As social networking sites and internet blogs continue to increase in both popularity and use, the opportunities for defamatory and libelous actions increase proportionally. Defamation, sometimes called "defamation of character", is spoken or written words that falsely and negatively reflect on a living person's reputation. Slander is generally spoken defamation, while 'libel' is written. Blogs or social networks in which defamatory statements are written or recorded present several potential sources of liability and recovery for the person whose character was defamed. In cases where the defamation is proved, damages are presumed and often enforced with liberality.

Operators of blogs are generally immune from liability for defamatory statements posted on their websites, as long as they did not contribute to the posting. In 2003, the Ninth Circuit Court of Appeals ruled that a listserv moderator and operator of a website which allegedly published defamatory statements provided by a third party was eligible for immunity under the Communications Decency Act (CDA). Batzel v. Smith, 2003 US App.LEXIS 12736 (9th Cir. 2003). However, if the online service provider plays an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the application of the safe harbor of the Communications Decency Act (CDA). The defendant in that case operated a matchmaking website known matchmaker.com. As part of its service, the defendant collected profiles of singles based on an extensive questionnaire. The plaintiff sued Metrosplash because of a false profile of her which an unknown user had posted to the website. The court ruled that by creating the extensive questionnaire, Metrosplash played an active role in developing the information that had been posted. Furthermore, the court ruled that Metrosplash was an information content provider and thus not eligible for the CDA's safe harbor provided to "interactive computer services." Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) C.D. Cal. 2002) (subsequently reversed by appeals court). While operators of blogs and services are generally immune from such liability, the more active the service is with its member's, the greater the likelihood of potential liability as a publisher of defamatory materials.

Another potential source of liability is the person who actually posted the defamatory materials. As with more general defamatory statements or materials, a poster can be held personally liable for anything posted which reflects falsely and negatively on a living person's reputation. Posting false and explicit claims regarding a person will generally be held as defamatory for purposes of liability. However, other issues arise concerning the anonymity of the person posting the information, and if known, the jurisdiction in which they are subject.

Jurisdictional issues may arise in situations where the poster had no reason to expect that the effect of the posting would be felt in a certain jurisdiction. However, in defamation cases jurisdictional disputes are liberally ruled upon in favor of the victim. In Griffis v. Luban, the Minnesota court of appeals ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. The defendant repeatedly posted messages on an Internet newsgroup attacking the plaintiff's professional credentials. The plaintiff initially obtained a $25,000.00 default judgment in Alabama, which she was seeking to enforce in Minnesota. The Minnesota court ruled that the Alabama court had properly exercised jurisdiction because the effects of the messages were felt in Alabama and that the defendant should have expected that she would be sued there. An important factor in the ruling was that she had actual knowledge of the effect of the defamatory statements on the Defendant. Therefore, the Minnesota court enforced the $25,000.00 default judgment. Griffis v. Luban, 633 N.W. 2d 548 (Minn Ct. App. 2001).

However, there are cases where courts have refused to allow the exercise of personal jurisdiction based on defamatory statements. In a Pennsylvania case, the court refused to exercise jurisdiction over a New York defendant who had posted defamatory comments about a defendant on an offshore betting website. The court held that since the comments were not specifically directed at Pennsylvania, the court could not exercise personal jurisdiction over the defendant. English Sports Betting, Inc. v. Tostigan, C.A. No. 01-2202 (E.D. Pa. 2002).

The problems with bringing defamatory actions based on internet postings largely lie in proving that the defendant actually made the posting. If that connection can be made, a much stronger case can be presented and jurisdictional issues can be tackled. An attorney who is experienced in cyberlaw and internet cases can improve your chances in prevailing in any such case. Without the help of an attorney who can find and connect the evidence, most internet defamation cases will fail for lack of evidentiary sources and experience.

By: Nicholas J. Deleault
This article was written by Nick Delaunt, for the Law firm of Goldstein and Clegg, LLC, a law firm representing clients in online defamation actions.

