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The Internet and Defamation

To prove defamation a plaintiff must establish four elements:

  1. The defendant made a false statement purporting to be fact;
  2. The statement was published or communicated to a third person;
  3. The defendant was at fault in making the statement; and
  4. The statement caused damages or harm to the person who is the subject of the statement.

In order for statements to be considered defamatory when they involve public officials or public figures such as celebrities, the plaintiff must establish that the statement was made with malice – knowledge that the statement was false or made with reckless disregard for the truth.

In the Internet age, the forum where the statement is published can have considerable ramifications. For example, the traditional forums identified as "public forums," which include public parks, sidewalks and areas usually open to political speech and debate, are areas that traditionally have strong First Amendment protections.

Conversely, online content, such as newspapers or magazine websites, is deemed private property because the website is owned and operated by a private company and therefore has a weaker a First Amendment defense.

Online content providers that enable and encourage users to anonymously upload comments, photographs or other materials, run the risk of a court finding that a website owner who intentionally encourages illegal or actionable third-party postings becomes a creator or developer of the content and is not entitled to immunity under defamation laws. The key to the issue is whether the online publisher in some way materially assisted in the content or merely provided an avenue for its publication. If the website does not alter or add to the posting, it may not be found responsible for the defamation. However, the website provider may be required, in turn, to reveal the identity of the anonymous poster.

About Defamation and Bloggers

Bloggers, too, face issues of defamation. If a blogger posts statements that are fact as opposed to an opinion, defamation may apply. Under this scenario, the court will apply three factors to resolve this dispute: (1) whether the language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the full context of the communication in which the statement appears on the broader social context and surrounding circumstances send a signal to readers that what is being read is likely to be an opinion and not a fact.

As the Internet and its abilities continue to grow, we can anticipate that litigation will continue to shape how the Internet is used, which no doubt will prompt new laws that will have future affects upon First Amendment privileges.

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