[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is firstname.lastname@example.org, and his phone number is 323-452-9909.]
This page contains an overview of three key issues in online defamation cases: whether statements are defamatory, whether the speaker receives special constitutional or statutory protections, and the removal of defamatory statements from the internet.
My law firm is in Los Angeles. Therefore, the primary focus is on California law.
Only False Assertions of Fact May Be Defamatory
False statements of fact made on the internet may constitute defamation. (Written defamation is known as “libel,” and spoken defamation is “slander.” Posts on the internet would be considered libel.) However, a speaker will not be found liable (guilty) of defamation for merely making statements that are negative, mean, or unfair unless these statements contain a false assertion of fact.
A pure statement of opinion cannot constitute defamation. However, an opinion that contains an implied false assertion of fact may constitute defamation. Courts hold that “the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” Franklin v. Dynamic Details, Inc., 116 Cal.App.4th 375, 385 (2004).
For example, in Yelp Inc. v. Superior Court, 17 Cal.App.5th 1 (2017), a disgruntled former customer left a negative review of an accountant. The court noted that the review would merely constitute opinion if the post only stated that it was too “bad there is no zero star option! I made the mistake of using them and had an absolute nightmare.” Id. at 16. However, because the review went further, the court found the post to contain potentially defamatory assertions of fact. For example, the statement, “if you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action,” implied an assertion of fact that the poster was indeed screamed at and treated badly without justification.
As another example of a case involving a Yelp review, in Bently Reserve LP v. Papaliolios, 218 Cal.App.4th 418 (2013), a tenant posted a very negative review of his landlord on Yelp. The court acknowledged that statements from the Yelp review such as that the landlord was a “sociopathic narcissist,” and “celebrates making the lives of tenants hell,” were merely hyperbolic opinions. Id. at 428. However, the statement that the “new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants (Pat, Mary, & John)… [and] the departure of eight more [sets of occupants out of 16], (units 1001, 902, 802, 801, 702, 701, 602, 502) in very short order,” went beyond mere opinion into potentially defamatory assertions of fact. Id. at 428-430. That the speaker used the word “likely” was found not to insulate him from liability.
Constitutional and Statutory Protections
The First Amendment of the Constitution does not cover false statements of fact. However, courts recognize that a free press is vital and that fear of lawsuits for routine mistakes would chill the media’s reporting. Therefore, courts provide constitutional protections for speakers in certain contexts.
Traditionally, defamation was a strict liability tort. This means that if the speaker made a false and damaging statement of fact, the speaker could be found libel (sued and lose) even if the speaker made an honest mistake. The Supreme Court’s “decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).
In order to prevent this possible self-censorship, courts provide protections to those who speak about matters or issues of public interest or concern. These protections generally may apply to any speaker, not merely traditional news outlets.
The maximum level of protection is provided for speech about a public figure regarding a matter of public concern. For such speech, a speaker may only be found liable and have to pay money damages if the speaker acted “with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). Note that a public figure can include a wide variety of publicly known people including politicians, celebrities, well known business figures, and athletes. It may also include a “limited purpose public figure” who has purposefully and prominently participated in a matter of public concern. See Gilbert v. Sykes, 147 Cal.App.4th 13, 24-26 (2007).
As opposed to speech about a public figure, speech about a private figure related to a matter of public concern receives a lower level of constitutional protection. A speaker may not be found liable for speech about a private figure related to a matter of public concern unless the speaker acted negligently when making the statement. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). It is much more likely that a speaker will be found to have acted negligently than to have acted with “actual malice.”
The Supreme Court has not decided whether there are any constitutional protections limiting civil liability for speech unrelated to a matter of public concern. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, n.6 (1990) (choosing to leave the question open). The lower courts are split on the question. However, the Supreme Court of California takes the view that all defamation plaintiffs must prove at least negligence to recover damages. Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 747 (in bank, 1989). The Judicial Council of California’s jury instructions adopt this view and require negligence in all cases of defamation. CACI 1704.
In addition to constitutional protections, California state law provides more protections for certain types of speech. There are two levels of protection provided under state law: absolute privilege and qualified privilege.
Statements that are absolutely privileged may never be the subject of a defamation lawsuit. With only limited exceptions, absolute privilege is extended to assertions made in legal proceedings or as part of the carrying out of governmental duties. Cal.Civ.Code § 47(b).
With exceptions, speech made in response to a request for information receives a qualified privilege. Examples include statements an employer makes about a former employee to a prospective employer and credit reports. Cal.Civ.Code § 47(c). Speech protected by a qualified privilege may only be subjected to civil liability if the speaker “was motivated by hatred or ill will” or if the speaker “lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights.” Lundquist v. Reusser, 7 Cal.4th 1193, 1213 (1994). This standard of “reckless disregard” is greater than simple negligence but is lower than constitutional “actual malice.” McGrory v. Applied Signal Technology, Inc., 212 Cal.App.4th 1510, 1539, n. 18 (2013).
Having Defamatory Statements Removed from the Internet
If someone who has been defamed wins a lawsuit, the judge may issue a court order known as an injunction. The judge can order the defendant (person who was sued) not to repeat the assertions in the future and, also, that he or she must pulldown the defamatory statements from the internet. See Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007). A violation of an injunction may lead to a finding of contempt of court and severe penalties.
However, sometimes the defendant refuses to remove the offending posts. Internet serv ice providers do not have to remove the defamatory posts themselves. Hassell v. Bird, 5 Cal.5th 522 (2018). However, many (but not all) ISPs will voluntarily remove a post if it contains statements that a court found to be defamatory.
Finally, please note that California has a strong anti-SLAPP statute that requires certain unsuccessful plaintiffs to pay the defendants’ attorneys’ fees. Cal.Code.Civ.P. § 425.16. Therefore, anyone contemplating suing for defamation must be cautious.
[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is email@example.com and his phone number is 323-452-9909. This page is for educational purposes only. No legal advice or assistance are given.]