The Problem of Personal Jurisdiction in Cases of Online Defamation

​By Susann Nordvik
 
As the Information Age reaches the pinnacle of its estate, courts continue to struggle with questions of jurisdiction over disputes arising out of information and commentary posted online, usually on social media.  The courts in most jurisdictions have managed to find ways to shoehorn traditional notions of personal jurisdiction into the narrow slipper of internet discourse.  Nevertheless, there are classes of cases that continue to slip through the cracks in the carefully crafted framework. 

For example, most courts have taken what we would now consider “old timey” analyses of jurisdiction based on writing and telephone calls and applied them to online business transactions.  This is fine, because in the old days, one might be greeted by a door-to-door salesman, or receive a cold call from an enterprising telemarketer, and the resulting transaction is not unlike the type of situation one might have today by placing an order on Amazon.  Prior notions of “systematic contacts” and “minimum contacts” would still apply quite readily.  Thus, when you have an entity like Amazon, which has warehouses in many states across the country, and which processes billions of dollars in transactions annually, visiting virtually every home at least once, one could probably say that Amazon maintains “systematic” business contacts in every state in the Union. Therefore, Amazon as an entity could reasonably anticipate being haled into court in any one of the states for any issue that arose.

However, what happens when someone gets in an internet scrap with a “keyboard cowboy,” on Twitter, Reddit, or Facebook, only to subsequently find their good name associated with all kinds of bad conduct and various libelous references?  In those cases, the bad actor is not always easy to track down, and the “support” coming from the various tech giants is almost universally underwhelming.  Nevertheless, if by some miracle you are able to divine the identity of the transgressor, but you also find out (wait for it) he is on the other side of the country.  Now what?  Conventional wisdom would suggest that if you wanted to bring the scallywag before the court, you would have to file in his home state and county.  This is simply because you have a private actor sending messages out into the Twittersphere from the safety of his or her own home, and who may not even be aware of your location, much less intentionally availing him or herself of the benefits of the law of your home state.

In general terms, the idea of being sued in a court in a foreign jurisdiction is somewhat daunting, as you may be unable to travel and defend yourself in a meaningful way from 2,000 miles away.  This is why the United States Supreme Court in its landmark decision International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) determined that the Due Process Clause demands that personal jurisdiction must be exercised only if doing so does not offend “traditional notions of fair play and substantial justice.”  Id.  Virginia’s long arm statute, Virginia Code, § 8.01-328.1, was crafted with the concepts espoused by the International Shoe Court in mind.  However, application of those concepts in the world of Reddit and Facebook has proven challenging. 

Although the Virginia Supreme Court has not addressed the specific issue outlined in my “keyboard cowboy” example, you can develop hypotheses regarding the likely outcome of such a case by review of what courts have held when a nonresident writes a defamatory letter outside the forum state and mails it into the forum.  Previous cases have determined that such an act is not a “tortious act” within the forum as required under the Commonwealth’s long arm statute.  See St. Claire v. Righter, 250 F. Supp. 148, 151 (W.D. Va. 1966) disapproved on other grounds, Beaty v. M.S. Steel Co., 401 F.2d 157 (4th Cir. 1968); Loria v. Regelson, 38 Va. Cir. 283, 287 (1995). Similarly, defamatory remarks made by a nonresident over the telephone to a person receiving the call in Virginia are considered to have originated outside the forum and, thus, do not constitute an act within the state.  Bochan v. La Fontaine, 68 F. Supp. 2d 692, 700 n.26 (E.D. Va. 1999).

In St. Claire v. Righter, the United States District Court for the Western District of Virginia found that a defamatory letter sent to Virginia from outside the state did not establish personal jurisdiction over the defendant under the “tortious act” provision of the long arm statute.  250 F. Supp. at 151. The court reasoned that while the tortious injury occurred in Virginia, the harm was actually “caused by the act of writing and mailing the letters outside of Virginia.”  Id.  

