angry manHas someone posted a bad review or blog about you or your business?  Are former employees telling your customers that you are a “scam” or that your products and services are poor? You are probably as mad as a bee in a jar about it. Few things can cause such an acute upset like lies being told about you and your business to others. But can you sue? And, more importantly, should you?

Defamation is defined as the communication of a false statement about another person (or business) that harms the victim’s reputation. The false claim can be made to just one person, or to a group of people. It is not the size of the group that matters; it is the lack of truth that results in damaging a person’’s or business’s reputation.  The point is that they are lying about you to others.

Traditionally, the tort of “defamation” was broken down to written defamation (“libel”) and spoken defamation (“slander”). But for modern purposes, this distinction does not matter much, and both types of statements are included in the same tort.  Libel defamation includes lies written on internet websites, blogs, forums, social media, newspapers, books, and magazines.

People who lie on the internet behind cowardly “anonymous” postings cannot hide, however, if the plaintiff is determined enough. It is possible to bring a lawsuit against unknown persons (called Doe defendants) so that the suing attorney can subpoena the website where the anonymous comment was made.  In response to the subpoena, the website will be compelled to reveal the poster’’s name and other information.  Even if all the website can provide is the IP address of the poster, that IP address can further be traced by subpoenas to Internet Service Providers, back to the computer — and the person — who made it.

When is a Statement Considered Defamation?

Here is the most important thing: you cannot sue for defamation unless you can prove that the statement is a false statement of fact.  Truth is an absolute defense to any defamation case, no matter how insulting or embarrassing the statement.

Complicating this are a few other important rules. First, it needs to be a statement of fact, not opinion. The statement must appear to a reasonable person that it is a true and verifiable statement. However, when a person’’s opinion is added into the statement, the dynamic changes. The distinction between factual statements and opinion is nuanced and often turns solely on a judge or jury’s view of the statement. So, for example, the statement “Monsanto is poisoning people” is a statement of fact that may be defamatory if Monsanto chose to sue. By contrast, the statement “I think that Monsanto is bad” is a subjective statement of opinion and not actionable defamation.  But most statements fall into the hybrid where one can reasonably believe the statement is fact based even if couched as an opinion, and is therefore actionable. So, for example, the statement “In my opinion, after looking at the evidence, Monsanto is a bad company that sells poisonous GMOs” is possibly, but not certainly, defamatory.

And it gets even more complicated when topics of public concern are involved. Statements about the government, celebrities and other newsworthy items not only need to be false, but stated maliciously. That means that the speaker has to know that the statement was false, and made it anyway. Monsanto’s GMO supply and their lobbying efforts with the Federal Department of Agriculture, for example, may be enough of a public concern (even though its a private company) that you would have to be maliciously and knowingly lying about it before liability could attach. In purely private matters, the speaker does not have to know the statement was false to be held responsible for it. So a speaker is probably safe from a lawsuit if he calls the President a “war criminal” but not if he calls his neighbor a criminal.

What Qualifies as Damaging a Person’s Reputation?

You cannot sue for a defamatory statement unless it also harms yours or your business’s reputation. That means that it must be published to another person (writing a bunch of defamatory statements in a private diary does not count) and it must lowers the value of the person or business to others or to the public. The victim as the plaintiff will have the burden of proving damage to their reputation, as well as the amount of damages. So, for example, if a customer does not like your service and lies about the facts of your business online, you will have to prove that the review prevented you from getting new business or other opportunities and money.

Statements that portray the victim’’s morality or integrity in a poor light for a false reason is called “defamation per se and the victim does not need to prove anything other than the false statements were published to another.” Defamation per se statements are usually about a person committing a serious crime, having a sexually transmitted disease, lacking ability or integrity in their work or business, committing adultery, or being promiscuous. Calling a business a “scam” or a “rip off” may fall into this category, depending on the facts.

Should You Sue?

While promoting and doing business on the web has its many benefits, it has also unleashed a new level of defamatory content. Disgruntled former employees or customers may post untruths on blogs or message boards as retaliation or simply to vent. But most of the time, defamation lawsuits will just be a lot of money for little recovery as most people do not have assets to cover the harms they are causing. Lawsuits take a long time, too. And you typically cannot sue the website itself because they have protections as a “forum” by Federal law (so your lawsuit against “Rip Off Report” is likely going to be dismissed, even though Rip Off Report won’t remove demonstrably defamatory content unless you pay them a large fee).

Each incident is unique and the harm, your goals, and the practicalities of the situation should be discussed with your lawyer before you file suit. In addition to defamation lawsuits, there are other protections (especially against former employees) and steps that you can take directly with the website to get content removed.  Don’t just run immediately to the courthouse, or you may not get the right result in the end.

Alicia Dearn

Alicia Dearn

CEO + Trial Lawyer at Bellatrix PC
Ms. Dearn gives sharp and insightful legal counsel to entrepreneurs and employers so they can advance their businesses fearlessly. She fixes legal problems.
Alicia Dearn