The defamation definitions, laws, and requirements can be overwhelming.
It is difficult to know where to start when reporting libel. But do not worry!
In this extensive guide, you will see:
- The most common types of online defamation, legal definitions, and terms;
- The most popular defenses against online defamation claims;
- How to file a defamation suit and win;
- Ways to deal with defamation and respond to it, learning the six keys to the Right to be Forgotten;
- The most important and frequent questions that people have about hiring lawyers, and experts in defamation.
This guide is the result of our company’s experience in cases of online defamation and data protection.
It also comes from our practice representing thousands of individuals and businesses worldwide targeted by online attacks.
We educate victims of online defamation and harassment to understand their rights and legal remedies, defend themselves, and restore their reputations.
What is online defamation?
Defamation is a false statement made to a third party that causes damage to the reputation of another person or entity.
Let us deal with online defamation, from two concepts collected in the Health and Safety Executive of the United Kingdom:
- Such a statement constitutes a libel if it is:
“Published (publication, for these purposes, is simply the communication of the defamatory matter to a third person); and in writing, print or some other permanent form.”
- A statement will amount to a slander if it is
“Published; and made orally or in some other transient form.”
Defamation that occurs online is known as ‘Online Defamation’ or ‘Internet Defamation’.
Other lesser-known terms used to describe defamation include:
- Vilification that the Cambridge Dictionary defines as follows:
“The act of saying or writing unpleasant things about someone or something, in order to cause other people to have a bad opinion of them”.
- Calumny, a concept that the Cambridge Dictionary explains as:
“A statement about someone that is not true and is intended to damage the reputation of that person”.
- Disparage, which Cambridge Dictionary means is:
“To criticize someone or something in a way that shows you do not respect or value him, her, or it”.
Similarly, there is also a definition for one of the parties involved, defined as a defamer or slanderer.
The Government of the United Kingdom collects the annual number of libel suits.
Since 2014, when the Defamation Act 2013 came into effect, the number has been stable, hovering around 150 lawsuits.
The exceptions are, that in 2018 and 2019, the number grew to 265 and 323.
Online Defamation of Business
Like individuals, defamed companies also have legal claims and remedies available under defamation laws.
The legal person has recognized their right to honor and their image, albeit slightly different from the natural person.
Defamation laws in the United States
One of the common questions that victims often ask is whether online defamation is a crime. The answer is simple: yes.
The most common way someone can end up in jail for defamation is behavior that violates a related criminal law or a previously issued restraining order or injunction ordering arrest.
It is also essential to understand that there are no federal criminal laws in the United States related to defamation. Everything is encoded by state.
Defamation, by state
As of November 2021, only thirteen states have criminal laws:
- Idaho (Idaho Code 18-4802);
- Louisiana (La. Rev. Stat. 14:47) ;
- Michigan (Mich. Comp. Law 750.370);
- Minnesota (Minn. Stat. 609.765);
- Montana (Statute 45-8-212);
- New Hampshire (NH Rev. Stat. Ann. 644:11);
- New Mexico (NM Stat Ann. 30-11-1);
- North Carolina (NC Gen. Stat 14-47);
- North Dakota (N.D. Cent. Code 12.2-15-01 (2));
- Oklahoma (21 Okla. Stat. 773);
- Utah (Utah Code Ann. 76-9-404);
- Virginia (VA Code Ann. 18.2-209);
- Wisconsin (Wis. Stat. Ann. 942.01).
In the states mentioned above, defamers can face many consequences, including fines and even imprisonment for up to six months.
Offenders from states without criminal defamation laws can still go to jail and be criminally punished in three situations:
- When they have violated a restraining order;
- They are responsible for contempt of court for violating an order relating to defamatory statements and behavior;
- They are accused of associated crimes, such as sextortion, online harassment, and blackmail.
To be successful in a criminal defamation lawsuit, the plaintiff must prove beyond a reasonable doubt that the defamer knew that the statement in question was false.
Defamation laws in UK
We explain what are the laws that protect online defamation in the United Kingdom:
- Defamation Act 2013;
- Protection from Harassment Act 1997;
- Communications Act 2003;
- EU Regulation 2016/679.
