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Defamation FAQ

  1. What is defamation?
  2. What are the elements of a defamation claim?
  3. Is truth a defense to defamation claims?
  4. Can an opinion posted by a third party web site user be defamatory?
  5. What is a statement of verifiable fact?
  6. What is the difference between reporting on public and private figures?
  7. Who is a public figure?
  8. What if a site wants to report on a public controversy?
  9. Does a forum or blog have the same constitutional protections as mainstream media?

Internet businesses frequently ask law firms to prepare or evaluate web site content in order to provide an opinion on whether the content is defamatory, and if so, what are the legal remedies or defenses for the allegedly defamatory content. In general, site providers, forum providers, moderators and other “intermediaries” who allow a third party to post content are not liable for allegedly defamatory posts by a user. That is, Section 230 provides a defense to liability, that is, a so-called “safe harbor” provision for an “interactive computer service” accused of being legally liable for alleged defamatory content posted by its users. With that said, however, there is a caveat because Section 230 does not always protect the provider or the “intermediary” when site authors the commentary or alters a posting to change the third party posted content beyond its original expression.

Below are some of the more frequently asked questions and answers (FAQs) about defamation. Please note that these FAQs are not to be construed as legal advice, nor should it be relied upon or otherwise substituted in place of seeking legal advice from qualified counsel.

What is defamation?

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.

What are the elements of a defamation claim?

To establish a defamation claim, the following must be shown:

  1. a publication to one other than the person defamed;
  2. a false statement of fact;
  3. that is understood as

a. being of and concerning the person defamed; and
b. tending to harm the reputation of the person defamed.

  1. If the person defamed is a public figure, he or she must also prove “actual malice”.

Is truth a defense to defamation claims?

Yes. Truth is an absolute defense to a defamation claim. But keep in mind that the truth may be difficult and expensive to prove.

Can an opinion posted by a third party web site user be defamatory?

No. Section 230 of the CDA protects ISPs and “intermediaries” from defamation claims. However, the allegedly defamed person may still have an action against the user who posted the allegedly defamatory comment and merely labeling a statement as an “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. Some 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, and these courts considered the context of the remark to consider if the statement was likely to be understood as an opinion rather than an assertion of fact dressed up as an opinion.

What is a statement of verifiable fact?

A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his/her spouse.

What is the difference between reporting on public and private figures?

A private figure claiming defamation only has to prove that one acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement. A public figure must show “actual malice” – that the allegedly defamatory statement was published with either knowledge of falsity or in reckless disregard for the truth.

Who is a public figure?

A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures – a government employee, a senator, a presidential candidate – someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his/her view across. Note that business are not always public figures. Rather, a business is judged by the same standards as individuals.

What if a site wants to report on a public controversy?

Many jurisdictions recognize a “neutral reportage” privilege, which protects “accurate and disinterested reporting” about potentially libelous accusations arising in public controversies. For example, as explained by one court, “[t]he public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.”

Does a forum or blog have the same constitutional protections as mainstream media?

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.” In addition, Section 230 provides a defense to liability, that is, a so-called “safe harbor” provision for an “interactive computer service” accused of being legally liable for alleged defamatory content posted by its users.

Last Modified: December 5th, 2009