Q&A: Online Defamation

By Steven P. Aggergaard
Attorney at Law
saggergaard@yahoo.com

Anyone who communicates risks being accused of defamation. This includes Internet communicators. Although the Internet is a global medium, defamation law is state law, and it likely will remain that way for a long time.  In other words, each state has its own defamation laws, and each nation treats defamation differently.

What’s a Minnesota Internet communicator to do? First, stick to the issues and avoid personal attacks. Second, if you’re planning to criticize someone who’s not in the limelight, think twice about whether the risk is worth it. Third, when in doubt or if you get in trouble, contact a lawyer.

If you have been the one defamed online, ask yourself whether you can prove that the posting is false and not just outrageous or nasty, that someone actually read it, and that it has harmed your reputation.  If you answer yes to those questions, it might be worth calling a lawyer.

What follows is not legal advice. As with any legal issue, each set of facts must be analyzed under the specific law that applies.  If you have Minnesota-related legal concerns, shoot me an e-mail (saggergaard@yahoo.com) or give me a call (651-402-8505).  I am happy to listen to your concerns free of charge.

What is “defamation”?
In Minnesota, a statement is defamatory if it is false, harms a person’s reputation or esteem in the community, and is communicated to a person other than the person alleging defamation.

What is “libel”?
For present purposes, libel is synonymous with defamation. Written defamation traditionally was known as libel, and spoken defamation as slander. But today, libel law applies to media communicators.

What is false, anyway?
Good question. Only a jury knows. The person suing for defamation–the plaintiff–must prove falsity in court.

But there’s no such thing as false opinion, right?
Right. But there’s big difference between stating that “I think drunks are scum” and “I think my neighbor, Joe Blow, is scum for being drunk all the time.” The question that a Minnesota court will determine is whether a statement “implies the existence of fact that can be proven true or false.”

What harms reputation?
Anything false about a person’s business, trade, profession, or (lack of) criminal record are major danger points because those are areas where Minnesota law presumes that harm to reputation has occurred. This rule probably applies to falsities posted on even the most obscure of web sites. If the plaintiff can print it out or save it to a disc, she probably can sue for defamation, and the assumption might be that someone has read it. As for other aspects of reputation, such as your neighbor’s (lack of) sobriety, the plaintiff usually needs to prove harm — that someone read it and now thinks less of your neighbor.

What constitutes “communication”?
Anything posted on the Internet.

If I defame someone in Iowa, can she sue me?
Probably. But Minnesota law might require the plaintiff to come to Minnesota to do it. The law in this area is in flux, and no Internet communicator should assume that out-of-state residents are fair game. It costs a lot to litigate who gets to sue whom and where.

What about Canada? Can a Canadian sue me?
Canada and most countries have defamation laws, and the general rule is that if you have no contact with a certain jurisdiction, you cannot be held to answer for its laws. But beware! In 2002, Australia’s highest court held that its defamation law extended to a United States Internet publication.  This is scary.

Could the president sue me for defamation?
Such a lawsuit would be highly unlikely. The president is the most public of public officials, and it is extremely difficult for such persons to maintain defamation actions. Besides, he could call a news conference to refute your falsities, and writers and broadcasters much more powerful than you would show up. But the Secret Service might come knocking …

Could the governor successfully sue me?
Most likely, no. Not as long as you post only on matters of public concern. But even the governor could try to sue over defamatory statements about his character if he could prove “actual malice”-that you knew the statement was false, recklessly disregarded its truth or falsity, or “entertained serious doubts as to the truth of her statements.”

This standard, the “actual malice” standard, is a key part of defamation law. So even false statements are protected by law?
Yes, sometimes. Oftentimes, actually. Only in America. Enjoy it while it lasts.

Why is this?
In 1964, the United States Supreme Court decided a landmark case, New York Times v. Sullivan, that prevents states from enacting libel laws that unduly restrict debate about public officials. But Minnesota had such protections decades before the United States Supreme Court required us to.

So how about the mayor, could she sue me?
Probably not, if you limit your comments to issues of public concern. Public officials subject to the “actual malice” rule have included Minnesota prosecutors, police officers, deputy sheriffs, probation officers, and even members of grand juries. But, again, it is mportant to comment only on the public issue, not the person’s character.

Could the mayor’s husband sue me?
Probably, unless the husband has voluntarily entered the limelight on a particular issue and your posting concerns that issue.

What about Minnesota celebrities?
In Minnesota, the “actual malice” rule applicable to public officials has been applied to celebrities and other public figures who, in the words of the Minnesota Supreme Court, “voluntarily enter a public controversy.” So, again, if you keep to the issue, the chance for being found liable for defamation decreases.

What about my neighbor? Potential plaintiff?
If your neighbor is not a public official or public figure, the actual malice rule probably would not apply. Your neighbor, or boss, or ex-husband could sue you for posting a false communication that harms her reputation or lowers her esteem in the community–even if you did not know the communication to be false. The key question under Minnesota law is whether a “reasonable person” in the speaker’s shoes would have known or should have known that the statement was false. A jury decides this issue.

But my neighbor blogs on politics, and he’s wrong, wrong, wrong. Can he sue me if I post a comment?
Well, maybe not. Under Minnesota law, the “actual malice” standard might apply when the person alleging defamation is a “limited purpose public figure”–someone who, according to the Minnesota Supreme Court, plays a “meaningful role” in an existing controversy.

