Libel Online
Libel Online is the written publication of a defamatory statement on the internet[1]. It differs from slander, as slander is characterized by oral defamation[2]. 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[3]. Libels made online are especially harmful because the defamatory statements can very easily reach large audiences. The threat of libel suits is sometimes used to silence criticism online, even when no libel is committed. Libel introduces a number of ethical concerns including anonymity and harm, as well as concerns with false libel claims that limit speech. There are also some companies who attempt to profit from libel online, most notably Yelp, a crowd-sourced review forum.
Elements of libel
Defamatory
To be considered libelous, the statement must be defamatory. Defamatory statements are characterized by their ability to harm the reputation of the subject, so as to lower their respect in the community or prevent people from doing business with them.[3] Classic examples of libelous statements include those that accuse someone of committing a crime, being incompetent in their job, or of having a serious disease, typically under false premises.[3] 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.[4]
Trade Libel
Trade Libel, also known as commercial disparagement, focuses on the statements regarding an individual's business or property. According to the Restatement (Second) of Torts 623A, one who publishes an incorrect statement harmful to someone else's business is potentially liable for the losses incurred that resulted (often times this is pursued in the form of monetary gains).[5] This is only true if one intends to publish that statement and make it libelous online, and there is knowledge that the statement is false. The Restatement (Second) of Torts 623A is recognized in all states but Alabama, Georgia, Kansas, Kentucky, Maine, Tennessee and Washington.
False Light
In order to be libelous, a statement must be shed in false light. That is, a libelous statement must include a highly offensive false statement of fact about its target.[3] This means that opinions, no matter how defamatory, may never be considered libelous. However, if an opinion implies an unstated underlying fact, then the opinion may be found to be libelous.[3]
Actual Malice Exception
In 1964, in the 'New York Times v. Sullivan' case, the United States Supreme Court decided that the First Amendment applied to libel cases. [6] The result of the case was 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. [7]
Libel Per Se
Libel per se applies when there is no further explanation needed because it is so clear. Libel per se statements are often harmful to someone's character, occupation, or livelihood. Some examples of statements that are libelous per se are statements that falsely charging a person with a crime or falsely accusing someone of having an infectious or deadly disease [2]
Noteworthy Instances
Doe I v. Individuals
Several anonymous posters on the website autoadmit posted almost two hundred comments about a student at Yale Law School. The comments claimed that she had an extreme sexual history, that she abused heroin, and had an STD. 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 comments in question were 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, particularly in the case of any potential employers who might search for her name online.” [8] These comments can also be categorized as Libel Per Se, since they are falsely accusing someone of having a deadly disease.
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.[9] The review left was an opinion, and thus could not be libelous as a matter of law. 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, as well as the speed by which information is spread across the web.[10] As such, libelers inflict real injury, sometimes mental and physical, to their victims.
Libelers online tend to comment anonymously, or through pseudonyms. This anonymity makes it hard for libel victims to identify and sue those who defame them. [8] As Kathleen Wallace says, anonymity is "noncoordinability of traits in a given respect". [11] The inability to connect traits and thus identify online defamers means that victims of online libel often must pursue a variety of options to find their libelers. In Doe I v. Individuals, the plaintiff had to go to court to unveil the identities of her anonymous defamers before she could actually sue them. [8]. While ultimately the names of those who inflicted harm upon her were revealed, she had to go through more mental energy than she already had endured, in going to court. These anonymous defamers use the powerful tool of anonymity online to inflict harm without facing repercussions, and it is difficult, costly, and mentally grueling to unmask them.
The anonymity of online libelers makes them not only hard to track and punish, but may also contribute to the libel in the first place. Studies have shown that anonymity online may lead to incivility in online discourse. [12]. On the contrary, sometimes, as in Doe I v. Individuals, the victims of the libel were anonymous before being libeled, and the libel removed the protection of anonymity. Although anonymity can protect people from being libeled, as a defamatory statement about an anonymous person is not libelous, when the victim is named, they lose the protection of anonymity. The libeler can use the same anonymity to avoid consequences for their actions.[13]
Privacy
Libel statements and the resulting response can both infringe on the target's rightful privacy. Many libel statements about a specific person involves private information that would not be released to the public without the original release of the libel. If the libel statement reaches a large audience, additional questions about its origin and validity will be directed to the person under attack. This results in the person's privacy being violated multiple times. A great example of this effect is the infamous iCloud leaks of celebrity photos, where hundreds of celebrities had nude photos leaked to the internet. In the aftermath of the release, all celebrities effected were asked about the validity of the photos. Some confirmed they were real but were disgusted that the leak became so popular, while others adamantly denied that the photos of them were legitimate. Regardless of celebrity response, their privacy was violated by the original libel in the release of their photos, and again when the media barraged them with questions about the leak. Celebrities affected by the leak will be followed by the information and photos that came out of the scandal for the rest of their lives.