Defamation Act 2013
The Defamation Act 2013 is the legislation of the Parliament of the United Kingdom, which amended the previous defamation law.
It covers issues of the right to freedom of expression and reputation protection.
One of the critical changes in the claim is the existence of severe damage:
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.
The legislation also includes a defense for the operators of the websites, which host the content of a user:
“This section applies where action for defamation is brought against the operator of a website in respect of a statement posted on the website;
It is a defense for the operator to show that it was not the operator who posted the statement on the website”.
Protection from Harassment Act 1997
The Protection from Harassment Act 1997 protects people from harassment.
It will protect all victims, regardless of the source of the harassment: so-called stalking behavior, racial harassment, or antisocial behavior from neighbors.
Communications Act 2003
The Communications Act 2003 is the legislation that replaced the Telecommunications Act 1984.
Article 127 of the law makes it a criminal offense to send an extremely offensive, indecent, obscene, or threatening message over a communications network.
It considers and prosecutes threats of violence, harassment, or stalking.
Prosecutors should consider:
- If the messages were aggravated by references to race, religion, or other minorities, and if they violated existing rules to counter harassment or stalking;
- The age and maturity of any wrongdoer.
EU Regulation 2016/679
The General Data Protection Regulation (GDPR) is the EU Regulation 2016/679 regarding privacy and the Right to be Forgotten.
The legislation comprises 99 articles and offers the possibility of requesting the removal of online defamation that may appear on Google.
Personal data, financial information, or purchasing preferences are exposed to the media and may be subject to misuse and unauthorized use.
A truth that concerns not only the individual but also the professional figure.
The GDPR regulates privacy and the Right to be Forgotten in this perspective.
Despite Brexit, the GDPR keeps working, but the UK has the independence to review the legislation.
What are the essential elements of defamation?
Generally, a defamation plaintiff must prove four elements to be successful in his claim:
- There is a false statement about the plaintiff;
- It communicated the information to a third party;
- It was an intentional fact;
- The information damages the complainant’s reputation.
To be considered a crime, it must meet the criminality criteria described in the Penal Code.
Defamation per se
Defamation per se is a Latin concept, which translates as ‘inherently’ or ‘by itself’.
It refers to words that damage an individual’s reputation without proving that the injury has occurred.
Most jurisdictions value libel as defamation per se.
Defamation per quod
Per quod is a Latin term, which translates as ‘for what.
This concept refers to a defamatory act that, in its essential facts, is not supported by a legal claim but that would be processed when the proof of particular circumstances is demonstrated.
Private figures versus public figures
The difficulty of proving a defamation complaint largely depends on whether the plaintiff considers himself a public or private figure.
Private figures are ordinary people who have not voluntarily or unintentionally thrown themselves at the forefront of public controversy.
As private figures have not positioned themselves at the forefront of society for public comment or debate, the law respects their right to privacy and imposes a less stringent burden of proof.
People are considered public figures when they influence society or have voluntarily or involuntarily thrown themselves at the forefront of public controversy.
Public figures are usually celebrities, politicians, athletes, and other notable figures.
Therefore, this sector has positioned itself at the forefront of society for public comments, discussions, or debates.
Additionally, public figures have benefited from public scrutiny, criticism, and public comment and should be discussed openly without fear of censorship or legal repercussions.
Matters of public and private interest
Specific topics, which are public interest, can be freely discussed.
Society and the public interest should discuss them without fear of censorship or legal repercussions.
The GDPR establishes exceptions in the Right to Be Forgotten exercise, and one of them is to guarantee freedom of expression.
Likewise, it is registered in article 11 of the Charter of Fundamental Rights of the EU.
The general rule is that a group or class of people cannot sue for defamation online.
But, if a statement is posted or communicated in a way that allows for obvious identification of an individual in the group, then the group may have an actionable complaint.
To prove group defamation, the plaintiff must show:
- The group is small enough that a reader or listener can reasonably believe that the defamatory statements in question refer to the plaintiff;
- The reader or listener could reasonably understand that the defamatory statement refers to the complainant based on the context of the publication.
Sharing intimidating content
Disseminating content on the Internet has become a common practice.
