- What Is Online Defamation?
Defamation law has evolved over hundreds of years, with courts trying to balance one person’s freedom of expression against another person’s right to defend their reputation. The internet has allowed more free speech than ever before and more opportunities to trash someone’s character with a post or a comment. Traditional defamation cases involve newspaper articles, magazines, letters to the editor, and television and radio broadcasts. Online defamation happens on various platforms, including:
Yelp and other review sites, and
Defamation is a civil wrong (called a “tort”) in most states—you can sue someone for money over it. But harassment and cyberbullying are crimes that can lead to a jail or prison sentence.
How Do You Prove Online Defamation?
Each state has its own defamation laws, but the basic principles are the same no matter where you file your lawsuit. A plaintiff suing for online defamation typically must show that the defendant:
made a false statement of fact
the statement was made to someone other than the plaintiff
the statement harmed the plaintiff’s reputation, and
the defendant was “negligent” (careless) about whether the statement was true or false.
Public figures, like politicians and celebrities, have to show more than negligence. Public figures have to show that the defendant acted with “actual malice.” Actual malice means the defendant made a false statement knowing it was false or with reckless disregard for the truth of the statement.
Defamation is harder to prove than it may seem at first glance. Remember, the statement has to be a false statement of fact. Many defendants argue that what they said about the plaintiff wasn’t defamatory because it was true or that it was an opinion and not a fact. A defendant might also argue that the plaintiff’s reputation was already so bad that the defendant didn’t harm it.
Learn more about key elements of a defamation claim and defenses in defamation cases.
Damages in Defamation Cases
“Damages” is the legal term for the money a plaintiff receives as compensation for harm caused by a defendant. Some defamation claims end in multi-million dollar awards for plaintiffs. Other defamation plaintiffs receive nothing or “nominal” damage awards as low as $1.
Calculating damages in defamation cases is complicated. How do you measure the value of a person’s reputation in dollars and cents? Let’s take a look at a few common categories of damages in defamation cases.
Special Damages (Economic Damages)
Special damages are compensation for the financial harm caused by defamatory remarks, including damage to a plaintiff’s professional reputation. For example, say that you’re an actor, like Johnny Depp, who lost out on acting roles and endorsement deals after your ex-wife accused you of abuse. You can sue your ex-wife for defamation, as Depp did, and get compensation for your lost income and business opportunities.
You can also ask for compensation for defamation-related out-of-pocket expenses, like therapy bills, online content removal, and moving expenses.
General Damages (Non-Economic Damages)
General damages are meant to compensate plaintiffs for intangible losses like “pain and suffering.”
General damages aren’t available in all defamation cases. In some states, general damages are allowed in libel (written) defamation cases, but not slander cases. Many online defamation cases are libel claims because they involve written posts and comments. But videos posted on increasingly popular platforms like TikTok don’t fit neatly under libel or slander labels. Videos aren’t written and published, but they aren’t like gossiping with your neighbor or making a comment at a public meeting either. The law in this area is still unsettled and is likely to evolve as technology changes.
Punitive damages are available in some defamation cases. They aren’t designed to compensate plaintiffs for their losses, but rather to punish defendants for bad behavior and send a message about the negative consequences of spreading lies about people online.
How Do I Know Who to Sue for Online Defamation?
The most obvious person to sue for defamation is the person who defamed you online, but that person might not have much money to pay damages or the defamatory comments may have been posted anonymously.
Can I Sue an Internet Service Provider?
If you’ve been defamed online, it’s natural to want to sue the internet service provider (ISP) of the website that hosts the defamatory content, like Meta (Facebook), Twitter, or Yelp. After all, a big tech company is likely to have deeper pockets than the internet troll who is defaming you and you might genuinely believe that ISPs should bear some responsibility for the content on their sites.
But, for better or for worse, a federal law called the Communications Decency Act blocks you from suing ISPs for most defamation claims.
What If the Defamatory Statements Were Posted Anonymously?
Before you can file a defamation lawsuit, you have to figure out who posted the defamatory statements. Some people use their own names, email addresses, or social media accounts to make defamatory comments. But many people hide behind anonymous accounts or use the accounts of other people to conceal their identities when they spread lies on the internet.
You’ll likely need the help of a lawyer to suss out who the defendant might be. One strategy some plaintiffs use is to file a John Doe or “unknown defendant” lawsuit. Filing a John Doe lawsuit allows you to get your lawsuit filed within the statute of limitations and gets the discovery process started so that you can subpoena ISPs and identify the anonymous poster.
Where Can I Sue?
Where you file your lawsuit is important. You have to file in a state or federal court that has the authority to hear and decide your case (called “jurisdiction”).
You may be able to file your online defamation lawsuit where:
the defendant lives, or
where you have experienced loss or damage as a result of the defamation.
If you think that you have been defamed online, you should talk to a lawyer to discuss your legal options and decide where you should pursue your claim.