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Generally,
defamation is a false and unprivileged statement of fact that is
harmful to someone's reputation, and published "with fault,"
meaning as a result of negligence or malice. State laws often
define defamation in specific ways. Libel is a written
defamation; slander is a spoken defamation.
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The party making a
defamation claim (plaintiff) must ordinarily prove four
elements:
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A
publication to one other than the person defamed; |
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A false
statement of fact; that is understood as |
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a.)
being of and concerning the plaintiff; and |
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b.)
tending to harm the reputation of plaintiff. |
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If the
plaintiff is a public figure, he or she must also prove
actual malice. |
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There are ordinarily
6 possible defenses available to a defendant who is sued for
libel (published defamatory communication.)
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1.) |
Truth.
This is a complete defense, but may be difficult to
prove. |
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2.)
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Fair
comment on a matter of public interest. This defense
applies to "opinion" only, as compared to a statement of
fact. The defendant usually needs to prove that the
opinion is honestly held and the comments were not
motivated by actual "malice." ( Malice means knowledge
of falsity or reckless disregard for the truth of
falsity of the defamatory statement.) |
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3.)
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Privilege.
The privilege may be absolute or qualified. Privilege
generally exists where the speaker or writer has a duty
to communicate to a specific person or persons on a
given occasion. In some cases the privilege is qualified
and may be lost if the publication is unnecessarily wide
or made with malice. |
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4.)
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Consent.
This is rarely available, as plaintiffs will not
ordinarily agree to the publication of statements that
they find offensive. |
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5.)
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Innocent
dissemination. In some caes a party who has no
knowledge of the content of a defamatory statement may
use this defense. For example, a mailman who delivers a
sealed envelope containing a defamatory statement, is
not legally liable for any damages that come about from
the statement. |
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6.)
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Plaintiff's poor reputation. Defendant can mitigate
(lessen) damages for a defamatory statement by proving
that the plaintiff did not have a good reputation to
begin with. Defendant ordinarily can prove plaintiff's
poor reputation by calling witnesses with knowledge of
the plaintiff's prior reputation relating to the
defamatory content. |
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No. But merely
labeling a statement as your "opinion" does not make it so.
Courts look at whether a reasonable reader or listener could
understand the statement as asserting a statement of verifiable
fact. (A verifiable fact is one capable of being proven true or
false.) This is determined in light of the context of the
statement.
A few courts have said that statements made in the
context of an Internet bulletin board or chat room are highly
likely to be opinions or hyperbole, but they do look at the
remark in context to see if it's likely to be seen as a true,
even if controversial, opinion ("I really hate George Lucas' new
movie") rather than an assertion of fact dressed up as an
opinion ("It's my opinion that Trinity is the hacker who broke
into the IRS database").
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Libel is a false
statement of fact expressed in a fixed medium, usually writing
but also a picture, sign, or electronic broadcast.
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When libel is clear
on its face, without the need for any explanatory matter, it is
called libel per se. The following are often found to be
libelous per se:
A statement that falsely:
Charges any person with crime, or with having been indicted,
convicted, or punished for crime;
Imputes in him the present existence of an infectious,
contagious, or loathsome disease;
Tends directly to injure him in respect to his office,
profession, trade or business, either by imputing to him general
disqualification in those respects that the office or other
occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has
a natural tendency to lessen its profits;
Imputes to him impotence or a want of chastity.
Of course, context can still matter. If you respond to a post
you don't like by beginning "Jane, you ignorant slut," it may
imply a want of chastity on Jane's part. But you have a good
chance of convincing a court this was mere hyperbole and pop
cultural reference, not a false statement of fact.
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Slander is a
defamatory statement expressed in a transitory medium, such as
verbal speech. It is considered a civil injury, as opposed to a
criminal offence. Actual damages must be proven for someone to
be held liable for slander. The tort of slander is often
compared with that of libel, which is also characterized as a
defamatory statement, but one made in a fixed form, such as
writing. |
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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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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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Not in the United
States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "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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No, they are not
required to delete. 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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Most states have a
statute of limitations on libel claims, after which point the
plaintiff cannot sue over the statement. For example, in
California, the one-year statute of limitations starts when the
statement is first published to the public. In certain
circumstances, such as when the defendant cannot be identified,
a plaintiff can have more time to file a claim. Most courts have
rejected claims that publishing online amounts to "continuous"
publication, and start the statute of limitations ticking when
the claimed defamation was first published.
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Trade libel is
defamation against the goods or services of a company or
business. For example, saying that you found a severed finger in
a particular company's chili (if it isn't true).
Along with the ordinary elements of a defamation claim, (see
What are the elements of a defamation claim?) the person suing
must prove money damages.
Defenses include 1) that the statement was true; 2) that the
statement was opinion, not fact; and 3) that the plaintiff did
not suffer monetary damage.
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Yes. The US Supreme
Court has said that "in the context of defamation law, the
rights of the institutional media are no greater and no less
than those enjoyed by other individuals and organizations
engaged in the same activities." |
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