Libel Online

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Online libel is the the written publication of a defamatory statement on the internet[1]. In common law, defamatory statements are those which are false, harmful to the reputation of those they are about, published to a third party, and made intentionally or at least negligently[2]. Libels made online are especially harmful because the defamatory statements can be seen around the world. The threat of libel suits are sometimes used to silence criticism online, even when no libel is committed.

Elements of libel

Defamatory

In order for a statement to be libelous, it must be defamatory. Defamatory statements are those which harm the reputation of the subject, so as to lower their respect in the community or prevent people from doing business from them.[3] Classic examples of libelous statements include those that accuse someone of committing a crime, of being incompetent in their job, or of having a serious disease.[4] In determining if a statement is defamatory, courts look at the context in which a statement is made. Given the informal and often hyperbole-filled nature of internet communications, it tends to be more difficult to prove that a statement made online is libelous. [5]

False

In order to be libelous, a statement must also be false. That is, a libelous statement must include an untrue statement of fact about its target. [6] This means that opinions, no matter how defamatory, cannot be libelous. However, if an opinion implies an unstated underlying fact, then the opinion may be found to be libelous. [7]

Actual Malice Exception

In 1964, the United States Supreme Court decided that the First Amendment applied to libel cases in New York Times v. Sullivan. [8] The result of New York Times and its progeny is that public officials and public figures must show “actual malice” to win a libel case. “Actual malice” means that the libeler knew that the statement in question was false, or at least had serious doubts as to its accuracy. [9]


Noteworthy Instances

Doe I v. Individuals

Several anonymous posters on the website autoadmit.com posted almost two hundred comments about a student at Yale Law School, insinuating an extreme sexual history and claiming that she abused heroin and had an STD. Doe I v. Individuals, 561 F.Supp.2d 249, (D. Conn. 2008) The student in question, known as Jane Doe II, sued for libel, and sought a court order to reveal the identities of her anonymous libelers. The court ruled that she could obtain the identities, as she was likely to win her case. The speech in question was likely to be found liable, as “any discussion of Doe II’s sexual behavior on the internet tends to lower her reputation in the community, particular in the case of any potential employers who might search for her name online.” Doe I v. Individuals, 561 F.Supp.2d 249, (D. Conn. 2008)

Union Street Guest House

Similar to an actual libel case, Union Street Guest House, a bed & breakfast in New York included a clause in their contract that said they would charge a fee for any negative reviews left online by their guests. After a couple left a negative review and was charged $500, the backlash resulted in the bed & breakfast backing down.[10] Although Union Street Guest House never threatened to sue for libel, this is similar to how other businesses try to use libel threats to get removals of negative, although protected, reviews.


Ethical Concerns

Anonymity & Harm

Libel is inherently an ethical problem because it is the intentional, or at least negligent, harming of others. Harm to reputation can have severe social and economic consequences for the party libeled, especially given the public and permanent nature of the internet.[11] As such, libelers inflict real injury to their victims. Libelers online tend to do so anonymously, or through pseudonyms. This anonymity makes it hard for libel victims to identify and sue those who defame them. [12] These anonymous defamers use the powerful tool of anonymity to inflict harm without facing repercussions.

False Libel Claims & Speech Restriction

Libel lawsuits have the potential to lead to large damages, so just the threat of a libel action can silence critics. Businesses which are the recipients of negative reviews or people who are insulted online sometimes threaten libel lawsuits, even though the comments in question are clearly not libelous. The bad-faith threat of a lawsuit can stifle discourse and stop people from expressing their opinions. In response to this concern, several states have passed laws called anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, which give people falsely accused of libel greater protections in a lawsuit.[13] As libel is an action that requires speech, it is a concern that restrictions on libel may also restrict speech. The United States Supreme Court has noted this, and has taken steps in cases since New York Times v. Sullivan to require courts to consider the First Amendment in libel cases. [14]

Yelp Profiting from Libel

Yelp is a website that allows users to leave reviews for businesses. There are concerns that Yelp profits on libelous or potentially libelous reviews by refusing to remove such reviews unless the business pays a fee.[15] Courts have found that Yelp is not breaking the law in this practice, nor is it liable for republishing libel. [16] However, it is still seen as an unethical business practice.

References

  1. ↑ Garner, Bryan A and Henry Campbell Black. 2009. Black's Law Dictionary. St. Paul, MN: West.
  2. ↑ American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
  3. ↑ American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
  4. ↑ American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
  5. ↑ Doe v. Cahill, 884 A. 2d 451 (Del. 2005)
  6. ↑ American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
  7. ↑ American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
  8. ↑ New York Times v. Sullivan, 376 U.S. 254 (1964)
  9. ↑ St. Amant v. Thompson, 390 U.S. 727 (1968)
  10. ↑ Siegler, Mara, and Bruce Golding. "Hotel’s $500 Bad-review Fee Blows up in Its Face." Page Six. August 4, 2014. Accessed March 15, 2019. https://pagesix.com/2014/08/04/hotels-500-bad-review-fee-blows-up-in-its-face/?_ga=1.179279844.1598730873.1401902566.
  11. ↑ Ben Quarmby, "Protection from Online Libel: A Discussion and Comparison of the Legal and Extrajudicial Recourses Available to Individual and Corporate Plaintiffs," New England Law Review 42, no. 2 (Winter 2008): 275-298
  12. ↑ Doe I v. Individuals, 561 F.Supp.2d 249, (D. Conn. 2008)
  13. ↑ "Anti-SLAPP Statutes and Commentary." Media Law Resource Center. Accessed March 15, 2019. http://www.medialaw.org/topics-page/anti-slapp?tmpl=component&print=1.
  14. ↑ New York Times v. Sullivan, 376 U.S. 254 (1964)
  15. ↑ Mintz, Steven. "Is it Ethical to Allow Yelp to Manipulate Ratings Based on Ad Purchase?". Workplace Ethics Advice. http://www.workplaceethicsadvice.com/2014/10/is-it-ethical-to-allow-yelp-to-manipulate-ratings-based-on-ad-purchase.html (retrieved 15 March 2019)
  16. ↑ Mintz, Steven. "Is it Ethical to Allow Yelp to Manipulate Ratings Based on Ad Purchase?". Workplace Ethics Advice. http://www.workplaceethicsadvice.com/2014/10/is-it-ethical-to-allow-yelp-to-manipulate-ratings-based-on-ad-purchase.html (retrieved 15 March 2019)
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