Those photos, videos, or news can compromise personal privacy or dignity.
Individuals who repeat defamatory statements that someone else has posted or communicated may be held liable for defamation themselves.
A person cannot avoid the consequences of making a defamatory statement simply by stating that they are repeating someone else’s words.
It largely depends on the original post’s circumstances and its repeated or republished.
Online defamation defenses
Frequently, defamation plaintiffs do not contemplate that the other party may not be wrong.
There are many defenses that defendants rely on to avoid liability.
Here we review the most ordinary privileges and defenses available to defendants accused of defamation:
- Freedom of expression;
- Defense of privilege;
- Presumption of innocence;
- Section 230 of the Communications Decency Act.
Freedom of expression
Legislation protects the free dissemination of thoughts, ideas, and opinions.
Online defamation involves a false statement of fact, which can be proven true or false.
A defamation defendant may rely on the defense of opinion in cases involving a statement that cannot be proven true or false.
However, statements that contain both opinions and facts may be actionable when the alleged facts are defamatory and false.
In 2004, Mark put up a sign in his apartment window, showing a picture of the Twin Towers on fire, with a caption that read “Islam out of Britain, protect the British people” and a prohibitive symbol of the crescent and the star.
Mark was charged with the aggravated crime of displaying a threatening, abusive, and insulting sign, which showed hostility towards a racial or religious group.
Mark was found guilty, for which he appealed to Superior Court.
He argued that he had the right to freedom of expression. However, the Court ruled that it is possible to limit freedom of expression to protect the rights of others.
And in this case, Mark’s poster was a “public expression of attack on all Muslims in the UK.”
The truth does not lead to an actionable online defamation claim.
In the United States, the truth is an absolute defense against online defamation actions.
Compared to the opinion defense, the defense of truth is the exact opposite because a true statement must be objectively capable of being proven true or false. Then it will be actionable in Court.
Let us analyze the case “Masson-New Yorker Magazine”, where the defense of the truth came to light.
The United States Supreme Court assessed whether the alleged alteration of the citations of the psychoanalyst, Jeffrey Masson, by a journalist from the magazine, amounted to defamation.
Thus, the Court explained that “it ignores minor inaccuracies and focuses on the substantive truth of doing or saying something at a given moment”.
Defense of privilege
The defense of privilege refers to the right or legal enjoyment of the accused to do or say something at a specific time.
In the context of defamation, the defense of privilege allows a person to communicate or publish a statement regardless of its content.
Suppose any of the following privilege defenses does not protect a statement. In that case, it will be considered non-privileged, and the party that communicated or published it will be legally liable.
The defense of privilege exists to promote fundamental democratic policies by ensuring free debate and open discussion without fear of legal repercussions.
Privilege allows individuals to post or communicate specific statements, regardless of whether the statement’s content is defamatory or not.
Absolute privileges include judicial proceedings, and official and executive actions.
A legal proceeding considers a court or tribunal to enforce or determine legal rights.
Joint parties to court proceedings include judges, magistrates, court officials, and other figures, such as the Public Prosecutor and lawyers.
Official procedures are limited to a specific area of authority and follow less rigorous guidelines.
Official procedures are commonly manifested before agencies and administrative boards, such as hospital committees.
Executive actions refer to the rights of the Prime Minister, other members of the executive branch, and executive officers.
A qualifying privilege will apply to circumstances in which communications are made, in good faith, to defend a specific interest and have a limited audience.
A qualified privilege allows a person to communicate or publish a statement for a good reason to a small audience interested in knowing the information.
Since the qualified privilege is not as strong as an absolute privilege, it does not immunize people who communicate or publish a statement with malice or reckless indifference.
Qualified privilege is generally granted to people in trust and authority who have a social, moral, or legal duty to society.
A statutory privilege is prescribed and outlined by law.
Legal privileges codify specific situations where a party may publish and communicate particular statements, including defamatory ones.
Impartial reporting privilege
The impartial reporting privilege is a privilege granted to individuals and organizations that rely on legislative, administrative, and other official procedures and reports and then publish them in good faith.
The privilege of fair reporting exists to promote informed and democratic media.