Although the distinction may seem impossibly subtle, there is actually good reasoning behind it.  This is due to the manner in which the various provisions of the long arm statute work together.  Virginia Code, § 8.01-328(A)(3) provides that a court may exercise jurisdiction when an act within the Commonwealth causes tortious injury.  By contrast, § 8.01-328.1(A)(4) applies to tortious injury arising from an act outside the Commonwealth.  However, this latter provision only applies when the tortfeasor “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth.”  Consequently, the St. Claire court determined that a contrary holding would render Code § 8.01-328.1(A)(4) “completely obviated, as every set of facts which give rise to tortious injury could be brought within the terms of paragraph (3).” 250 F. Supp. at 151.

This rationale has been extended by the federal courts reviewing conduct occurring over the internet.  In Bochan v. La Fontaine, the United States District Court of the Eastern District of Virginia addressed the issue of whether defamatory remarks posted on the internet constitute a tortious act in Virginia under Code § 8.01-328.1(A)(3).  68 F. Supp, 2d at 694-703.  In Bochan, Texas and New Mexico residents separately posted defamatory remarks about a Virginia resident on an internet newsgroup.  Id. at 695.  The court held that Virginia’s long-arm statute did not grant jurisdiction over the New Mexico resident under (A)(3).  Id. at 700.  The court rejected the plaintiff’s argument that the tortious act occurred in Virginia merely because the defamatory remarks that originated in New Mexico were published in Virginia.  Id. at 700 n.26.  However, the court noted that because the statements made by the Texas resident were transmitted through a server that was physically located in Virginia, this constituted an act within the Commonwealth, and subject to jurisdiction under § 8.01-328(A)(3). 

At least one Circuit Court, Nathan v. Takeda Pharmaceuticals America, Inc., (Fairfax Cir. 2011) applied the rationale of Bochan and left open the possibility of exercising personal jurisdiction over a defendant who initiated an email or internet post in another state, but the material was then transmitted through a server or internet provider resident in Virginia.  This is an important consideration due to the fact that a number of social media platforms, such as Twitter, utilize data housing and servers provided by Amazon from its Northern Virginia data centers.  Consequently, a Virginia resident that has suffered defamation over the internet based on social media posts and commentary may be able to obtain a measure of relief in his or her home state, rather than having to resign themselves to a long-distance legal affair.  This possibility is not without its risks, however.  The tech giants tend to keep the whereabouts of their server facilities under tight wraps for security and other similar reasons.  Thus, the courts are likely to grasp on the idea that a would-be defendant is probably completely unaware that his or her nefarious missive would pass through the Dominion on its way to the “internet of everything.”  This returns us to the inevitable questions of purposeful availment, and ever-present balancing act of “traditional notions of fair play and substantial justice.”

If you're considering a defamation lawsuit in Virginia or Washington, D.C., especially if the defendant is not in the same state as you, please contact us for a consult about personal jurisdiction. 

By Katarina Nguyen
 
I.          What is defamation?
 
The elements of defamation in Virginia are “(1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 612 S.E.2d 203, 206, 269 Va. 569 (Va. 2005). In litigation, the plaintiff has the burden of proving that a defamatory statement is false. Id. at 206-07 (citing Williams v. Garraghty, 249 Va. 224, 235, 455 S.E.2d 209, 216 (Va. 1995)). The standard for the burden of proof is by the preponderance of the evidence. Gazette, Inc. v. Harris, 229 Va. 1, 15, 325 S.E.2d 713, 724-24 (Va. 1985). “Preponderance of the evidence” is the standard burden of proof for most civil cases, which is a lower standard than “beyond a reasonable doubt” in criminal cases and “clear and convincing evidence” in certain types of civil cases.
 
The first element simple enough to understand: the defamatory statement has to be shared with other people. The third element gets more complicated with different types of intents for different types of defamation, but the general concept is still clear: the person making the defamatory statement had to intend it to be so. However, the second element tends to be the trickiest.
 
II.        What is an actionable statement?
 
The Virginia Supreme Court has held that an “actionable statement” is one that is both false and defamatory. Id. (citing M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d 375, 378 (Va. 1944)). Being a false statement is not enough to be actionable--the statement must also be defamatory. Conversely, being a defamatory statement with the required “sting” is not enough to be actionable--the statement must also be false.
 
