Building and growing your author platform requires you to be very active and vocal online, and this opens the door to two outcomes you will want to avoid: being guilty of online defamation and libel yourself, or being the victim of someone else’s online defamation and libel. Most people seem to think that anything published on a website or blog is automatically classified as opinion, and is therefore protected free speech. They’re wrong. Bloggers have been hit with millions of dollars’ worth of libel judgments, and there are entire legal practices specializing in internet defamation.
What Constitutes Libel?
I’ll open with the usual disclaimer: I am not an attorney and nothing in this article should be construed as legal advice. I can sure quote the heck out of people who are attorneys and legal experts, though. Nolo Press, the US’s oldest and most respected provider of legal information for consumers and small businesses, defines libel as, “An untruthful statement about a person, published in writing or through broadcast media, that injures the person’s reputation or standing in the community.”
For those of you living across the pond, Website-Law.co.uk has this to say about defamation and libel:
Defamation is all about reputation, and in particular about statements which damage others’ reputations. The English courts have not settled upon a single test for determining whether a statement is defamatory. Examples of the formulations used to define a "defamatory imputation" include:
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an imputation which is likely to lower a person in the estimation of right-thinking people;
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an imputation which injures a person’s reputation by exposing him to hatred, contempt or ridicule;
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an imputation which tends to make a person be shunned or avoided.
The law of libel is concerned with defamatory writings; whereas the law of slander is concerned with defamatory speech. There are some differences in the laws relating to slander and libel…defamatory statements on a website will be libelous rather than slanderous…
So any online statements you make, or which are made about you, fitting the above criteria are in violation of U.S. and U.K. law and subject to prosecution. Most Western countries have defamation and libel laws that read similarly, but as you’ll see later in this article, the defamer’s country of residence need not be a barrier to the victim in pursuing a charge of libel.
What Doesn’t Constitute Libel?
Bear in mind, not every negative or potentially damaging statement made online or in print constitutes defamation in the legal sense. The first and best defense against a claim of defamation is simply that the statement in question is true. The next go-to defense is often that the statement in question is a statement of opinion, because in most cases such statements are generally protected free speech (see next section for information on the exceptions). For example, imagine Johnny Author, the author of a book about business ethics, has a criminal record for fraud and someone shares this information online or in print. It’ll certainly injure his reputation and standing in the community, but it’s not defamation because it’s true. Now, suppose he was tried for fraud but found innocent of all charges.
Web Troll A blogs, “Anyone who trusts anything Johnny Author says is a fool; everyone knows he was arrested for fraud last year.”
Web Troll B blogs, “Johnny Author is a liar and a fraud.”
Web Troll A’s statement probably has the most potential to do damage, but surprisingly, Web Troll B’s statement is the one of these two that more clearly qualifies as libel because it’s the only one making “an untruthful statement” about Johnny Author. Web Troll A’s remarks are a mixture of opinion and fact.
How Not To Be Guilty Of Libel Or Internet Defamation
The easiest remedy is prevention: don’t publish nasty comments about other people on your website or blog. Even if the things you’re saying are true, sharing them only makes you look like a mudslinger and a gossip—hardly the sort of person with whom your peers or people in the publishing industry will want to associate. If you have a legitimate reason for making negative remarks about some person, to blog about a specific issue related to that person for example, then don’t refer to that person by name and leave out identifying details.
Couching your statements in explicit qualifiers like, “In my opinion,” “If you asked me I’d say,” and “It seems to me that,” etc., may strengthen your defense if you get hauled into court, but even a statement explicitly labeled as opinion can be legally actionable as libel if the court concludes any reasonable person reading the statement would interpret it as asserting statements of verifiable fact, or as implying that facts exist to support the defamatory statement. Only an attorney versed in internet defamation can offer an opinion as to whether or not your online statements would be likely to pass this test.
Also, none of these cautionary measures will grant you absolute immunity from a charge of libel or internet defamation here in the U.S., where anyone can attempt to sue anyone for anything, so why not make your life safer and easier by just avoiding such statements altogether?
My Own Internet Defamation Story
I was prompted to write this article after being subjected to internet defamation. It hadn’t previously occurred to me that internet defamation is an author platform issue. As damaging as it can be, it’s something most authors haven’t thought about and would have no idea how to deal with.
At first glance it would seem my case was hopeless. The defamer posts under a pseudonym, lives in another country, and posted the defamatory statements on his/her own site. Despite all these obstacles I succeeded in getting the defamatory material removed or blocked from public view, and so can you.
When You’ve Been Defamed Online
If you believe you’ve been defamed online, you need to ask yourself:
- Is the offending material really libel, not statements of fact or non-actionable opinion?
- Is the offending material likely to be seen by large numbers of people?
- Is the offending material truly likely to damage your reputation?
It’s not usually worth taking action to get the defamatory material removed unless the answer to all three of these questions is a resounding YES, and the defamatory remarks are being made in reference to you under your legal name, pen name, or business name. Defaming remarks being made about your online alias aren’t usually worth fighting unless your online alias is clearly linked with your legal name, pen name or business name (i.e., in a user profile, on your own site, Twitter profile, etc.)
Questions #1 and #3 can only be answered by you (possibly with the input of an attorney, in the case of #1), but you can get the answer to #2 using some free, online tools. Run the URL of the website—not the specific page, but the main website URL—where the defamatory material is posted through these two tools to view traffic statistics and other data about the site:
http://www.alexa.com/siteinfo (Site Lookup box)
Even if you’re not absolutely certain the defamatory statement(s) will pass the ‘actionable opinion’ test, if you feel very strongly that your reputation among your peers, readers and/or the publishing community is being damaged, it’s still probably worthwhile to take action to the extent you can do so without getting an attorney involved. Most people would rather take simple steps to make a problem go away on their own than risk legal action, so the threat of that risk can often get results.
Chain Chain Chain, Chain of Legal Liability
Let’s say you’ve decided to take action. If you ask the defamer to remove the objectionable material directly, your request isn’t likely to be honored and will most likely generate more online abuse and exposure. However, that isn’t the end of the story. Even if the defamer posts under a pseudonym, lives in a foreign country, or is defaming you on his or her own site, so long as the company that hosts the site is based in a country with libel laws, you’re still in business.
The defamer is just one of the people in the chain of legal liability for internet defamation, and certain others in the chain are usually easier for you to get to—and have a lot more to lose. The chain consists of every person or company involved in the creation, publication and presentation of the offending material. This group may include:
- Discussion group administrator
- Site administrator
- Site editor
- Site owner
- Blog or Site platform/software provider
- Content aggregator
- Site hosting company
You’ll probably find you’re wasting your time lodging a complaint with parties #1 – #4, even if the site or discussion board in question has specific prohibitions against defamation in its Terms of Use (ToU) or Acceptable Use Policy (AUP). All of these people are usually ignorant of the law, and will tend to dismiss your complaint. Worse, if any of them are pals with the defamer, your complaint will likely backfire.
There are certain legal protections that tend to insulate #5 and #6 from most claims relating to the objectionable or illegal use of their services by individuals, so these are also usually dead ends. And this brings us to #7: the hosting company.
(continued, next page; read on to learn how to get defamatory statements & reviews removed)