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Saturday, September 28, 2013

Libel and slander in the internet age

What you write can bite -- you

“This will be a very public reminder to people that you can get sued for what you publish on the Internet,” said Ryder Gilliland, a Toronto libel lawyer. (1)

Here are some definitions to help us all understand what we're talking about. (2)

Defamation: A false statement which tends to harm the reputation of a person or company. This term covers both libel and slander.

Libel: Defamation which is written, such as on a web site. Most on-line defamation, or libel, occurs through posting a web page or comment. (Law firms now specialize in this subject. See (3))

Slander: Defamation that is spoken, such as through a transcribed video, podcast or audio file.

Repeat it and own it 

Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. There are some protections in a new, and therefore murky, area of federal law called Section 230. This protects distributors  such as Google or Facebook, from being called publishers. Whether bloggers who host comments will be considered distributors or publishers is unclear.

(For the record, CMConserve identifies commenters and gets permission before allowing their comments to appear in the blog. That’s been our policy from the beginning, not a knee-jerk response to a sudden awareness of personal responsibility.)

What makes it libel 

What makes something libel, at least in the sense that the victim could be awarded monetary damages?

First, the statement must be false. Opinions are typically not actionable as defamation. In general, though, IMO is not a good defense; there’re lots intricate and arcane legal requirements swirling through this area. Essentially, to be safe a blogger has to either be right or have done enough research that a reasonable person would believe the accusation is true.

Next, the false statement causes harm. So, a comment from a generally-discredited writer that the Mayor hired PIs to follow him around and report on his activities wouldn’t be actionable; no sensible voter or supporter would be persuaded by that commenter.

Third, the statement must be made without research into the truthfulness of the statement or be made with full knowledge of its falsity.

Finally, if the person who is the victim of the false statement is a celebrity or public official, then malice must also be shown. Malice is shown when the statements are intended to do harm or are made with reckless disregard of the truth. In this sense celebrity status can include folks who comment at City Council meetings, regular bloggers, and even citizens who volunteer for committees.

Developing area of law 

This is a new and fascinating area of law. Journalism professionals have to update their understanding of the rules. 

Just as what one posts on a social site can come back years later to block promotions, what one writes or accepts on a blog can come back to bite one’s wallet.

 (1) Canadian view  Here
 (2) Definitions; Here
 (2) Definitions and discussion:  Here
 (3) Law firm example specializing in online libel cases: Here

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