III.       What is the defamatory “sting”?
 
The Court refers to this as the defamatory “sting” needed for the statement to be actionable. Schaecher v. Bouffault, 290 Va. 83, 92, 772 S.E.2d 589, 594 (Va. 2015). Actionable statements with the required defamatory “sting” are those that harm the person's reputation so much so that third parties or the community as a whole holds a poorer estimation of him or her, or that third parties feel deterred from associating with him or her as a result of the statement. Id. at 91-92, 772 S.E.2d at 595 (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d 1097, 1092 (4th Cir. 1993)). Statements with the required defamatory “sting” also tend to shame or disgrace the person, cause others to scorn, contempt, or ridicule him or her, and gives him or her a ridiculous, odious, or infamous reputation. Id. at 92, 772 S.E.2d at 594.
 
IV.       What qualifies as a defamatory “sting” and an actionable statement?
 
While the definition of an “actionable statement” is broad, the Virginia Supreme Court has established certain categories of actionable statements as having a strong defamatory “sting”, so much so that the plaintiff would not have to show how exactly he or she was injured by the statement. Great Coastal Exp., Inc. v. Ellington, 334 S.E.2d 846, 849, 230 Va. 142, 146-47 (Va. 1985). These are actionable statements that constitute defamation “per se”. Actionable statements that do not constitute defamation per se are categorized as defamation “per quod”.
 
The four types of actionable statements that are defamatory per se are as follows:
 
1.     Stating that the person committed a criminal offense involving moral turpitude which, if charged, could result in indictment and punishment.
2.     Stating that the person is infected with a contagious disease which, if true, would exclude that person from society.
3.     Stating that the person is unfit to perform their official duties or job duties, or that the person lacks integrity to perform such duties.
4.     Making a statement that would prejudice the person in his or her profession or trade.
 
Id.
 
The Virginia Supreme Court has ruled that a crime of “moral turpitude” is where the offense is so base, vile, or depraved either in private or in social settings and is contrary to customary rules governing what is right and the duties that people who to each other.  Id. at 850 (quoting Tasker v. Commonwealth, 202 Va. 1019, 1024, 121 S.E.2d 459, 463 (Va. 1961)).
 
The statements have to strictly meet the foregoing requirements to qualify as actionable on a per se basis. For instance, falsely stating that the person drove a vehicle with expired registration tags perhaps may qualify as defamatory, but because no reasonable person would consider failing to renew their vehicle registration to be a base, vile, or depraved act, this statement would not qualify as actionable per se. Similarly, falsely stating that the person contracted influenza may be defamatory, but because it would not exclude that person from society, it would not be actionable per se.
 
V.        What doesn't qualify as a defamatory “sting” or an actionable statement?
 
Because there is a broad spectrum of what meets the definition of an actionable statement, it can often be easier to define an actionable statement by what does not qualify as actionable or otherwise lacks the required defamatory “sting”.
 
A.             Absolute Privilege
 
The Virginia Supreme Court has held that statements made as part of a judicial proceeding, so long as those statements are both material and relevant to the matter, are protected by absolute privilege. Mansfield v. Bernabei, 727 S.E.2d 69, 73 (Va. 2012) (citing Donohoe Constr. Co. v. Mt. Vernon Assocs., 235 Va. 531, 537, 369 S.E.2d 857, 860 (Va. 1988) (internal quotations omitted). Absolute privilege is not limited to just those statements made within a courtroom. Id. However, this privilege does not extend to “mere potential litigation”, so statements made prior to litigation may be actionable.  Id. (citing Lindeman v. Lesnick, 268 Va. 532, 537-38, 604 S.E.2d 55, 58 (Va. 2004)). But statements made as part of attempted settlement negotiations related to seriously considered proposed judicial proceedings are protected by absolute privilege if those statements are only made to people with an interest in the proposed judicial proceeding and the statements themselves are material and relevant to the matter. Id. at 75.
 