Official information is required to be published impartially, entirely, and accurately.
Neutral report privilege
The neutral reporting privilege protects individuals and organizations that republish unverified facts and allegations about public officials and public figures.
Defendants almost always must show that the report was impartial and in the public’s best interest.
If someone posts statements that another party communicated and subsequently found defamatory, he would be responsible for the original defamatory communication.
Presumption of innocence
The presumption of innocence is the right of every person not to suffer a conviction unless a final sentence establishes guilt in a fair trial.
In the United States, although the Constitution does not include the presumption of innocence, throughout history, it has been taken into account in statutes and judicial decisions.
Likewise, article 11.1 of the Universal Declaration of Human Rights protects this right:
“Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense.”
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act, enacted at the federal level, grants liable immunity to both providers and users of interactive computer services who publish content provided by third parties:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
This section is why Google cannot be sued for defamation online as third parties post the content.
However, there are several exceptions:
- Copyright infringement;
- Violations of criminal law;
- Sexual content involving minors;
- Sex trafficking;
- Content materially altered by the website;
- Electronic Communications Privacy Act of 1986.
Websites that promote and profit from crimes of child sexual victimization, sex trafficking, sextortion, or other forms of online harassment are not exempt from liability.
How to File a Defamation Lawsuit or Complaint Online
There are several essential requirements and strategic decisions that you and your attorney should be aware of:
- Request the removal of defamatory information;
- Requirements to file a lawsuit;
- Where to file a defamation lawsuit;
- Elements of the defamation lawsuit;
- Defamation of a deceased person.
Request removal of defamatory information
In the case of online defamation, the first option you have is to contact the site on a web page.
And, thus, request the withdrawal of the information to the webmaster, claiming that it is defamatory.
If you do not get a response, you can contact Google, responsible for processing personal data.
The search engine is obliged to remove links from specific web pages.
However, even if a page is removed from Google results, the site continues with the information: remember that the search engine does not control the content.
As a last option, contact our specialized team in the Right to Be Forgotten, which applies, among others, to defamatory information.
The request must weigh the interests of the person involved and the public interest of the news.
Requirements to file a lawsuit
Evidence of libel, slander, or libel, depending on the case, is difficult to prove.
Especially if it is on the Internet and the person who slanders is anonymous.
In any case, the evidence that the plaintiff can notify are the following:
- Testimonies: people who have witnessed the defamatory acts and can testify to it.
- Writings or messages: deliver complete messages containing slander or defamation.
That is WhatsApp, email, or social networks.
- Audio recordings: the victim must appear for defamation.
- Psychological expert reports: the evaluation of a psychologist, developed in a statement, can indicate if the victim suffers, for example, anxiety as a result of the defamation.
Where to file a defamation lawsuit online?
Jurisdiction plays a critical role in all online defamation lawsuits and can affect the outcome of a case.
Filing a lawsuit in the United States will depend on the state.
In some cases, it can occur:
- Where the plaintiffs live;
- Where the plaintiff’s company is based;
- Where the publication was published;
- Where the publication has harmed the plaintiff.
To determine whether jurisdiction is adequate in the defamation plaintiff’s home state or another jurisdiction, courts look to:
- Evidence that people have seen or read the publication in that state;
- The plaintiff has suffered damages in that state;
- The plaintiff is in that state;
- The defendant’s ties to the state;
- The defamation was directed at that state.
Online defamation plaintiffs, who have a multi-state or national presence, often argue that damages have occurred in multiple jurisdictions.
Plaintiffs should gather a list of possible jurisdictions and evaluate favorable legal options for their claim.
Elements of the online defamation lawsuit
In every defamation lawsuit, there are the following elements:
- Investigating Court, where the complaint is directed;
- The personal data of the victim and the defendant;
- The detail of the proceedings, in the relation of the events, are ordered, in a chronological way;
- The legal basis;
- Application and signature.
In the United States, defamation defendants can retract defamatory statements and posts before litigation.
However, a retraction will generally only serve to mitigate the plaintiff’s damages.
Each state has its statutes governing how a defamation plaintiff must notify a defendant that a retraction is in order.
