defamation consists of a false statement that is (1) not privileged, (2) harms someone's reputation, (3) is "published" (somehow made known) to a third party and (4) results in injury. However, as decided by another Illinois appellate court in Naleway v. Agnich, the last element (injury) is assumed to exist, and thus need not be proved, if the statement is considered "defamatory per se."
In Illinois, "defamation per se" falls into five categories: (1) statements indicating that a party has committed a crime; (2) statements indicating that a party is infected with a loathsome and communicable disease; (3) statements indicating that a party is unable to perform or lacks integrity in performing his or her job; (4) statements that prejudice a party, or indicate a lack of ability, in the party's trade, profession or business; and (5) statements indicating that a party has engaged in adultery or fornication. Note that even today, Illinois and many other states still consider a charge of adultery or fornication to be so harmful to a party's reputation that special injury need not be proved.
Trade libel, which is also called commercial disparagement, is similar to ordinary defamation, with one key difference. With trade libel (as reflected in many cases, such as the Illinois appellate court in Crinkley v. Dow Jones and Co.), plaintiffs must prove that the false statement impugned the quality of a party's goods or services.
Although truth is always a defense to defamation, belief is not. Generally, if a false and defamatory statement is made negligently, it is not a defense to say that the person making the statement sincerely believed that the statement was true.
In years past, defamation was divided into two types of statements: libel (contained in a written document) and slander (stated orally). For the most part, those distinctions no longer apply. Thanks to Bryson v. News America Publications, Inc., a 1996 Illinois Supreme Court decision, liability does not hinge on defamatory statements being classified as either written or oral. Thus, you can be liable for defamation by sending an email just as easily as by mailing a letter or shouting in public. Furthermore, the courts do not need to decide if an email is "written," if an Internet call using Skype is "oral" or if everything that happens over the World Wide Web falls into some other category entirely.
Statements vs. Opinions
The important thing to understand is that defamation laws apply to the "publication" of statements on the Internet, just as they do to traditional written and oral media. Thus, if you incorporate a statement against a competitor into your website, or your latest blog post includes something disparaging about a local merchant, that content is considered "published" to all of your readers and is subject to the laws of defamation. If it is an untrue statement that harms the reputation of the company or individual to which it is directed, you could be liable for defamation. Conversely, if you are a business owner and you find your company the subject of untrue statements on the Internet about your services or products, you possibly have a claim for defamation.
The word "possibly" is important here. As an Illinois court stated in Skolnick v. Correctional Medical Services, Inc., "there is an obvious tension between freedom of speech and defamation." This tension exists because a defamation claim can inhibit the "free and frank exchange of ideas, facts, and opinions," according to Sullivan v. Conway. Thus, only untrue statements about a company's products/services or an individual's character are actionable, while opinions are considered free speech, as established by the Illinois Supreme Court in Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc. Within this context, it is surprising how far courts will go in deciding what constitutes an opinion. For example, in Penn Warranty Corporation v. DiGiovanni, a recent New York case dealing with this very subject, the court found statements such as "plaintiff is a blatantly dishonest company," "plaintiff is a crooked company" and "plaintiff has been ripping off his contract holders for quite a while" to be non-actionable opinion. In reaching this conclusion, the court referred to the fact that New York courts historically "have been loathe to stifle someone's criticism of goods or services."
A Privilege to Defame
Similarly, Illinois courts will find statements of opinion to be non-actionable, as was the case in Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc. Moreover, even otherwise defamatory statements are at times protected by what is known as a qualified privilege. For example, as the Illinois Supreme Court ruled in Solaia Technology LLC v. Specialty Publishing Co., reporters have a qualified privilege to "fairly report" public proceedings, which allows them to repeat statements made at public meetings, even if those statements are defamatory and the reporter personally believes they are false.
In general, Illinois courts often find that a party actually has a qualified privilege to make a defamatory statement in circumstances in which, according to Genelco, Inc. v. Bowers, "it is in the public interest that [the person making the statement] feels free to speak candidly." Applying that principle to the Internet, the Illinois Supreme Court would likely find a qualified privilege for consumers to give their views about products or services, even if those views do not amount to opinions and even if they might otherwise be considered defamatory statements. On the other hand, as the Genelco court held, a qualified privilege can be defeated if a defamatory statement was made with actual malice, meaning the individual or company making the statement had knowledge of its falsity.
It Pays to Think Twice
As noted previously, truth is always a defense where defamation is concerned. But if a statement is untrue and it harms someone's reputation, it is not a defense simply to say, "I believed it was true" (unless you have a qualified privilege). That is why you should always think twice when publishing critical and disparaging comments about another person or business on the Internet, whether you are blogging and twittering or posting on Facebook and YouTube. Just as importantly, if you are on the receiving end of potentially defamatory statements about yourself or your business, you do not necessarily have to sit by and take it. There are laws that protect you, even within the realm of free speech and free competition.
If you are uncertain whether statements you are about to make over the Internet might constitute defamation or you believe you have been defamed by another party on the World Wide Web, consult an attorney. Although the law in this area has not always been consistent in its attempt to find the right balance between reputation and free speech, it has done and continues to do a fairly good job of protecting both.© 2013 Much Shelist, P.C.