An example of a privileged pre-litigation statement is if the person prepares a settlement proposal or draft of a judicial filing and circulates it among parties who would be involved in the potential lawsuit. Statements made during the litigation, including in the courtroom, judicial filings, or at depositions, are also protected by absolute privilege.
 
B.             Qualified Privilege
 
The Virginia Supreme Court has recognized a defense of qualified privilege to what would otherwise be actionable statements. This type of privilege covers statements where the person making the statement has an interest or duty in the subject matter of the statement. 286 Va. at 338, 749 S.E.2d at 533 (citing Larimore v. Blaylock, 249 Va. 568, 572, 528 S.E.2d 119, 121 (Va. 2000)).
 
A classic example of qualified privilege is demonstrated by the case of Cashion v. Smith. In that case, two surgeons were providing emergency treatment to a patient, who died during the surgery. After the treatment, one of the doctors made several statements about the other doctor in front of the other members of the treatment team, including stating that the other doctor “purposefully didn't resuscitate” the patient, implying that the other doctor euthanized the patient. The Virginia Supreme Court affirmed the trial court's ruling that the statements were not actionable because the doctors both had an interest or duty in the subject matter of the statement, namely the quality of the patient's treatment.
 
However, simply because the person making the statement has an interest in the subject matter of the statement does not mean that he or she can say anything without consequence. Qualified privilege can be revoked if the plaintiff is able to show that (1) the person making the statement knew it was false or recklessly did not care if it was true or false, (2) the person making the statement communicated it to a third party with no interest or duty in the subject matter, (3) the person making the statement did so out of ill will or personal spite, (4) the person making the statement used disproportionately violent or strong language when compared against what was being alleged, or (5) the person making the statement did so in bad faith. Id. If any one of those arguments applies, then qualified privilege can be revoked.
 
Using the above Cashion v. Smith scenario as an example, if the doctor accusing the other doctor of purposefully failing to resuscitate the patient actually knew that the other doctor did, in fact, try to resuscitate the patient, but then made that statement anyway, then the qualified privilege is revoked and the statement becomes actionable.
 
C.            Rhetorical Hyperbole
 
The Virginia Supreme Court has held that statements qualify as rhetorical hyperbole and, therefore, are not actionable, if a third party could not reasonably infer from the statement that the person actually engaged in the described conduct. Cashion v. Smith, 286 Va. 327, 339-40, 749 S.E.2d 526, 533 (Va. 2013 (quoting Yeagle v. Collegiate Times, 255 Va. 293, 296, 497 S.E.2d 136, 127 (Va. 1998)). Rhetorical hyperbole can also encompass statements that are offensive, inappropriate, or insulting. 290 Va. at 92, 772 S.E.2d at 594. These types of statements lack a defamatory “sting” due to the fact that most reasonable people would not believe the statements as being the truth.
 
Exaggerations and extreme-language tends to qualify as rhetorical hyperbole. For example, a statement such as, “This person is a pig because they ate all of the restaurant's food in one meal,” would be considered rhetorical hyperbole because no reasonable person would believe that the subject person was a literal pig or that a single person could eat an entire restaurant's stock of food in a single sitting.
 
However, rhetorical hyperbole can still cross a line, carry the required defamatory “sting”, and therefore be deemed actionable statements under certain circumstances. If the statement accuses the person of lying, then an average third party reading or hearing that statement would not know if that statement was hyperbole or not.  Schaecher v. Bouffault, 772 S.E.2d 589, 599 (Va. 2015). Because of that, statements that accuse the person of lacking honesty or being a liar have been ruled as being potentially actionable statements depending on the circumstances. Id. at 600.
 
D.            Opinion
 
The Virginia Supreme Court has exempted statements of opinion from being deemed actionable statements because, like rhetorical hyperbole, they lack the required defamatory “sting”. In discussing what constituted an opinion, the Court defined it as being largely dependent on the speaker's point-of-view and being relative in nature. 286 Va. at 336, 749 S.E.2d at 533. But if the opinion is couched in language with factual connotations that can be proven false, then those statements can be actionable. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 575 S.E.2d 858, 861-62 (Va. 2003) (quoting WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (Va. 2002)). And insinuations within an opinion can cause the statement to become actionable. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 47, 670 S.E.2d 746, 751 (Va. 2009).
 
