Before this, previous defamation law precedents did not deliver this guarantee, despite the provision of the First Amendment of the United States Constitution, protecting freedom of the press.  Rulings on libel cases historically neglected to use this provision of the Constitution.

As a result, the defamation law relied mostly on traditional common law as inherited from the implementation of the English legal system that mixed across the country.  The nature of the defamation law however drastically changed when a case in 1964 involving the New York Times showed that even public officials had the chance to win libel suits.

The premise was that as long as it could be demonstrated that publishers had prior knowledge about the information being put forward being false, or was done with reckless disregard for what is true.

The Plaintiff and the Defamation Law

Based on the history of court cased in the United States, it can be said that the defamation law is less plaintiff-friendly, compared to other parts of the world like in Commonwealth countries, or in Europe for example.

This is primarily based on the enforcement of the First Amendment as guaranteed by the Constitution.  The result is a number of comprehensive legal discussions on what is, and what is not considered libelous or slanderous.  The challenge actually lies on the different interpretations applied by the states based on federal law.

The problem encountered by most plaintiffs is that in some states, libel and slander are grouped together into a single set of laws.  In fact, criminal libel rarely faces prosecution, but remains to be included in the different law books, as well as constitutionally permitted in some circumstances.

Defenses in relation to the defamation law usually results in a dismissal even before a trial can begin.  This is because of the ruling on fair comment and criticism, considering that statements can often be considered more as an opinion instead of being factual.  Because of this, the most effective defense of any defendant when it comes to the defamation law is that the truth should remain absolute.

Modern Practice of the Defamation Law

In modern law practice, the majority of defendants when it comes to defamation law are publishers or newspapers.  Normally, they face about twice as much lawsuits compared to those filed against television stations.  This can be surprising to some who believe that there are more people who watch television than read newspapers or magazines.

This trend becomes understandable when you consider that most of the complainants under the defamation law are business people, entertainers, corporations, as well as other similar public figures.  It is impossible to use the defamation law if the defamed is already dead.

It is important to note though that in the context of the defamation law based on Section 230 of the 1996 Communications Decency Act, any parties that begin forums on the Internet cannot be held liable for any defamation that may be caused by third parties.  In general, this means that the defamation law cannot be applied to any statements made on the Internet by anyone whose identity cannot be established.

Essentially, with everyone on Internet forums using aliases, anyone can make derogatory statements and escape the defamation law.

Defamation Law Dismissal

In different states, there are various ways that cases based on the defamation law can be dismissed without even reaching the trial phase.  An example would be litigation privilege, where the statements are taken in the context of fair comment and criticism making them non-actionable.  The reasoning behind this is that as a functional society, everyone should have the right to express comments, especially on matters that can be considered of public interest.

It must be understood however that fair comment is not interpreted by the United States Supreme Court as a Constitutional imperative.  Another common defense is the passing or reporting of information in a manner that it would seem to be of general information about emergent dangerous conditions.  In this regard, the prosecution handling the case based on the defamation law must be able to prove beyond doubt the intention to defame.

Defining Defamation

There are some states that take exception on the interpretation of the defamation law.  States like Tennessee, Missouri, Arkansas, and Arizona recognize the reality that there are some categories of false or misleading statements that is innately harmful.  This means that the statement by itself, without needing explanation, can already be seen as defamatory.

Traditionally, the guiding moral is that the statements are strictly defamatory if they make allegations:

• that can be damaging to the reputation of another trade, profession, or business
• of some despicable illnesses like leprosy, sexually transmitted diseases, or mental illness among others
• on acts of deviant sexual behavior regardless of the gender, sexual preference, or civil status
• that criminal activities or engagement in crimes of moral turpitude are being undertaken

It is important to note that on the federal level in the United States, there is no such thing as a criminal aspect of the defamation law.  In the state level however, two territories and seventeen states have included the criminal aspect of the defamation law in their books as of 2005.

From the period of 1992 up to August of 2004, cases involving the criminal aspect of the defamation law have been filed in the courts of the United States.  Among these cases, six defendants have been convicted of the criminal aspect of the defamation law.

Lawsuit: Based on Hyperlinks

The lawsuit was based on a website, p2pnet.net, owned by Jon Newton of Vancouver. Ironically enough, p2pnet.net is a website that revolves around the issue of free speech. The argument stated that Newton represented a smear campaign against Wayne Crookes and other members of the Green Party. Crookes stated that Newton is guilty of publishing defamatory content about Crookes by hyperlinking to two websites in the U.S. containing defamatory language and should be held liable.

