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While the individual user who actually writes and posts the defamatory story, comment, or report can always potentially be held liable for a perceived defamatory statement, the analysis is more complicated when it comes to the site or platform where the comment is posted. In many if not most cases, the defamatory statements posted online are often in the comment, review, and social platform sections of websites. In other cases, the site itself may be populated entirely or predominately with user-generated content. While many people feel that the site itself should be liable, the simple fact is that Section 230 of the Communications Decency Act provides broad protections to sites that host materials. This safe harbor protects the sites themselves from liability and often results in a counterclaim being filed against any company or individual who is unaware of this fact.
For sites that do not host user-generated content and rely on a traditional editorial model or are simply the views of a single person on a personal website or a site founded for a certain purpose, traditional notions of defamation law hold true. However, potential litigants would be wise to consider the potential for collection of any judgement and furthermore their ability to prove damages. Often times, working directly with the site is more productive to secure a removal of the offending content before significant damage can occur. Using a lawyer to facilitate these negotiations can put distance between the defamed party and the alleged defamer providing perspective and keeping discussions professional. Furthermore, an attorney can assess the situation in an unbiased matter to determine the next appropriate step to take to handle the defamation.
An expression of opinion may be “simple” or “mixed.” A “simple” expression of opinion is made after the facts on which the opinion is based are presented. A “mixed” expression of opinion is not accompanied by the facts. They may be implied by the speaker or assumed by those receiving the communication.
This distinction is significant in light of a Supreme Court decision that holds that an expression of opinion cannot be the basis of a defamation action. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. If an expression of opinion is based on disclosed, non-defamatory facts, an action is not supported no matter how unreasonable or derogatory the opinion is. However, if the expression of opinion is based on undisclosed or implied facts, support of an action depends on the understanding of the recipient of the statement, since the meaning of a communication is that which the recipient reasonably understands it to be, even if he/she is mistaken in that understanding. So if the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of a statement, the speaker is liable.
As with any claim of defamation, the plaintiff must establish that:
The statement was published by the defendant, meaning it was spoken or distributed to at least one other person other than the plaintiff;
The statement provides enough information that the plaintiff is identifiable;
The statement harmed the plaintiff’s reputation in some way;
The defendant was at least negligent in publishing the statement.
As always, truth is an absolute defense, which is especially significant when considering a claim involving an opinion. The Court has stated, “Under the First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. An opinion, therefore, will be considered defamatory only if the implication to the recipient is that there is a factual basis for the opinion that can be proven to be false.
A defendant cannot claim that the undisclosed facts were not defamatory and that he/she unreasonably formed a defamatory opinion, because the meaning of the communication is based on the reasonable understanding of the recipient.
Furthermore, a factual statement, whether words or images, may constitute a communication that is considered defamatory based upon the meaning conveyed to recipients of the communication through its presentation. If the statement of fact is accompanied by derogatory implications or associations, the publisher is liable. Dixson vs. Newsweek, Inc., 562 F.2d 626 (10 Cir. 1977).
Cartoons and caricatures are generally not considered defamatory when they are based upon known or assumed facts and are intended for entertainment and not to be taken seriously.
An individual member of a group may be defamed by a statement if:
The group or class is small enough that a reader or listener can reasonably understand that the statement refers to the plaintiff; and
The reader or listener can reasonably infer that the statement refers to the plaintiff based on the circumstances of the publication.
Although the size of the group is not defined by common law, generally plaintiffs have recovered damages when groups have included 25 or fewer people. The circumstances surrounding how the statement is presented has a significant influence on the success of such a claim. A defamatory statement alleging that “most members” of a group of 25 are guilty of bad behavior may defame the members of that group, but the same statement alleging “one member” of the group is guilty of the behavior would probably not be considered defamatory. Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952)
As in any defamatory communication claim, the plaintiff may collect actual damages or prove special damages. Defamation per se still applies, in which actual damages are assumed and need not be proven in the following situations:
Allegations that harm a person’s trade, profession or professional standing;
Allegations that a person is infected with a sexually transmitted disease;
Allegations that an unmarried person is unchaste;
Allegations of criminal activity.
Defenses are consistent with any defamatory communication claim. Truth is an absolute defense. Expiration of a statute of limitations is a defense. The publisher of a defamatory statement may claim privilege if the statement was made in a court of law or involved a public figure.
The meaning of the communication—what the recipient understood it to mean—is significant when a defamation claim is tied to a group or class, because the plaintiff must be identifiable from among the members of the group. The publisher’s intention is immaterial as long as the plaintiff can prove that the communication was reasonably understood to refer to the individual members of a group small enough to be identifiable, and that the publisher was negligent in failing to anticipate such an understanding.