Using the previously explained scenario from Cashion v. Smith, the doctor's statement that the other doctor “purposefully didn't resuscitate” the patient is not an opinion because there are factual connotations and insinuations in that statement that can be proven false, which is either than the other doctor failed to perform the resuscitation treatment or actively stopped the resuscitation treatment from happening. But that doctor's remaining statements about how the other doctor “didn't really try”, gave “a very poor effort”, and “gave up on” the patient were all deemed to be opinions because they entirely depended on that doctor's point-of-view and were subjective in nature.
 
E.             Truth
 
The truth is always a strong argument against an alleged actionable statement. However, the defendant no longer has to raise the truth as an affirmative defense in defamation cases. 229 Va. At 15, 325 S.E.2d at 725. Rather, the plaintiff has the burden of proving that the actionable statement is both defamatory and false. Id.
 
VI.       What should I do if I think someone defamed me?
 
Defamation cases are all very fact-specific, meaning that no two cases are exactly alike. You will need to have the precise words that the person spoke or wrote in order to proceed with a defamation case in court. And you will also need background information and perhaps other statements that were made to establish the circumstances, conditions, and context of your case, which all directly impact the strength of your defamation case. And bear in mind that the statute of limitations for defamation is one year from when the cause of action accrues, which is generally from the date of the statement's publication. Va. Code Section 8.01-247.1. That means that if you suspect you have been defamed, you need to maintain a record of the statement, if possible, and determine whether to take legal action sooner rather than later.
 
If you need assistance in determining whether you have a potential defamation claim, please contact us for a consultation.

By Steven Krieger

As a consumer, you likely have many interactions with businesses each and every day.  Most of those interactions are innocuous and you never give them a second thought. However, on occasion, you may have a really wonderful experience with a particular business or a really terrible experience with another business.
 
If you’re active on social media (and even if you’re not), you may decide to leave a review for the business on a website like Yelp, Angie’s List, Google+, Bing, or Yahoo, to inform your fellow consumers about the details of your experience.
 
In fact, many businesses encourage consumers to leave positive reviews.  If a positive review was written, everyone is happy.  

But, what happens when your experience is negative?  Typically, the consumer attempts to resolve the dispute with the business and the business has an opportunity to do “do right” by the consumer.  Unfortunately, sometimes the dispute cannot or will not be resolved and the consumer goes online and leaves a negative review about the business and the experience.
 
Local business (big or small) take these negative reviews very seriously.  In fact, if the business is able to identify the consumer who left the review, the business may file a complaint in court and will likely claim that the review is defamatory. 
 
Defamation is the general term that describes a printed (libel) or spoken (slander) statement that hurts ones character or reputation.  A negative review posted online will likely harm a business and could be defamatory -- libel, specifically.  However, if the statements are truthful or entirely subjective, the consumer has a valid defense against such a defamation claim.
 
But, even if the consumer has a valid defense, the consumer still must defend the defamation claim, which will cost the consumer time and money.  In the 1990’s, business began to sue or threatened to sue consumers primarily for the purpose of intimidating consumers into removing the negative reviews. The Public Participation Project explains it best: “[t]hese types of lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPPs).  SLAPPs are used to silence and harass.  [Businesses filing these complaints in court] don’t go to court to seek justice, but instead, to intimidate those who disagree with them or their activities” and who speak out.  In 1992, Delaware became the first state to pass an Anti-SLAPP Act.  Currently, there are almost thirty states that have passed some type of Anti-SLAPP Act and the Public Participation Project is trying to pass federal Anti-SLAPP legislation. The Anti-SLAPP acts were passed to help consumers defend against harassing lawsuits filed to stifle First Amendment freedom of speech rights.
 