When is a controversy “existing,” and what is meant by “meaningful role”?
Your post cannot have caused the controversy. And your target’s role in the controversy is “meaningful” when she has “voluntarily injected” herself into the controversy, or where she achieved “special prominence” in the debate such as by “trying to influence the outcome of the controversy.” It’s all very facts-specific.

Who decides who’s a public figure or public official?
A judge, and not a jury. In Minnesota, most libel cases are dismissed from court or settled out of court after the judge answers this key question. But the judge’s decision can be appealed, and appeals are expensive.

I’m cutting and pasting material from other web pages and linking to other sites. Any danger?
Yes, there is danger. If you know that a posting is false but post or link to it anyway, you risk committing defamation by “republication.” Traditionally, Minnesota courts have examined whether the original source was “reputable,” such as a wire service that distributes stories from newspapers or magazines with decent reputations. It is unclear how this standard might apply to the Internet.

OK, I’m the one who’s been defamed.  Now what?
Suing for defamation is not easy and the lawsuits often do not succeed.  But defamation law is there for a reason, so if you have been subject to a false communication that someone has read and that has harmed your reputation, you should consider calling a lawyer.

Actually, my business has been defamed.  Can I sue?
Yes. In Minnesota, any organization can sue for libel. But our state’s law is somewhat unusual because it requires corporate plaintiffs to prove actual malice. If the corporation can prove that, the defendant must prove that the material “concerns matters of legitimate public interest.” This rule stems from a 1985 Minnesota Supreme Court case, where the court encouraged the news media “to probe the business world to the depth which is necessary to permit the kind of business reporting vital to an informed public.” Whether Internet communicators will be so encouraged is not known.

I’m running for office. Can’t I post whatever I want?
No. But once elected to the Minnesota Legislature, you probably cannot be sued over postings related to your official duties. It is unclear whether this rule applies to other elected officials.

I’m posting anonymously. Safe?
This is a thorny question, and there is no clear answer in Minnesota. Someday a Minnesota court will be asked to force a blog-hosting site or an Internet service provider to reveal an anonymous Internet communicator’s identity, particularly if criminal activity is involved. Soon there will be real litigation on this issue involving real Internet communicators paying real bills, so be careful!

My posts don’t refer to anyone by their real name. Safe?
If the defamation plaintiff can prove that the average reader could discern his identity even though no real name was used, there might be liability.

I have been libeled by someone who posted anonymously.  Now what?
If the false communication has been widely read and is really bad — if it accuses you of a crime, or of being a “pedophile,” or of being grossly unprofessional — it might be worth the time and money to have a lawyer play hardball by trying to compel the Internet service provider or blog-hosting site to reveal the poster’s identity.

What about posting pictures?
Internet pictures raise “libel by implication” issues. For example, if you include a chaste person’s picture among a group of convicted prostitutes or johns, this would be libelous. The more common issues concerning Internet images raise issues involving invasion of privacy, obscenity, and criminal law.

How about posting audio?
Expect Minnesota libel law to be applied to podcasts that are produced and/or downloadable in this state. In other words, if you engage in online oral slander, lookout for a lawsuit.  As for downloads that violate copyrights because they constitute recordings that someone else owns, that is a separate issue covered by federal copyright law.

I want to scan in a public document and link to it. Any defamation danger?
Probably not, unless you acted with actual malice, i.e. you knew the document was false or acted with reckless disregard for its truth or falsity. The general rule in Minnesota is that someone cannot sue for defamation over a statement contained in a public record. But depending on how you use the public record, there might be liability for invasion of privacy in Minnesota or another state.

Can I swear and use dirty language?
Yes. Profanity is a matter of taste, not legal liability for defamation. But good luck explaining to the judge (or worse yet, the jury) why use chose the words you did.

I got it wrong, but I corrected the post or removed it. Safe?
Maybe. But as anyone who uses computers knows, nothing is ever truly deleted. A few years back, a Milwaukee radio host posted and then removed a listener’s defamatory e-mail message on his blog, but he was sued for libel after the posting showed up in an Internet search engine. Ouch!

Can’t I just post a correction and apologize?
That might work. A century-old Minnesota law protects newspapers from most libel damages when they print “retractions.” It is unclear whether this law applies to Internet newspapers, let alone blogs. The law needs to be rewritten.

Somebody’s threatening to sue me! Help!
Take it seriously! Defamation is “personal injury,” and personal injury attorneys often take cases on contingency. In other words, it might cost nothing to sue, and if the plaintiff prevails the lawyer takes one-third or perhaps 40 percent of the award.  So the person who feels wronged has nothing to lose, and a lawyer has much to gain.  Call a lawyer who knows about defamation law and is Internet-savvy. Be prepared to explain why your posting is true, or at least be prepared to document the steps you took to ascertain the truth. One idea: Print out the Internet browser history that shows you Googled on the topic to check its accuracy before you posted it.

OK, I’m confused. What’s the bottom line? Am I safe if I stick to the issues?
Never lose sight of the First Amendment. Its ultimate purpose is to foster meaningful dialog about public issues. From the 1700s through World War I, such dialog came from “pamphleteers” who presented their views, often anonymously. Today’s bloggers are yesterday’s pamphleteers, and despite beliefs to the contrary, the First Amendment was designed not to protect Big Media, but to protect the little guy. And there is a little-known and little-used Minnesota law called SLAPP (Strategic Lawsuits Against Public Participation), which permits defamation defendant to seek the lawsuit’s dismissal if the communication was lawful and was “genuinely aimed … at procuring favorable government action.”

© Steven P. Aggergaard • All rights reserved
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