Some Blogger Called Me a Jerk!

…but can I sue him for libel?

Volume CVIII, No. 5May, 2008

Harvey Mars, Esq.

They say the Internet is the great equalizer. Anyone with a computer, regardless of who they are, may access and post information on it and potentially reach a worldwide audience. It is in a sense the greatest democratic platform we have ever known. Nonetheless, unlike more traditional public forums, such as newspapers and TV, there are absolutely no filters or thresholds to what may be posted. Thus, unwittingly, the Internet has become the permanent home for both fact and fiction. For this reason it has become a haven for litigation, especially defamation litigation. 

A “defamation claim” exists where litigants can prove that they have been subjected to a false statement (written or spoken) by another which is not protected by some form of immunity and which has caused them damage, either financial or to their reputation (or both). False statements that tend to injure an individual in the course of their profession are considered “libel per se,” meaning that damages do not have to be proven. For instance, if someone contends that their doctor has committed malpractice when she has competently performed her professional responsibilities, this content is potentially “defamatory per se.”

There are several defenses to a defamation claim. One, of course, is that the factual contention is actually true. Another is that the contention is not fact, but is actually opinion. Whether an assertion is factual or not is one that is developed from the content and the context of the communication as a whole. If no reasonable reader would construe the statement in question as being an assertion of fact, then it is not actionable.

These common law principles are applied to the Internet. However, a whole new dimension is added when the communications are posted anonymously, as many postings are. Without knowing who the poster is, suit is often difficult if not impossible. Furthermore, pursuant to section 230 of the Communication Decency Act of 1996, 47 USC § 230, providers and users of an interactive computer service are not deemed liable for information provided by another information content provider. This law immunizes Internet service providers from liability from suit for false or misleading information placed upon their blog or through their web service. Therefore, if anonymous Internet users write something that is libelous, their ISP could not be sued.

Within this jurisdiction, there are two recent interesting decisions that demonstrate the limitations on suits involving Internet defamation. In Versaci v. Richie, 30 A.D. 3d 648 (1st. Dept., 2006), an attorney had sued a blogger for referring to him as a “so-called attorney.” The court dismissed the suit because the statement was deemed an opinion given the context of the communication: a gripe blog where individuals complained just about anything that they wanted to, since no reasonable person would construe the phrase as meaning that this individual was not an attorney in that context.

In Greenbaum v. Google, Inc., 18 Misc. 3d 185 (Sup. Ct., 2006), an elected school board member brought an action against an anonymous blogger and the Internet service provider that published allegedly defamatory comments. The plaintiff first sought discovery of the blogger’s identity. The court held that the ISP was immune from suit under section 230 and therefore could not be joined as a party. The court went on to examine the content of the communications at issue and found that they were not actionable because contextually they were opinion.

Due to the specific complexities of Internet defamation, it is easy to fathom that most claims will not be successful. Another factor militating against suit of course is the great expense involved. Before initiating suit, one most examine the net benefits versus the net costs involved. An individual with a credibly established fine reputation has little to gain from commencing suit against a malicious anonymous blogger or Web site owner. Very few reasonable people would give credence to negative comments in that circumstance. 

In the final analysis, anyone distressed by Internet commentary should take comfort in the fact that while everyone may have access to the Internet, not everyone believes everything they read!

Most newspapers check facts and sources and allow editorials presenting differing points of view. If a blog or a Web site does not adhere to these standards, it simply speaks volumes about their credibility. 

Harvey Mars is one of Local 802’s lawyers. Legal questions are welcome from 802 members. E-mail them to Past columns are available at; click on “Local 802 News,” then “Publications and Press Releases,” then use the drop-down search menu to look up “Legal Column.” Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.