Defamation of a deceased
In the United States, defamation of the dead is generally not prosecutable under the law.
The law indicates that it is not possible to damage the reputation of a deceased person.
On the other hand, the deceased cannot be defamed in the UK either.
This is because defamation is a personal action that cannot be assigned or presented on someone’s behalf.
The exception is if the person subject to defamation is defamed and a friend or relative is also identified in the statement, there is a possibility that they may file a defamation lawsuit.
How to deal with defamation online and defend yourself
While filing a lawsuit is an effective tool to combat libel, it is only one way to restore your reputation.
In this section, we look at five practical strategies to fight online defamation:
- Ignore defamation;
- Respond to defamation;
- Online reputation management services;
- Eliminate defamation;
- File a defamation lawsuit.
When you target defamation and other false accusations, it is essential to approach it methodically.
If you don’t, the defamatory material will spread around, causing substantial harm to the person or business.
Here are five tips for dealing with libel to better prepare you to fight back.
Ignore defamation online
In most cases, ignoring defamation is not a good decision.
Usually, the problem will not go away or get resolved.
Depending on the extent of the defamation and what it represents for your reputation, the best approach is to ignore it.
It can be an option when defamatory content is easily buried or unlikely to cause actual harm.
Ignoring defamation can also be an alternative when the essence of the statement is weak, and no one pays attention to it.
It is essential to fully understand the scope and potential consequences of defamatory content before ignoring it.
We recommend that you contact an attorney to understand if it is appropriate for your situation.
Responding to online defamation
Responding to online defamation is okay in limited situations; however, you must exercise caution.
In general, we do not recommend that companies or individuals respond to defamatory attacks directly in the same place where they received the attack.
It can draw unwanted attention to the issue and increase visibility in Internet search results.
However, if you are facing a crisis or are a significant brand, responding to negative and defamatory reviews is more appropriate.
For companies considering responding to false or negative online reviews, it is essential to keep the following in mind:
- Speed and responsiveness;
- The method of contact;
- Confidentiality restrictions;
- The right remedy;
- Any other reasonably possible option.
Speed and responsiveness
When responding to online defamation, you must do it quickly.
That is, in the next 48 hours.
The defamer understands that the victim is serious and may remove the content from the website.
It is not always easy to locate defamatory posts or fake reviews.
We recommend setting up a Google Alerts account to receive notifications every time your name or company name is mentioned.
If possible, you should communicate by phone.
A phone call can turn an impersonal situation into a personal one.
The client feels that you are handling his concerns appropriately.
It is too easy for messages to be misinterpreted on the Internet.
If a phone call is not possible, a direct line of communication can be offered, such as email or video call.
Some companies, professions, and industries are subject to legal and ethical confidentiality restrictions prohibiting disclosing certain information in a public response.
For example, lawyers or doctors.
If the professional industry has rigorous confidentiality and ethical guidelines, you should be thoroughly familiar with them before responding to a client.
The user wants her voice to be heard most of the time.
You have to understand it and tackle the problem in the best way.
Still, the online slanderer only needs an apology or a refund.
Another reasonably possible option
It is effortless for disgruntled and aggrieved customers to create accounts and write reviews on popular platforms.
This is important to remember that consumers sometimes cannot be reasoned with, and nothing you say or do will suffice.
It is also equally important to understand that there is a line that no company should ever cross, and that is to give in to the demands of cyber bullies and extortionists.
This only presents the business as an easy target and leads to more attacks and threats.
Online reputation management
The goal of online reputation management is to remove online defamation and other harmful content from Internet search results, replacing them with counting online defamation from Internet search results:
- Proactive suppression;
- Retroactive deletion.
Proactive suppression involves creating positive content to offset the effects of future defamatory and harmful content.
Retroactive deletion involves promoting positive content to compensate for existing harmful and defamatory content.
Online reputation management is the best option in the following cases:
- The content is still newsworthy;
- It has already gone viral;
- It refers to a serious crime;
- A lawsuit or legal action will take too long.
Effectiveness is ensured by combining online reputation services with the elimination strategy.
Delete online content
The reality of online defamation is that the longer you stay online, the more likely you will rise in search results.