Newton’s website had two hyperlinks, but he made no references or comments about the defamatory remarks concerning Crookes. There were also two paragraphs on Newton’s website referring to Crookes. Neither of them was defamatory. Newton’s article mentioned that Crookes, a politician and campaign manager for the Green Party in 2006, was suing a political website run by Michael Pullings for defamation. The two paragraphs and the link were not sufficient evidence of defamatory content; therefore they are not libelous.

Hyperlinks equated to footnotes

The Supreme Court decision equated hyperlinks to a footnote since they refer to other sites without repeating the defamatory content. They are mere references to other websites. Mr. Newton’s site should not be seen as publication of defamatory content simply because there was a link to that type of content from his website.

According to the Vancouver Sun, the final judgment declared that“there can be no flow of information without the use of hyperlinks.” It would “have the effect of seriously restricting the flow of information and as a result freedom of speech, if hyperlinks were subjected to the traditional publication rule.”

Justice Abella further expounded by stating that if the hyperlink was intentionally used to corroborate with the defamatory content of the site that contained the hyperlink, there could have been liability; however, this was not the case.

According to CBS News Canada, those that published the original articles containing the defamatory content were sued by Wayne Crookes. Those cases were all dismissed while this hyperlink case moved forward. Robert Anderson, Esq., who represented a league of media negotiators who intervened, said that it would be devastating for the Internet industry if mainstream media could not hyperlink for concern over litigation. The Internet would not be what it is today without links to other websites. Businesses would suffer and information and competition would be at a stand still.

Primary and Secondary Liability in Canada for Defamatory Publication

In Canada, the status of liability for publication of defamatory content falls into primary and secondary categories. A defendant’s liability depends on his role in circulating alleged defamatory content. For example, if the defamatory content is in a newspaper, the editor, the supervisor, the owner of the newspaper and even the distributor can be held liable. This is the primary publisher category. With secondary publishing, the alleged disseminators of the defamatory content are passive. They are not aware or have not intentionally published any of the defamatory content. The secondary publishers would include a library, bookstores or Internet Service Providers and websites.

While there are times that an ISP or different types of websites can be held liable for defamatory content, there is an absence of Cyber law in Canada. Therefore, comparison to real print situations must be the standard until more international case law develops in the future.

Defamation damages

The damage from Internet defamation can be far-reaching and takes effect at alarming speed. Search engines are unable to determine truthful comments and posts from false ones, and because many of the architects of smear campaigns know the tricks of SEO, the search engines often end up favoring negative information with high rankings. The result: Potential customers and clients see the false information before anything else. Lost clientele means lost revenue.

The attorneys of the Kelly Law Firm can take quick action against the authors of online defamation. Uniquely experienced in the nuances of defamation law, the Kelly Law Firm has represented clients from all over the globe. They can help you begin the fight against those who seek to damage your hard-won reputation quickly.

Kurt Vonnegut Jr. once lamented how easy it is to infect the Internet with an outright lie. His comment rings true. The ease at which rumors and falsehoods can completely overwhelm the truth on the Web is astounding. What’s worse, the architects of online smear campaigns hide behind a veil of anonymity, and tracing the originator is nearly impossible for those not familiar with how the Internet operates. It is important to have reputation management policies in place if you believe that you could be a target of defamation.

Online Defamation Law

You have recourse. The Kelly Law Firm focuses on defamation law cases—particularly those involving the Internet—and can help you fight against those who intend to do you or your business harm. Our defamation attorneys have the knowledge and resources to bring those responsible for your losses to account for their actions.

The number and variety of Internet-based platforms for libelous posts and comments run the gamut, from emails, posts on social networking sites, like Twitter and Facebook and blog posts and comments. One of the most common sources for false negative information are so-called “review” sites. Paid content writers, who may have never used the product or service that they write about, author the “reviews.” While most of these reviews are of a positive nature, those bent on damaging your reputation may have paid a service to write the negative reviews, further hiding the identity of the one behind the smear campaign.

While many may believe that online defamation happens only to others, every individual and company who has a presence on the Internet is a potential target. A former friend with a perceived wrong, a disgruntled customer, employee, or other unscrupulous entity has the power to wreak havoc on your online reputation. In other words, everyone is at risk.

