Shut Your Mouth – And Computer: Defamation in the Internet Age

You’ve heard the old adage – “Telegraph, Tell-a-Farrier”. While intended as a joke, the equine world is famous for rapid transmission of gossip. While much of this is harmless, occasionally gossip spreads damaging, unfounded rumors specifically aimed at individuals or their businesses. The rise of Facebook and the prevalence of negative postings is creating entirely new case law on what constitutes internet defamation.

The following article covers the general elements of internet defamation in the hopes that the equine business world will sit down, take note, and most importantly – “SHUT UP” – at least as to publishing non-investigated negative accusations against business figures in the equine world.

Terminology

First, understand the terminology. While governed by – and thus varied by – state law, the following general definitions and principals apply.

1. Defamation: a false and unprivileged statement of fact that is harmful to someone’s reputation”, and published “with fault,” i.e. either negligently or maliciously.
2. Libel: a written defamation;
3. Slander: a spoken defamation.

In addition to the above, there is also “libel per se”, that is, a written defamation that is so obviously negative and false that it requires little additional evidentiary proof. The following are often found to be libelous per se, i.e. a statement that falsely:

• Charges any person with crime, or with having been indicted, convicted, or punished for crime;
• Imputes in him the present existence of an infectious, contagious, or loathsome disease;
• Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
• Imputes to him impotence or a want of chastity.

Proving a Defamation Claim

To prove defamation, a claimant must establish each of the following elements: 

1. A publication;
2. Of a false statement of fact;
3. Tending to harm the reputation of the claimant, and
4. Proof of damages.

An individual need not be named “specifically” for this defamation to occur. A plaintiff only needs to be reasonably identifiable; i.e. if you post a statement about a “certain saddleseat trainer at XX facility”, and there’s only one such trainer at that facility, the person has been identified with sufficient specificity to have his or her reputation at stake.

Defenses: Truth, Opinion, Retractions and Intermediary Publications

1. Truth
   Truth is an absolute defense to a defamation claim. However, proving “truth” after publication of a statement can be costly and also hard to prove. Better to avoid being sued in the first place by not publishing anything defamatory or potentially defamatory in the first place!
2. Opinion
   Also there is a distinction between expressing an opinion, which can be negative without being defamatory, and asserting a “verifiable fact”. A verifiable fact is a fact which is capable of being proven true or false when viewed in light of the context of the statement. While some courts have held that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, and thus NOT defamation, they can rise to slander when appearing to assert negative “verifiable facts” which are later proven untrue. For example, an internet posting might get away with accusing a trainer of not being very “good” with clients (ie poster’s opinion), but might not be able to get away with accusing the trainer of being charged with abuse of animals in his or her care (a verifiable fact capable of proof – or not).
3. Retractions
   Oftentimes posters who later discover their statements were not true attempt to remedy the harm by a written retraction. Some states permit “retractions” as a partial defense or an element of damage reduction in defamation claims. While this may or may not be helpful in a particular case, this oftentimes is the “skunk in the jury box” scenario. You might remove the skunk (ie retracting the statement), but the scent – and the damage – linger long afterwards. This is particularly true on internet postings where a retraction may never be viewed by all persons negatively influenced by the statements posted.
4. Intermediary Postings
   Generally, anyone who repeats someone else’s statements is typically held equally responsible for any defamatory content as the original speaker – if they knew, or had reason to know, of the defamation. However, developing case law related to internet defamation and and on-line postings resulted in Congress passing Section 230 of the Communications Decency Act, which provides some liability protection to Internet “intermediaries” who merely republish speech by others.

Conclusion

The status of these exposures, defenses and statutory protections are currently playing out in cases nationwide. This leads to a certain amount of legal uncertainty as to what is actionable, and what is not. Rather than taking a chance, the wiser course is to refrain from any negative publication unless reasonable due diligence reveals verification of the basis of the claims being raised in the publication.

© Denise E. Farris, Esq. (January 25 2022) This article may not be reprinted or reproduced in any manner without the consent of the author. Contact: Denise Farris, Farris Legal Services LLC. Email: [email protected]. Telephone: (913) 220-6203.

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This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional should be sought. The publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.