D.C. passed an Anti-SLAPP act that became effective on March 31, 2011 and was codified as D.C. Code § 16-5501 to 16-5505.  The D.C. Anti-SLAPP explains that these SLAPP suits should be dismissed if (1) “the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” and (2) the business cannot “demonstrate[] that the claim is likely to succeed on the merits.” See D.C. Code § 16-5502(b).
 
In other words, if the consumer who posted the negative review on Yelp or anywhere else online is able to demonstrate that the review (or any other type of statement -- online or offline) was made to further some type of advocacy on an issue of public interest, then the business must demonstrate that the business is likely to win the case if the court allows the case to proceed. Otherwise, the lawsuit filed by the business must be dismissed and the consumer’s negative review may remain online.
 
In addition to allowing the consumer to immediately file a motion to dismiss and avoid the hassle of time-consuming and expensive litigation, the D.C. Anti-SLAPP Act of 2010 allows the consumer to recover attorneys’ fees if the consumer prevails with the Anti-SLAPP defense in whole or in part.  Specifically, §16-5504(a) states: “[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under § 16-5502 or § 16-5503 the costs of litigation, including reasonable attorney fees.”
 
The attorneys’ fees provision is critical because without the ability for the consumer to recover these fees, the consumer may not be able to afford an attorney to file the special motion to dismiss and the consumer may decide to simply remove the negative review instead of defending the lawsuit, which is exactly what the business was hoping for all along.
 
If you’ve had a negative experience with a business and posted a negative review for the business online (Yelp, Angie’s List, Google+, Bing, Yahoo, or anywhere else – online or offline), which resulted in the business filing a lawsuit against you in D.C., the D.C. Anti-SLAPP Act was designed to help you defend yourself against this type of lawsuit from a business that likely has access to more resources, including money, than you.
 
If you’re defending yourself against a SLAPP suit, please feel free to contact my office for a consultation.  

By: Audrey Henderson

If you read my first blog post on Why is Defamatory or Libelous Content Allowed Online?, and have determined that the content posted by your wife, husband, boyfriend, girlfriend, etc. is defamatory, the next step is trying to remove the content. 

If there’s only one copy of the defamatory content, destroying it may not be too difficult, but given new technology and the digital world, most content makes it online and then removal becomes exponentially more challenging. 

There are three potential avenues to remove defamatory content posted online: the original publisher, the website, and the website hosting service provider.  Websites and hosting service providers are generally protected by the Communications Decency Act of 1996.  Specifically, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  The reason this Act was created was because Congress realized that the internet was being offered as a new forum for free speech, the exchange of ideas, and political debates.  Id. § 230(a)(3). 

Furthermore, websites that provide a forum for others to potentially post defamatory statements are often staunch defenders of the First Amendment and are not likely to take down the offending content.  For instance, if a person asks a website to remove false comments about them, how will the website know what’s true?  Which party is lying? Perhaps the most notable of these sites, thedirty.com, explains that “because [they] have no way of knowing which side is telling the truth and which side is lying” they will not take down the content. 

However, just because a website owner cannot be liable, does not mean that the party who actually posted the defamatory statements on the website can escape liability.  Zeron v. America Online, Inc., 129 F. 3d 327, 330 (4th Cir. 1997).  As discussed in my last post, Why is Defamatory or Libelous Content Allowed Online?, liability depends on your ability to meet the defamation standard.   

Defamation Standard

For a private figure plaintiff, the standard that applies to most of us, suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

So, How Am I Supposed to Get the Defamatory Content Removed?

There are at least four options to explore when attempting to get the offensive content removed.  The first is to take legal action and file suit against the individual who posted the content online.  Based on the standard discussed above, a court will either grant or deny your claim.  If you are granted relief, you can give your court order as proof to the website provider and they may remove the defamatory content. 

A second option is to explore the website’s Terms of Service, all social media sites like Facebook, Instagram, Twitter, Tumblr, etc. and some of the cheater websites like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or the negative review sites like Bad Scalpel, and Bad Business R Us, etc. have Terms of Service.  It could be helpful to review the Terms of Service for each site and see if the content violates any of the terms.  If so, the website likely has a system in place for you to report violations of their terms of service. 

