Defense of Claims of Internet Defamation and Cyber Smear

The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole. Under our Constitution there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.

From Peter’s interview for the Masters of the Courtroom series on ReelLawyers.com.

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04 (1984)

Consumers are entitled to have access to and consider all viewpoints-positive and negative-when deciding whether to do business with a professional, or business. Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas. . . This right to receive information and ideas, regardless of their social worth is fundamental to our free society.”)

We defend internet posters accused cyber smear for making allegedly defamatory reviews and posts Google, Yelp, the rip-off report and elsewhere on the internet, on a public forum or in the public media. We have successfully defeated claims against internet posters accused of defaming businesses and professionals.

The First Amendment does and always has secured the right of an individual to be a dissenting voice, to be a critic. He can do so without fear of being censored or silenced just because of the person or entity he criticizes. The Revolutionary War was started by a group of individuals who dared to criticize the King and we’ve been a nation of critics ever since.

Many businesses argue that consumers should not be free to criticize them because they are a business and Businesses argue that customer’s negative opinions about their business should be silenced. Their solution is censorship and enforced silence. But that is precisely what the First Amendment seeks to prevent. In one of the seminal First Amendment cases, the Supreme Court quotes the venerated jurist Learned Hand who wrote that the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.” Years earlier, First Amendment champion Supreme Court Justice Brandeis succinctly made a similar point when he wrote in Whitney v. California that “the remedy to be applied is more speech not enforced silence.”

Defamation law works within this framework of First Amendment protection and cannot be considered apart from the First Amendment. Defamation law is meant to redress harm to reputation. Just because a person or business don’t like a statement about them doesn’t mean it harms their reputation and doesn’t mean the statement is defamatory. Part of a plaintiffs’ burden of proof in libel, slander or defamation case is proving that the specific statement that is alleged to be defamatory has caused a specific identifiable and provable harm to the plaintiff’s reputation. Vague insinuations of harm will not do; there must be concrete evidence of specific harm otherwise the plaintiff fails to carry their burden of proof and that ends the inquiry. A plaintiff must prove that the allegedly defamatory statement is a false statement of fact. The case law is clear that rhetorical hyperbole, figurative speech, name calling, and the like are not the type of statements that may form the basis for a defamation claim. Calling someone a crook to say you disapprove of their negotiating or business practices is an example of the type of figurative name calling that courts have specifically found to be non-actionable. Similarly, opinions that are non-verifiable, subjective expressions of belief are not actionable as defamation.

Almost as important as the words used, though, is the medium in which the words are published. Courts have recognized that the internet is a virtual wild-wild west where people are much more likely to make wild accusations or use over the top language. In recognition of the nature of the internet, courts are much more likely to consider statements made on the internet to be nonactionable opinion, rhetorical hyperbole, figurative language, name calling, etc. These courts are very reluctant to find statements made on the internet to be statements of fact.

Due to the nature of the internet, courts have been quick to find statements made online to be nonactionable statements of opinion or rhetorical hyperbole. See Exhibit 1 at Exhibit C (setting forth the legal standard for online statements agreed to by parties as part of settlement agreement); see, e.g., LeBlanc v. Skinner, 2012 WL 6176900, at *7 (N.Y. App. Div. Dec. 12, 2012) (reasoning that finding by trial court that calling someone a “terrorist” online is nonactionable hyperbole “is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus”); Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32, 44, 925 N.Y.S.2d 407, 416 (2011) (finding statements made online nonactionable because “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts”); Art of Living Found. v. Does, 2011 WL 2441898, at *7 (N.D. Cal. June 15, 2011) (finding statements “made on obviously critical blogs. . . with heated discussion and criticism” nonactionable hyperbole because “[i]n this context, readers are less likely to view statements as assertions of fact rather than opinion.”); Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1104 (N.D. Cal. 1999) (in context of heated debate online “statements accusing [plaintiff] of being a ‘fraud,’ a ‘criminal’ and acting illegally are rhetorical hyperbole”).

Plaintiffs bear the burden of proving each and every element of a prima facie case of defamation for each and every statement they contend is defamatory. And when plaintiffs are public figures and the topics discussed in internet posts, Yelp and Google reviews are topics of public concern plaintiffs must prove not only their prima facie case but also that those statements were made with “actual malice” -or in other words that at the time person they have sued made his or her statements they knew it was false or subjectively entertained serious doubts about its truthfulness. As the Supreme Court in New York Times v. Sullivan explained, this is a high hurdle to imposing liability.

If Plaintiffs are able to prove a prima facie case of defamation that does not mean that a plaintiff prevails. No the burden simply shifts to the internet poster to show that the statement while not technically accurate is covered by a defense such as the “substantial truth” defense outlined by the Seventh Circuit’s Global Relief v. New York Times opinion. Basically under this doctrine even if a statement is found to contain technical inaccuracies, the statement is not defamatory if the gist or the sting of the statement is true. A court will also look to see what caused more harm to the plaintiff’s reputation: the errors in detail or the true statements. Unless the errors in detail are substantially more harmful to the plaintiff’s reputation than would a true recital of the facts then the statement cannot be considered defamatory. A perfect example of this comes from the New York Times v. Sullivan case where the allegedly defamatory statements were things like “Dr. Martin Luther King, Jr. was arrested seven times” when in reality he had only been arrested four times. Or that “police ringed the campus” when the police had only been deployed in groups on the campus. The Supreme Court did not concern themselves with these minor errors in detail.

Based in the Chicago area, our internet defamation and cybersmear defense lawyers bring decades of experience to these types of lawsuits. We are dedicated protecting the free speech rights of our clients embodied in the First Amendment and defending them against lawsuits attacking those rights. Lubin Austermuehle PC has offices in Elmhurst and Chicago, Illinois and represents clients in the greater Chicagoland area and throughout Illinois, Indiana, and Wisconsin. To schedule a consultation with a Chicago internet and cyber smear defamation defense attorney, contact us via email, at 630-333-0333.