If you have experienced the devastating results of negative and false claims against you or your company, understand that you are not alone. The attorneys of the Kelly Law Firm want to help you take effective action against Internet defamation and regain your good reputation.

Defamation law definition goes like this: it is a law that tries balancing the competing interests. It’s true that no one possesses the right of ruining someone’s life by lying about him or her; conversely, every person should be allowed to speak their mind without being afraid of litigation against every disagreement, mistake or insult. Two extremely important components of any free society are social and political disagreements. It is absolutely impossible that every individual living in a society share same beliefs and opinions; for example: it is common for the editorial cartoonists to exaggerate facts for making their point and on most occasions political rivals reach conflicting conclusions regarding a common matter. These differences in opinion or exaggeration of facts are generally not turned into defamation law cases; they are part of any social and political scenario. The discussion below is carrying information about the emergence of defamation law in the US and its current status.

During the landmark case of 1964 New York Times CO. vs. Sullivan, Supreme Court of the United States announced that the First Amendment will be protecting some defamatory statements. This defamation lawsuit involved an article published in the New York Times; the article provided some unflattering facts about a politician. During the lawsuit, the Court agreed that one can make mistakes during public discussions, particularly if the discussion is about a public figure, which in this case was a politician. The Court also stated that if any such mistake is ‘honestly made’, it must not be considered as a defamation action. The US Supreme Court created a new rule, which stated that a public official can sue an individual or an organization for statements made regarding his or her public conduct only if those statements possessed ‘actual malice’. The term ‘actual malice’ is used when an individual makes a statement in spite of knowing that it was not true or without caring about the truth. For instance if a person publishes facts without checking whether they were true or not in spite of having doubts, according to US defamation law his act will be regarded as an ‘actual malice’.

 All defamation cases in the United States post 1964 primarily follow the rules set during the New York Times lawsuit. Now, factors like content of the statement, the public figure about whom the statement was made and if the statement is subject to public interest decide whether the defamation will be actionable.

 Although the basic law is same in all parts of the country differences do exist in defamation laws of different US states. You may live in any US state, but for proving that you are defamed, you must present a defaming statement in the court that has all the following attributes:

1. Injurious
2. False
3. Unprivileged
4. Published

If you find that the statement qualifies in all the four categories mentioned above, you should consult a defamation lawyer immediately. The 4 features mentioned above are elaborated below.

Earlier it is mentioned that other than libel and slander defamation can also be of other kinds; they are pictured and gestured. As a written statement lasts longer compared to a spoken statement, majority of the insurance companies, juries and courts consider libels a lot more harmful than slanders. In this context, the term ‘published’ does not necessarily refer to statements that are printed. It refers to any statement that is made public via radio, television, loud conversation, speeches and gossips or statements printed on leaflets, books, newspapers, magazines as well as picket signs. There is also online defamation law for defaming statements published in websites and blogs.

A defamatory statement will not be considered damaging if it is not false. Often opinions are not considered as defamation as proving that they are objectively false is virtually impossible. For instance: if a book reviewer states “this one is the worst book published this year”, the statement cannot be categorized as a defaming one as no one can prove that what the reviewer is saying is false.

Defaming statements should also be injurious. The basis of defamation laws of all US states is looking after the injuries to one’s reputation. This means for suing someone for defamation, one must explain how the false statement has harmed his or her reputation. Some of the injuries caused by defamation are: loss of work, ignorance of family members, friends and neighbors and harassment by press. An individual, whose reputation was already tampered, is unlikely to gain much from a defamation lawsuit.

A statement for being categorized as defamatory must be ‘unprivileged’. In some cases, a person cannot be sued for defamation in spite of the fact that the statement made by him or her is proved to be false. For instance: the witnesses testifying falsely in the court cannot be sued. This is because lawmakers of the country have decided to offer certain privileges to witnesses appearing during court cases. According to the lawmakers, it is extremely important to ensure that the statements of the witnesses are not influenced by any factor, not even the fear of being sued for defamation. The lawmakers also enjoy similar privilege; they are not liable for any statement (even if the statement is defamatory in nature) made in the official materials or in legislative chambers.

In similar situations, the defamed private people are protected more strongly than the defamed public figures. If the statement in question has nothing to do with public interest, the importance of freedom of speech diminishes. Defamed private people can manage to prevail without proving that the statement made by the defamer possessed ‘actual malice’.