A third alternative is to use an “arbitration” service.  Some of the sites that serve as a platform for defamatory content have agreements with an independent arbitrator service.  When arbitration is used, the arbitrator will investigate the alleged defamatory statements posted by the original publisher.  If the publisher provides sufficient proof, then it is likely that the post will not be removed, but if the content is baseless, it may be removed.  However, not every site that may contain defamatory content has agreed to work with an arbitration service.  For the “cheater websites” like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or Dating Psychos or the negative review sites like Bad Scalpel, and Bad Business R Us, check and see if they have a specific agreement with InternetReputationControl.com or a similar company.  This company, for a fee, will pay for an arbitration service and will additionally represent you during the removal process.  Just like the arbitration process, the arbitrator will investigate the claim and come to a determination of whether the statements made are true. InternetReputationControl.com then recommends to the website provider whether the content should be removed from the website.  While the websites who have agreements with Reputation Control have said they will follow the recommendations made, Reputation Control states that they cannot always guarantee success.  Finally, some websites maintain their own internal removal options like accepting payment in exchange for removal of the offending content.  Other sites may remove content if you give them proof that what was posted is false.  However, a handful of these websites do not provide any removal options and retain the right to keep or remove the content regardless of proof. 

A fourth way to remove content from a website is to explain to the website that the content falls into a protected category or that some exception or exclusion applies under the Communications Decency Act of 1996 and thus they must remove the content.  This may be especially useful for removing content from social media sites like Facebook, Twitter, Instagram, and cheater websites.  Below are several exceptions from the Act of 1996 that may assist your removal efforts. 

(1) No effect on Criminal Laws – As mentioned in my first defamation blog, there are certain areas of speech that are not protected by the First Amendment.  Website owners must still abide by federal and state laws.  Posts in regards to unprotected obscenity and child pornography will still be illegal.  Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).

(2) Intellectual Property Claims – Under the Digital Millennium Copyright Act of 1998, if you have copyright ownership of certain pictures or phrases, you can send a violation notice to a website owner to remove the content.

(3) State law Violations – The Communications Decency Act cannot prevent State laws or common-law doctrine that require website providers to protect the interest of third parties.

(4) Communications Privacy Laws – Depending on the type of communication, one can argue that under the Electronic Communications Privacy Act provides that any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic mechanical, or other device to intercept any oral communication” faces civil liability.  18 U.S.C. § 2511(1).

If none of the above applies, you have two more avenues depending on your circumstances.  First, if the website provider edits content that alters its meaning into a defamatory statement, then the website provider may be held liable for defamation.  Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263-64 (N.D. Cal. 2006).  Second, some jurisdictions allow the plaintiff to recover based on promissory estoppel.  In defamation situations where the website provider promised to take down defamatory content and the plaintiff relied on that promise, but the website provider never took the content down, the plaintiff can then argue promissory estoppel.  Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1107 (9th Cir. 2009).

While this information may seem daunting, given that website owners are generally not liable for what is published, there is still hope that you’ll be able to remove the defamatory statements from the internet – it just may take more time and effort than you expected.

By: Audrey Henderson

Introduction

People make comments every day, but why are some comments allowed and other comments considered defamatory?  Doesn’t the First Amendment protect all the comments?  The Virginia Supreme court has defined defamation as words or content that create a substantial danger to an individual’s reputation or good standing.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  Additionally, words that contain and accusation or “an imputation necessarily harmful to reputation” may also be considered defamation.  Id. at 23.  This includes both slander (verbal) and libel (written).  To determine if the content is defamatory, you have to evaluate what was said and who was the subject matter.   

What Was Said and is it Protected by the First Amendment Freedom of Speech? 

