Online libel, slander and your reputation
As more and more people express their pleasure, frustration or anger at our products and services online, more and more of us are going to find ourselves wondering about the difference between legitimate criticism and defamation.
You may well find yourself dealing, at some point, with an vengeful individual who has made it his/her business to tell the world that you’re a cowboy and should be avoided like the plague. Negative criticism like that can seriously damage your reputation, there’s no doubt about it.
So where does the line fall between someone’s right to express their opinion and defamation?
Let’s make some distinctions first.
The Electronic Frontier Foundation defines defamation as “a false and unprivileged statement of fact that is harmful to someone’s reputation, and published ‘with fault’, meaning as a result of negligence or malice.” Slander is spoken defamation, libel is written defamation.
In plain Inglish, defamation against you is: A false statement, presented as fact either deliberately intended to harm your reputation or as the result of negligence.
Three things have to be proved to win a day-to-day defamation claim:
1) The statement was published to at least one other person apart from you
2) The false-ness of the statement
3) That it is understood a) to concern the you and b) intended to harm you
However, if you happen to be a public figure, you have to go a step further and prove actual malice.
So there you go. If you find someone saying nasty things about your business on their blog, measure it against those guidelines. If you think you’ve been defamed, it’s going to cost you time and money to prove it.
So far as online reputation management is concerned it’s pretty much academic whether or not you win a defamation case a year later because the damage is already done. By the time you emerge victorious from the High Court it will be history and the only person who will care about it will be you.
The lesson here is that you’ve got to keep in mind that online reputation management isn’t about proving ‘the truth’ to anyone. It’s about hearing what’s really being said, assessing the threats and opportunities that arise – and most importantly, responding in a way that builds your reputation instead of damaging it further.
By all means take it to court but first, take it to an online reputation expert to help you chart a course through the difficult time ahead.
What about private domain? Say someone had a rant about the neighbours in an email to a friend. The friend then forwarded or printed off the email they received and passed it around the neighbours? Would the emailer be liable and hauled into the Queens bench of the high court?
Or would the friend be just as liable for passing (republishing) the email on to others?
Thanks for the question Sue. I would apply the 3 criteria in the post:
1) Was the statement published to at least one other person apart from the neighbour concerned?
2) Was the statement false?
3) Was the statement understood a) to concern the neighbour and b) intended to harm the neighbour?
If all 3 of those things aren’t proven, then it wouldn’t be defamation (according to that definition I found at EFF at the time of writing the post). That seems logical enough to me: ie. it’s untrue, you made it public and you did so with intent to damage the neighbour in some way.
I imagine that anyone who prints (or reprints) the material for the purposes of disseminating it could be considered a ‘publisher’.