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, as with Union Street Guest House [14]. The bad-faith threat of a lawsuit can stifle discourse and stop people from expressing their opinions.
The problem with these false libel claims is not necessarily that the speech in question is not libelous. It is that filing such lawsuits, or threatening to sue is, according to Harry Frankfort, bullshit. [15] Often, claimants do not care whether or not they would win in court, or whether the statement is actually defamatory, or is true, or is a matter of opinion. They make a claim to silence critics, rather than to vindicate their legal interests. They are not misrepresenting facts; often they can show what was said about them.[15] Rather, they misrepresent their purpose. False libel claims are often not just false, but bullshit made to stop people from making valid complaints.
In response to this concern, several states have passed laws called anti-SLAPP (Strategic Lawsuit Against Public Participation) laws which give people who have been falsely accused of libel larger protections in a lawsuit.[16] As libel is an action that requires speech, it is a concern that restrictions on libel may also restrict freedom of 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. [17]
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.[18] Courts have found that Yelp is not breaking the law in this practice, nor is it liable for republishing libel. [18] However, it is still seen as an unethical business practice.
This practice is problematic because it is designed into Yelp's business model. Since Yelp makes money from allowing businesses to take down negative reviews, it has powerful incentives to ensure that negative or potentially libelous reviews stay posted for businesses that have not paid to remove them. This creates a bias in favor of businesses that have paid Yelp or those that have the means to. [19] Even if this design was accidental, it would be problematic. But since it is intentionally built into Yelp's systems, it is considered unethical. [19]
References
- ↑ Garner, Bryan A and Henry Campbell Black. 2009. Black's Law Dictionary. St. Paul, MN: West.
- ↑ 2.0 2.1 Electronic Frontier Foundation. "Online Defamation Law"
- ↑ 3.0 3.1 3.2 3.3 3.4 American Law Institute. Restatement Of the Law, Second, Torts 2d. St. Paul, Minn. :American Law Institute Publishers, 1965.
- ↑ Doe v. Cahill, 884 A. 2d 451 (Del. 2005)
- ↑ Defamation Basics, Practical Law Practice Note w-001-0437 (2019)
- ↑ New York Times v. Sullivan, 376 U.S. 254 (1964)
- ↑ St. Amant v. Thompson, 390 U.S. 727 (1968)
- ↑ 8.0 8.1 8.2 Doe I v. Individuals, 561 F.Supp.2d 249, (D. Conn. 2008)
- ↑ 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.
- ↑ Quarmby, Ben, "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
- ↑ Wallace, Kathleen. "Online Anonymity," in The Handbook of Information and Computer Ethics, ed. Kenneth Himma and Herman Tavani (John Wiley & Sons, 2008)
- ↑ Singer, J. B., & Ashman, I. (2009). “Comment is free, but facts are sacred”: User-generated content and ethical constructs at theGuardian.Journal of Mass Media Ethics, 24(1), 3–21.
- ↑ Wallace, Kathleen. "Online Anonymity," in The Handbook of Information and Computer Ethics, ed. Kenneth Himma and Herman Tavani (John Wiley & Sons, 2008)
- ↑ 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.
- ↑ 15.0 15.1 Frankfort, Harry. "Truth, Lies, and Bullshit" in The Philosophy of Deception, ed. Clancy Martin (Oxford University Press, 2009)
- ↑ "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.
- ↑ New York Times v. Sullivan, 376 U.S. 254 (1964)
- ↑ 18.0 18.1 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)
- ↑ 19.0 19.1 Brey, Phillip. "Values in technology and disclosive computer ethics" in The Cambridge Handbook of Information and Computer Ethics ed. Luciano Floridi. (Cambridge: Cambridge University Press, 2010)
