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Question: Does it make any difference if I am commenting on a product or company rather than a person?
Answer: Product disparagement law prohibits certain false claims about another's goods or services. While a defamatory statement harms the reputation and character of a person or corporation, a product disparaging statement harms the marketability of the goods being disparaged. Product disparagement is typically harder to prove.
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Question: What is the legal definition of defamation?
Answer: The elements that must be proved to establish defamation are: (1) A publication to one other than the person defamed; (2) of a false statement of fact; (3) which is understood as being of and concerning the plaintiff; and (4) which is understood in such a way as to tend to harm the reputation of plaintiff.
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Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation?
Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.
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Question: Can an ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board?
Answer: No. Under 47 U.S.C. sec. 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection
against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.
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Question: How does the First Amendment to the Constitution affect defamation?
Answer: The free speech guarantees under the Constitution protect certain speech and commentary. The degree of protection generally depends on whether the person commented about is a private or public figure and whether the statement is regarding a private or public matter. According to the New York Times rule (from the case New York Times v. Sullivan), when the plaintiff is a public figure and the matter is one of public concern, the plaintiff must prove "malice" or "reckless disregard" on the part of the defendant. If both parties are private individuals, there is less protection for the speech because the plaintiff only needs to prove negligence.
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Question: What is the "publication" of a defamatory statement?
Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken.
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Question: What is defamation?
Answer: An attack by speech on the good reputation of a person or business entity. Speech that involves a public figure--such as a corporation--is only defamatory if it is false and said with actual malice. It also must be factual rather than an expression of an opinion. In the United States, because of our strong free speech protections, it is almost impossible to prove defamation of a public figure.
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Question: What are the elements of a defamation claim?
Answer:
The party making a defamation claim (plaintiff) must ordinarily prove four elements:
- a publication to one other than the person defamed;
- a false statement of fact;
- that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.
- If the plaintiff is a public figure, he or she must also prove actual malice.
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Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?
Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.
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Question: What is libel?
Answer: Libel is a defamatory statement expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What is the legal definition of defamation?
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FAQ: Questions