Generally, speech is protected by the First Amendment.  When the Constitution was created, the founding fathers wanted to protect against the British sedition and licensing restrictions of the press, where individuals were not allowed to criticize the government at all. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 4th ed. New York: Wolters Kluwer Law & Business, 2011. 950-969.  The Constitution was drafted to promote four fundamental ideas: self-governance, truth, societal tolerance, and individual autonomy/self-expression.  Massey, Calvin R. American Constitutional Law: Powers and Liberties. 4th ed. New York: Wolters Kluwer Law & Business/Aspen, 2013. 849-853.  The Supreme Court explained that the idea of free speech is to create a free marketplace for the exchange of ideas.  Free speech encourages public debate and ideas in the hope that the truth will eventually rise to the top.  New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964). 

While the First Amendment protections are critical to our American society, they also make it very difficult to force people to remove libelous content unless if falls into one of the unprotected categories created by the Supreme Court.  These unprotected categories include incitement of immediate crimes, true threats, fighting words, obscenity, and child pornography.  See Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement of immediate crime); Virginia v. Black, 538 U.S. 343 (2003) (true threats); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).  Additionally, other categories of speech may receive protection under the First Amendment depending on the situation.  These include commercial speech and torts based on speech such as defamation and intentional infliction of emotional distress.  See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (commercial advertising speech); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation of public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (defamation of private figures); Hustler v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress of public figures); Snyder v. Phelps, 562 U.S. 443 (2011) (intentional infliction of emotional distress of private figures). 

Therefore, an angry husband, wife, girlfriend, boyfriend, or anyone else can post mean-spirited content online – especially, if it’s true (more on this below).  The reason may not be fair, but the First Amendment allows for the freedom of expression through speech, so generally, even hate speech, offensive speech, and opinions will be protected under the First Amendment.  See Virginia v. Black, 538 U.S. 343 (2003) (hate Speech); Cohen v. California, 403 U.S. 15 (1971) (offensive speech).

Who was the Communication About -- Public Individual vs. Private Individual?

A public figure is a person who plays an influential role in society and has ready access to the mass media.  They are usually people who voluntarily thrust themselves into the light of public questioning, and by reason of their fame, shape events in areas of concern to society at large.  See Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).  Examples include politicians, celebrities, and public officials.  If a person does not fit into the category of a public figure, then they are considered a private figure.  In other words, most of us fall into the private figure category.

How Do I Know if the Posting is Defamatory or Libelous? 

A statement is defamatory if it tends to harm the reputation of another in a way that lowers his/her good standing within the community, and thus deterring others from associating with that person.  Bell v. Nat’l Republican Cong. Comm., 187 F. Supp. 2d 605, 615 (S.D. W. Va. 2002).  Statements that are merely offensive unpleasant are not defamatory.  Chaves v. Johnson, 230 Va. 112, 119 (1985).  It will be up to the Court, not the jury, to determine whether an alleged defamatory statement is a mere opinion or one of fact.  Id.  Under Virginia common law, a private figure filing a claim of action for defamation must first show the defendant published a false factual statement of or concerning plaintiff or the plaintiff’s reputation.  Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985).  Furthermore, claims of action for private individuals to recover only compensatory damages must prove, by a preponderance of the evidence “that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Id. at 15.

In other words, for a private figure plaintiff (the standard that likely applies to the majority of us), suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

For a public figure (celebrity, politician, etc.), the statements in question must meet the “actual malice” standard described in Times v. Sullivan.  To be awarded compensatory and/or punitive damages based on a defamation claim, the public figure plaintiff must prove by clear and convincing evidence that the defendant made knowingly false statements or had a reckless disregard for the truth.  If proven, the defendant will be liable for defamatory speech.  It does not matter if the defamatory statements is a matter of public concern or private concern.  

For a private figure plaintiff who is suing for statements made on public matters, the previously discussed standard of “actual malice,” but only for punitive damages.  The plaintiff must prove, by clear and convincing evidence, that the defendant made knowingly false statements or had a reckless disregard for the truth.  But, if the private figure plaintiff is only seeking compensatory damages, there is a lower burden for the plaintiff to prove.  The plaintiff must prove, by a preponderance of the evidence, that the defendant was merely negligent in failing to discover the misstatements. 

If you determine that the content is defamatory, stay tuned for my next post with tips to help you remove the defamatory content from the web.