DEFAMATION

A statement is defamatory if it "tends to injure the plaintiff's reputation and expose theplaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref.Corp., 408 N.W.2d 569, 573 (Minn. 1987).The defendant must have known or should have known that the communication was false.The statement must also have been a statement of fact.

Defamation

Per se

Some statements are so defamatory that they are considered defamation

per se;

and theplaintiff need not prove that the statements harmed his reputation. The classic examples of defamation

per se

are allegations of serious sexual misconduct; allegations of seriouscriminal misbehavior; or allegations that a person is afflicted with a loathsome disease.

What Constitutes Injury to Reputation?

The plaintiff must establish proof of damage to reputation in order to recover any damagesfor mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244(1982).

Libel-proof plaintiffs

Some plaintiffs have such poor reputations to begin with, they are considered “libel-proof.”

A plaintiff is "libel-proof" when his reputation has been irreparably stained byprior publications. At the point the challenged statements are published, then, plaintiff'sreputation is already so damaged that a plaintiff cannot recover more than nominaldamages for subsequent defamatory statements. Marcone v. Penthouse Int'l Magazinefor Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).

Defenses to Defamation

Truth is an absolute defense.If the communication is designed as a parody where a reasonable audience would notconfuse it as factual, it is not actionable. Falwell v. Hustler Magazine. In Falwell, theSupreme Court held, “At the heart of the First Amendment is the recognition of thefundamental importance of the free flow of ideas and opinions on matters of public interestand concern. The freedom to speak one's mind is not only an aspect of individual liberty –

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and thus a good unto itself – but also is essential to the common quest for truth and thevitality of society as a whole. We have therefore been particularly vigilant to ensure thatindividual expressions of ideas remain free from governmentally imposed sanctions."In the mid-80s, Hustler magazine printed a satirical advertisement talking about JerryFalwell’s “first time” with liquor. The advertisement was a play on words that made it seemlike Jerry was talking about his “first time” with a woman. Since the advertisement wasclearly a parody and one where a reasonable audience would know that the statementswere not factual, Jerry Falwell lost his lawsuit.

“Actual Malice”

If the Plaintiff is considered a Public Official or Public Figure, they have to prove that theDefendant acted with malicious intent to harm the Plaintiff. It’s an extra element that makesit more difficult for public figures to file suit against their detractors.

What’s a Public Figure/Official

In general, Public Officials are individuals that hold public office while public figures areindividuals that are in the forefront of particular issues.Large, publicly traded companies are typically treated as “public figures” for purposes of First Amendment cases. If a citizen lashes out at Comcast and communicates falsestatements. Comcast would have the additional burden of proving that the individual actedwith malicious intent to harm the company.

Opinion defenses

The First Amendment protects statements of opinion, as distinct from statements of fact,against claims of defamation. A statement is an opinion when:(1) the statement is genuinely believed; and(2) that there is a reasonable basis for that belief; and(3) that the speaker is not aware of any undisclosed facts tending to undermine theaccuracy of the statement.Prefacing a sentence with “in my opinion” is not always the cure. Statements of opinionscan be actionable when one of the above factors is absent.

Tortious Interference with business relationships can implicate First Amendmentissues

If a company views a communication as part of an effort to undermine their business,tortious interference claims are always available.The elements of tortious interference with a business relationship are:(1) the existence of a valid business relation or expectancy; (2) knowledge of therelationship or expectancy on the part of the interferer; (3) an intentional interference

inducing or causing a breach or termination of the relationship or expectancy; and (4)resultant damage to the party whose relationship has been disrupted."Tortious interference with business relations may be caused by defamatorystatements."

. A public figure plaintiff must still allege sufficient facts to show that thealleged statements were made with actual malice.

ANONYMOUS BLOGGING

This is such a new area in the law!John Doe v. Cahill, a case out of Delaware, is a much referenced case on the subject of anonymous blogger liability. “The Cahill Standard” requires that the plaintiff seekingdiscovery of the identity of anonymous online speakers first gives notice to the speaker.Also, the plaintiff must satisfy a “summary judgment” standard and show that thestatements were “statements of fact” and that all the elements of the claims are met.Huh?If an anonymous blogger/commenter/tweeter, etc makes a false communication about aperson or company, and the statement was presented as a statement of fact, the injuredparty can file a lawsuit against “John Doe” defendants and eventually obtain the identity.

What’s a “Statement of Fact?”

Generally, a statement is a “statement of fact” if it’s capable of being proven true orfalse. Whether a product works or doesn’t work, for example, is provably true or false.

Anonymous Speech

First, the First Amendment protects anonymous speech. See Buckley v. Am.Constitutional Law Found., 525 U.S. 182, 200 (1999). The Supreme Court has notedthat “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio ElectionsComm’n, 514 U.S. 334, 357 (1995). Indeed,

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.”

Second, the protections of the First Amendment extend to the Internet. See Reno v.ACLU, 521 U.S. 844, 870 (1997). Courts also recognize that anonymity is a particularlyimportant component of Internet speech.

“Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas [;] … the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.”

Doe v.2 The Mart.com, Inc., 140 F.Supp.2d 1088, 1092, 1097 (W.D.Wash.2001).