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Comment from Christopher Grell, grelllaw@yahoo.com January 20, 2007.

I read your blog about libel on the Internet. Since it recently popped up on a news search that I have in place, I assume that it was written not to long ago. Either way, I wanted to bring to your attention a recent California Supreme Court case which held that "only the author of a libelous internet post can be held liable because Section 230 of the Communication decency Act grant absolute immunity to everyone except the author of the publication, blog or post.

Welcome to the wild west of Internet Free Speech, where anyone who wants to do so, can find the most offensive and libelous post about someone, click, copy and then past the post, publication , maybe even photo's, with absolute immunity.

The name of the case is Barrett v. Rosenthal. I have the cite if you can not find it.

GEG

Despite the best intentions of the parties business relationships sometimes sour. Both sides may view their respective position as reasonable and their business practices as ethical. However, it is well known within the law that reasonable minds can differ. When positions grow roots and refuse to bend business disputes can and do occur.

Depending on what is at stake the business people involved in the dispute may think about filing a lawsuit especially when informal efforts to resolve the dispute fail. To be sure, courts of law are places to resolve disputes. But they are not particularly efficient or cost effective at least not from the perspective of the person trying to run a business.

A chief disadvantage to using the court system is the parties lose all control in the outcome. Basically a judge or jury is asked to make the decision. The nature of the courthouse is it makes a “winner” and a “loser”. The fact of the matter is every “loser” loses and many “winners” likewise lose because of expense, time and attention away from the business.

Further, a party may be so entrenched in their position that they give no thought to the possibility of losing when lo an behold they are unpleasantly surprised. The fact of the matter is the outcome of a lawsuit is unpredictable. No one can really call it. In fact, that’s why many lawsuits are settled: risk.

Additionally, the litigation process is very galvanizing. Once the process has begun it is highly unlikely that parties reconcile their differences and continue to do business together. This fact may have an additional detrimental economic impact on one or both parties.

We have not even touched on what legal fees can be to litigate a case. As I am sure is no surprise, they can be quite high. Don’t get me wrong; I don’t begrudge attorneys their fees. Before I was lawyer I too would complain about the cost of legal services. However, as a former litigator I know the effort, work and stress involved in zealously representing clients in a lawsuit. Be that as it may, the fact that attorneys are justified in their fees doesn’t make it any easier for the small businessperson to pay them.

Consequently, businesspeople involved in a dispute are faced with a conundrum: How to economically and efficiently resolve the conflict. Fortunately, there is a cost effective, time efficient alternative to litigation. It’s called mediation and it can be done anytime with or without hiring lawyers.

Mediation is an informal process where the parties to the dispute come together with a third party neutral person to air their differences. Not to the mediator, to each other. Typically this takes place in a conference room where the mediator sets out the ground rules. Both parties are given uninterrupted time to have their say. The mediator then will usually separate the parties in different rooms in what is known as the “caucus”. After learning the positions of the parties, with their respective strengths and weaknesses, the mediator will communicate with the parties separately in an effort to try and hammer out a resolution to the conflict. And here’s the good news: mediations are successful at resolving business disputes up to 90% of the time.

It should be understood that mediators don’t independently make the decision as to how the conflict should be resolved. Rather the mediator facilitates communication between the parties and gives them the tools to craft there own agreements.

Another key advantage is mediation is relatively speaking much less expensive than litigation. Although mediation fees vary, a typical full day mediation can run between $750 to $1250 per party.

If you are a faced with a business dispute that you just can’t seem to resolve by yourself, talk to your attorney and consider mediating the conflict before pulling the trigger on a lawsuit.

By: Daniel Hall
Daniel Hall, is an attorney and mediator. His mediation practice is based on the South Side of Corpus Christi,Texas and he enjoys helping businesspeople resolve their conflicts through the mediation process. Learn more at http://www.danielhallesq.com/mediate.html

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