The Internet now allows anyone to post defamatory statements that can be heard or read worldwide in real-time.
Eliminating online defamation from search engines as quickly as possible is imperative to protect the online reputation and minimize damage.
There are several ways to remove online defamation from the Internet, such as:
- Obtain a court order to remove content;
- Make an editorial request to a website;
- Ask the defamer to remove it;
- Negotiate with the website that posted the defamatory content;
- De-index content from search engine indexes.
The services offered by our team, in Right to Be Forgotten, allow us to eliminate all negative links on the web.
File a libel lawsuit online
Litigation does not secure all online defamation removals.
Victims and online defamation attorneys will typically analyze and evaluate the following factors to determine if the claim is viable:
- If the information or statement is true or false;
- If it is constitutionally protecte;
- If it is offensive or invasive of the privacy of an individual or company;
- If you violate intellectual property UK laws;
- If you use the name and image of a person or company illegally and without consent;
- If it was obtain unlawfully.
Most of the time, filing an online defamation lawsuit is not the answer.
Hiring a defamation attorney or law firm
Has a customer left a false and defamatory review about your business or professional service?
Or maybe a news outlet has published an inaccurate and damaging story.
You can address the defamation problem on your own or seek the help of an experienced defamation attorney.
It is crucial to weigh the decision carefully.
In his section, you will learn about the benefits of hiring a lawyer and the type of defamatory content they handle.
Benefits of hiring a specialized lawyer or law firm with a reputational agency
The benefits of hiring an online defamation attorney to remove content online are endless.
Not only do online defamation attorneys and law firms know the ins and outs of the law and are experience in removing this content, they:
- They understand how to protect individuals and businesses from all types of cyber threats (such as extortion, sextortion, blackmail, and online harassment);
- They stay up-to-date with the latest technologies and research practices to find solutions efficiently in legal matters;
- They are subject to a professional and ethical governing body.
Online defamation attorneys also help remove harmful content, control what appears in Internet search results, and improve online reputation using unique marketing agency techniques.
Specialists make multiple content removal requests per day and have a comprehensive understanding of which arguments are most persuasive when requesting removal.
They also have an arsenal of contacts across websites, platforms, and media to facilitate quick and hassle-free deletions.
Types of defamatory content that lawyers handle
The Internet allows online defamation to become a worldwide phenomenon.
Online defamation attacks against people are visible in:
- Social networks: false posts, accounts, comments, statuses, and messages on Facebook or LinkedIn.
- Websites built for criticism: platforms created to criticize a person, company, or product, such as Ripoff Report;
- Blogs and forums: platforms that allow users to provide feedback on particular topics.
Most consumers formulate their first and sometimes only opinion about a business based on what they read on the Internet.
Defamatory posts, false reviews, or complaints can have devastating effects on the operation of a business.
Online defamation keeps customers away, strains business relationships, and closes doors forever.
Attacks against companies manifest as:
- Consumer complaints: online platforms where consumers share their opinions and thoughts about products and services;
- Consumer ratings and reviews: these sites assign a score to each business profile.
Consumers can easily classify them and discount low-quality services.
All businesses should know how to spot a fake review and report it to the platform;
- Media and other online publications: these are complicate to remove because the information may be in the public interest;
- Blogs and forum comments, such as Quora;
- Social networks: companies can find false business and personal profiles, malicious posts and comments, etc .;
- Fraudulent websites: user-generated content exposing unethical scams and services;
- Employer Reviews: platforms where bosses post detailed information about their employees.
They have become a focus of comments on products and services intended to cause harm to an individual, business, or company.
Most consumers formulate their first and sometimes only opinion about a business based on the Internet.
Defamatory posts, false reviews, or complaints can have devastating effects on the operation of a business.
As we have seen in the guide, online defamation can have severe consequences in a person’s life or the history of a company.
At RighttobeForgottenGDPR, we try to provide users with free information about online defamation to protect themselves from comments.
Our team works on online defamatory content through the Right to Be Forgotten.
We offer a professional consulting, application, and follow-up service in procedures relate to the Right to Be Forgotten.
Contact a specialist, and we will start removing defamatory, harmful, or outdated content.